HQVD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2632
•21 August 2023
HQVD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2632 (21 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3757
Re:HQVD
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:21 August 2023
Place:Melbourne
The Tribunal affirms the decision under review.
......................[SGD].........................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – national of United Kingdom – Partner (Class BS) (Subclass 801) visa – failure to pass character test – serious non-physical sexual offences – whether another reason cancellation should be revoked – consideration of Ministerial Direction No. 99 – best interests of minor children – decision affirmed
Legislation
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183
CKL21 v Minister for Home Affairs [2022] FCAFC 70
Director of Public Prosecutions v Estrada (a pseudonym) [2020] VCC 845
ECE21 v Minister for Home Affairs [2023] FCAFC 52
Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1594
Meyrick v Minister for Home Affairs [2020] FCA 677Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Secondary Materials
Direction No. 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
21 August 2023
BACKGROUND
HQVD applied for review on 31 May 2023 of the decision by a delegate of the Minister dated 29 May 2023 not to revoke the mandatory cancellation of his Partner (Class BS) (Subclass 801) visa. The mandatory cancellation occurred on 15 July 2020 under s 501(3A) of the Migration Act 1958 (the Act).
Mandatory cancellation arose from the effect of s 501(6)(a) and s 501(7)(a) of the Act in that HQVD was determined to have a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more, and was at the time serving a sentence of imprisonment on a full time basis. HQVD subsequently made representations in respect of the revocation of the cancellation of his visa, resulting in the decision under review.
HQVD was sentenced to two and a half years’ prison in 2020 having plead guilty to a series of charges arising from the production and possession of child abuse material, including images of his children. The offending took place between 2016 and 2018 when charges were brought, following which HQVD was granted bail. This is the only criminal offending engaged in by the Applicant at any time in his life.
HQVD was born in the United Kingdom in the late 1960’s and qualified in teaching. He thereafter spent most of his professional life in the Middle East where he met and married his former wife, an Australian citizen. HQVD made regular trips to Australia between 1992 and 2013, when he and his family returned to reside permanently in this country.
The Applicant’s three children are currently in their mid-to-late teens, and he is divorced from their mother. Contact with his family is now subject to a Family Violence Intervention Order (IVO) granted for a period of ten years and expiring on a date in 2031.
HQVD was self-represented and lodged the following:
(a)a Statement of Facts, Issues, and Contentions, dated 12 July 2023 (ASFIC);
(b)an updated SFIC, dated 2 August 2023 (Updated ASFIC);
(c)a bundle of documents comprising various materials (AB); and
(d)a bundle of statements from several witnesses (Exhibit A1).
The Respondent lodged documents pursuant to s 500(6F) of the Act (G), and both supplementary (SG) and further supplementary (FSG) documents. These other bundles comprise material obtained under summons relating to the criminal process, and other materials from the Applicant’s time in detention. The G documents include a large amount of relevant material arising in the initial revocation request, including written submissions of HQVD’s previous legal representative (G5, N).
In addition to the evidence given by the Applicant personally, evidence was provided at the hearing by two prison chaplains (who I will designate PC1 and PC2), four friends of HQVD (who I will designate F1-F4) (all witnesses numbered in order of appearance), and by Mr Tim Watson-Munro, consultant psychologist.
The Tribunal was approached by a legal representative of two third parties seeking to lodge statements on the afternoon of the day prior to the hearing, being HQVD’s former wife and sister-in-law. This material, which was not made in support of the Applicant nor with his knowledge, was forwarded to the parties by the Tribunal for their information.
At the commencement of the hearing, the Respondent noted that if this material was considered by the Tribunal, procedural fairness would likely dictate hearing from the authors in person, and that they did not appear to be available for this purpose. The Applicant adverted to the possible challenges of conducting cross-examination, in light of the IVO. I determined that the potentially prejudicial nature of the material in the circumstances in which it became known, outweighed its likely evidential impact, noting that a victim impact statement from HQVD’s former wife forms part of the materials lodged. Accordingly, the statements were not accepted.
LEGISLATION
I have identified above, in summary form, several key provisions of the Act found in s 501 dealing with refusal or cancellation of a visa on ‘character grounds’. The ‘character test’ is articulated in s 501(6) and, as noted, in this case arises in the context of a substantial criminal record.
Under s 501CA(4), such a mandatory cancellation decision may be revoked if, representations having been made, the decision-maker is satisfied either that the person in question passes the character test, or ‘that there is another reason why the original decision should be revoked’ (s 501CA(4)(b)(ii)).
Persons making decisions under s 501CA must comply with any direction of the Minister under s 499 of the Act. In this case, the relevant instrument is Direction No. 99 dated 23 January 2023 (the Direction). These reasons are structured around the terms of the Direction, but I note that it also sets out the following Principles [5.2] that provide the framework for decision-making:
(i)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.
(ii)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(iii)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(iv)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(v)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(vi)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
ISSUES
Following from the summary of the legislation above, there are two issues for consideration: whether HQVD passes the character test; and, if not, whether there is another reason the mandatory cancellation decision should be revoked.
On the basis of the material before me, I am satisfied that the Applicant fails the character test. This is for the reason that the National Criminal History Check (G5, A) and the sentencing remarks of the County Court (G5, B) (Director of Public Prosecutions v Rex Estrada (a pseudonym) [2020] VCC 845), confirm that HQVD was sentenced to a total effective sentence of two years and six months imprisonment for his offending.
Accordingly, I will now consider the second issue with reference to the Direction. I note that while I must consider the factors identified in the Direction, I am not limited by it in seeking to determine the question posed by the legislation.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The Direction requires decision-makers to keep in mind the Government’s commitment to protect the Australian community from harm, with particular regard to the principle that remaining in Australia is a privilege conferred in the expectation that non-citizens are law abiding and will not cause or threaten harm [8.1(1)]. There are two elements to this consideration which will be addressed separately.
Nature and seriousness of conduct to date
Certain crimes are identified in the Direction as being viewed very seriously, including sexual crimes [8.1.1(1)(a)(i)], but this provision does not limit the range of conduct that may be considered. Specified additional relevant factors include the sentence imposed, the frequency of offending, and its cumulative effect [8.1.1(1) (c)-(e)].
The sentencing remarks (G5, B) outline the charges and circumstances of the offending [1]-[14]. HQVD was sentenced in respect of: three charges of indecent act with a child under 16, and three charges of sexual activity in the presence of a child; one charge of produce child abuse material; and one charge of possess child abuse material. Each charge carries a maximum sentence of 10 years’ imprisonment.
The offending behaviour was detected in 2018 when HQVD was found by his wife in the kitchen naked from the waist down and with an erect penis, and apparently taking a photo of himself but with his daughter, unaware, in the background. By this time the couple had been married for over 20 years but, for approximately two years, had been separated and living under the same roof. Video footage on HQVD’s phone was then found which led to the investigation uncovering the offending.
The charges involving HQVD’s children were further detailed as addressing approximately 50 images taken in the vicinity of a daughter in late 2016 and, in summary, a range of largely overlapping incidents involving another daughter and a son over slightly different time periods in 2017 and 2018. There were several images in which HQVD is holding his erect penis in the presence of a daughter in 2017, and an image of HQVD with a daughter on his lap with superimposed text reading ‘8 year old on my cock’, the caption alone rendering this child abuse material.
In respect of the possession charge, various electronic devices were found to contain 4,911 images or videos of child abuse material (2,401 images and 16 videos being animated or virtual), including material of sex acts between children, and smaller amounts of material involving adults, including penetration, and a smaller amount involving sadism, bestiality or child abuse.
Upon arrest, HQVD made full admissions but denied being aroused by or interested in naked children, however also acknowledged the seriousness of the images and expressed remorse [15]-[21]. The sentencing judge acknowledge there was no intent or evidence of sharing images involving his own children but described the offences as ‘inherently grave’, and downloading material from the internet as ‘a very serious crime’ [22]. The judge stated that offenders provide a market for production and dissemination of child abuse material which requires subjecting children to criminal acts involving sexual abuse and exploitation, which would be ‘regarded universally as serious crimes’, of which there is inevitably a permanent record [23]-[24].
While accepting that HQVD’s children were unaware of his offending conduct, the sentencing remarks note that they experienced the breakdown of the marriage, and both school and home relocation [26]. The judge quoted from victim impact statements provided by HQVD’s wife and sister-in-law [27]-[29]: the offending has denied the children a family unit, and they are ‘completely devastated that their father is absent and has betrayed their trust’; his wife and children are all in counselling and therapy to make sense of their circumstances; and his sister-in-law feels suspicious and questions how they can heal from the ‘unspeakable acts’.
A range of personal factors were considered by the sentencing judge in respect of mitigation [31]-[38] including: HQVD’s age (in his mid-50’s); growing up in a military family with frequent relocation; and, being a victim of bullying and sexual abuse at a young age at a Catholic boarding school. Having obtained professional qualifications, HQVD also experienced a period of trauma arising from experiences in a conflict in the Middle East.
The judge acknowledged that a guilty plea was entered at the first available opportunity, that comprehensive admissions were made, and taking a number of factors into account, the plea was given significant weight [39]-[43]. Sentencing was also made on the basis that HQVD was ‘truly profoundly remorseful’ [47].
At the time of sentencing, HQVD had already participated in a sex offender’s treatment program, and evidence was provided by a forensic counsellor, Mr Geoffrey Burrows, and a psychologist, Dr Mathew Barth [48]-[55]. Dr Barth diagnosed an adjustment disorder with mixed anxiety and depression and noted that offending insight was still developing. He also formally assessed a moderate risk of reoffending, noting HQVD’s willingness to continue treatment.
The sentencing judge noted further that: HQVD’s prospects for rehabilitation were ‘reasonably good’, and the risk of reoffending would be ‘somewhat reduced’ with ongoing treatment [61]. Sentences imposed for the charges involving images of HQVD’s children ranged from three months’ to 12 months’ imprisonment, and the Applicant was sentenced to two years’ imprisonment on the possession charge [71]-[79].
In the absence of a guilty plea, a total effective sentence of 45 months imprisonment would have been imposed, with a minimum of 30 months before being eligible for parole [89]-[92]; and, due to the nature of the charges, HQVD was determined to be a registered sex offender for life [94]-[98].
In a written statement (G5, D), HQVD explains the offending with reference to an addiction to pornography manifesting itself in taking photographs in risky situations, as a form of a ‘private fetish’ to overcome stress including from marital strain.
At the hearing, HQVD gave evidence consistent with the personal background summarised above. The Applicant stated that he considered he grew up with confused ideas about nudity and sexuality, but went on to develop relationships with women as a young man. He described experiencing other trauma including finding his father deceased during a visit home when a university student, and attempting resuscitation, stating that he had never received any form of counselling during his life in relation to this incident.
HQVD gave evidence about marital strain arising from what he considered was his former wife’s problems with excessive alcohol consumption, and that conception of their children required extensive rounds of in-vitro fertilisation. He also stated that his interest in child pornography had probably commenced during his time working overseas, commencing around ‘2008/2009/2010’. Due to local internet restrictions this was accessed, in part, from social media applications. He stated that that he destroyed this material prior to moving to Australia.
HQVD described how after resettling in Australia he came to turn again to pornography and also to heavy gambling. He stated the pornography use became more problematic in 2014, 2015 and 2016 and included viewing sessions morning and night. He stated that he turned to ‘illegal’ porn at this time of a ‘darker’ character. HQVD described his photography as being for self-gratification and related to notions of control. The Applicant denied collecting the material described in sentencing remarks as involving sadism, bestiality and abuse and stated that material was collected from public searches only, as he was not a member of any group and did not access the ‘dark web’. He also raised a question about the identity of the young girl in the image bearing a caption.
Submissions and findings
HQVD’s initial revocation submission (G5, N) acknowledges the very serious nature of the offending and in his submissions at the hearing, the Applicant fully accepted the seriousness of his criminal acts, noting that it was ‘inherently grave’. He did not endorse an earlier written submission that his offending attracted a sentence at the ‘lower end of the scale’ (G5, N [20]), and the Applicant submitted that the offending was serious, regardless of the sentence imposed. HQVD noted that his own evidence as to the consumption of pornography, including historically, demonstrated that his offending was frequent.
The Respondent submits that the offending is very serious, and was especially egregious in that it involved his own children (RSFIC [68.1]). It is also submitted that the sentencing outcomes are consistent with published statistics for similar kinds of offence and for some charges is at the middle to upper range [68.2.2], and the offending can be understood as frequent given the volume of images involved [68.3].
At the hearing, the Respondent’s representative drew on HQVD’s evidence as to accessing child pornography in the Middle East to emphasise the ongoing nature of his conduct, noting that the Direction embraces an offence or conduct in another country, where it is classified as an offence in Australia [8.1.1 (h)]. Reference was also made to the volume of images (of both his own children and of child pornography) and the length of time over which the offending was said to have occurred (according to the sentencing remarks). While not stressed with any force, it was contended that materials obtained on summons from Victoria Police demonstrated that a body of material larger than that identified in sentencing had been located on HQVD’s electronic devices during the investigation.
In relation to the cumulative effect of offending, reference was also made to the discussion of gravity in the sentencing remarks. The Respondent also strongly endorsed the sentencing judge’s remarks about the fact that child pornography is not a victimless crime. Reference was also made to the impact described by the sentencing judge on HQVD’s children. It was contended that these identified dimensions capture the harm arising from this form of offending.
The Applicant’s evidence about the scope of offending conduct in Australia was only briefly stated, and not pressed in submissions. However, I note there is clear authority for the proposition that a Tribunal is not able to ‘go behind’ the conviction and must generally accept the essential facts adopted by a sentencing judge (see for example Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1594 at [74]-[78]). This applies equally to the Respondent’s short submissions about the material identified during the initial police investigation. Accordingly, I restrict my consideration of criminal conduct to the offending identified in the sentencing remarks.
It is eminently clear that HQVD’s offending is to be considered among the most serious kind of sexual offending, and accordingly I find that it is very serious. I also accept the Respondent’s contention that accessing child pornography outside Australia by the Applicant is also very serious conduct.
I accept that HQVD personally did not place any interpretation or gloss on his sentences. I accept the Respondent’s submissions based on that material from the Sentencing Advisory Council cited (RSFIC [68.2.2]). While some individual custodial sentences appear to have been at the lower range, this cannot be said about the sentence imposed for possession of a substantial body of child pornography.
Consideration of frequency and any trend in seriousness is slightly challenging. I accept that, strictly speaking, offending conduct also occurred in another country due to HQVD’s admission to the consumption of child pornography prior to the conduct in Australia. However, there is no independent evidence to assist in weighing the seriousness of this earlier conduct. HQVD’s conduct in Australia, however, spanned several years and led to the amassing of a substantial collection of pornographic material. By his own evidence the Applicant’s addictive habits led to ‘darker’ material, and this appears to be substantiated by the description included in the sentencing remarks.
Accordingly, despite the fact that HQVD’s criminal record is short, on balance I find that the frequency and cumulative impact of HQVD’s offending to be substantial.
Risk to the Australian community
The Direction requires decision-makers to have regard to the Government’s view that the Australian community’s ‘tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ [8.1.2(1)]. Some harm may be so serious that any risk it will be repeated is unacceptable. I am to consider the nature of harm arising from ‘further criminal or other serious conduct’ and its likelihood, including evidence of rehabilitation [8.1.2(2)(a)-(b)].
In a written statement (G5, D), HQVD states the consequences of re-offending are ‘so severe that they simply are not an option’, and everything he does from this point is for the good of his children. He describes strategies around the use of electronic media and healthier ways which he has developed to deal with stressful situations. HQVD also states he has a support network that monitors his state of mind who stand ready to intervene and that he plans to engage in gainful employment. A later statement (G5, N3) details at length aspects of rehabilitation, the Applicant’s perspective on risk, and plans for the future [51]-[72]. This includes living with F3, ongoing counselling, and pursuing inquiries he has made about employment.
At the hearing, HQVD stated that he remained offence-free since being charged, that he spent substantial time in the community on bail, and that he has continued to remain free of his prior addictive behaviours. HQVD noted that family law proceedings took place while he was in prison and consequently, his former wife had care of the children and 100% of the family assets, which allocation I understood him to have consented to. He intends to challenge the terms of the IVO and to seek that parenting arrangements with minor children be amended.
With respect to employment options in the future, HQVD considered there were roles for which he could apply for, including work he had previously undertaken that did not require a working with children check. He described the lifetime sex offender registration as a ‘safeguard’, and explained the nature of the reporting requirements. The Applicant also expressed his desire to work for the benefit of victims of child pornography, and advocate for those in immigration detention.
In their written (G5, N9, N10; Exhibit A1) and oral evidence, both PC 1 and PC 2 attested to having had extensive contact with the Applicant during and since prison. They spoke of how deeply they have been impressed by HQVD’s sincere remorse, commitment to rehabilitation, and strength of character in general. PC1 described him as the ‘best case scenario’ of a person who has learned from their offending and punishment. This witness also observed that he had been counselled against providing a statement in support of the Applicant, but decided it was nonetheless appropriate. PC2 stated that he had only provided support for six prisoners during his eight-year career in corrective services.
PC1 showed a particular level of insight into offender recidivism in general, against a background of a relatively broad understanding only of HQVD’s offending, albeit HQVD offered to inform him about his crimes. PC1 maintained in evidence his conviction that the Applicant will not reoffend and observed that he administered a rite of confession. PC2 demonstrated somewhat greater knowledge of the offending, and noted that he considered the Applicant had faced challenges in detention with fortitude. The witness stated that his opinion that HQVD would not pose any danger to the community was based on the genuineness of conversations they have had, the Applicant’s determination to make the best of his situation, and wish to repair the damage from his offending.
Witnesses F2 and F4 are both former work colleagues of the Applicant from a teaching role undertaken by HQVD at the time of the offending. Their written statements form part of the materials (G5, G5 and N7; G5, G1 and N4 and a further statutory declaration in Exhibit A1, respectively). Both witnesses attended at court appearances and both stated that they were aware of the nature of his offending. More particularly, F2 and F4 were approached by HQVD to participate in the closing phase of his prison rehabilitation program conducted by the Corrections Victoria Forensic Intervention Services, and known as Same Page (AB9).
F2 stated that in the Same Page program they were exposed to the opinions of the Applicant’s counsellors and agreed to be part of an external support network. They are educated about what to look out for should HQVD return to addictive behaviours, and would ‘call him out’. F4 gave two examples of past incidents which she considered involved examples of poor self-regulation by HQVD, stating that these had not affected their friendship. She noted that she was really shocked by the news of his offending, and F4 stated that she was confident the Applicant would share information in the future about any emerging risks he experienced.
In response to questions from myself, both witnesses acknowledged that HQVD had previously had multiple forms of addiction. They accepted that despite being close work colleagues, they had not in the past perceived the level or nature of his problematic conduct at the time.
F1 confirmed in evidence his long standing friendship with HQVD, which included being familiar with his family life in Australia immediately prior to the offending. He gave a relatively detailed description of the offending, but accepted that he had limited knowledge of its scope. F1 also confirmed per his written statement (G5, N12) that following this he had offered HQVD accommodation at his house, trusting him to be of good character even with their young child in the home. F1’s offer of character support to the Applicant had led HQVD’s former wife to sever her equally longstanding friendship with F1.
F3 is the ex-husband of HQVD’s former sister-in-law; he confirmed in evidence that their former wives are sisters. In his written statements (G5, G10 and N6) and oral evidence, F3 stated that he was shocked with the news of HQVD’s offending and initially did not want to be involved with him. However, he became aware of its nature and then attended court appearances. F3 stated that every person needs to be given a chance to redeem themselves and confirmed that he has also offered the Applicant accommodation if released into the community, to get back on his feet.
Reports provided by Mr Burrows (G5, N2; AB7) demonstrate that HQVD participated in a total of 48 sessions of a Sex-Offender Treatment Program between mid-2018 and mid-2023, the majority of which were conducted in person prior to incarceration and later, detention. A 2019 report states that at that time, the Applicant needed to ‘develop more comprehensive insight into his problematic arousal and how they relate to his offending behaviour’ (G5, N2, 176). In 2020, he was described as having continued to address his interpersonal and sexual issues and to have engaged positively with the program (at 183). In 2022, the Applicant was described as having ‘comprehensive insight into his offending behaviour and was able to talk at length about the factors which contributed’ (at 185).
In his report dated 21 December 2022 (G5, N1), Mr Watson-Munro summarises prior documentation, including the reports of Dr Barth which were not otherwise before the Tribunal. Relevant personal background includes reference to the decision of HQVD’s former wife to unilaterally relocate to Australia in 2013 and loss of sexual interaction with her in 2016 (G5, N1, 161). Instances of the Applicant having sexual encounters with men as an adult are also identified, and Dr Barth described the descent into the use of ‘‘darker” and “taboo” content for increased excitement and arousal’ (at 162). Dr Watson-Munro notes that in addition to HQVD’s mental health conditions, Dr Barth also diagnosed an Unspecified Paraphilic Disorder (at 164). This disorder is described by Dr Watson-Munro as in remission (at 163).
Dr Barth initially assessed HQVD as being in the moderate range for recidivism, which may reduce with further treatment and the deterrent aspects of sex offender registration (at 164). In a report in late 2019, Dr Barth refers to the engagement with Mr Burrows but did not yet feel able to reduce the risk assessment (at 165).
In his own written opinion, Mr Watson-Munro notes the prior diagnoses, addiction to gambling, ongoing features of Post-Traumatic Stress Disorder, as well as the suicide death of a business partner and loss of income (at 166). Mr Watson-Munro states that the other expert reports ‘give rise to some optimism of a reducing risk’ of reoffending and expresses the view that the risk is now ‘trending from Moderate to Low risk (at 167). This is based on: insight; consistent involvement in treatment; remorse; and, commitment to future treatment. Mr Watson-Munro adds that a ‘sense of regret in relation to his family is reinforcing his motivation to maintain treatment and live a law abiding existence’.
At the hearing, Mr Watson-Munro stated that individuals who engage in non-contact sexual offending have better prospects than those that are predatory, or have physical contact. He also considered that HQVD’s level of commitment to treatment was not usually seen. Dr Watson-Munro explained that the Applicant’s sexual disorder had elements of voyeurism and exhibitionism and I understood him to accept, in general terms, the proposition that a paraphilic disorder is of an enduring kind. In this case, however, there was no early entry into the criminal justice system, together with insight and commitment to treatment.
When asked about the desirability of future treatment, Mr Watson-Munro stated that were HQVD his own patient, he would recommend weekly therapy during transition into the community for a period of up to 12 months. He explained further that paraphilic disorders are identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) as different types of abnormal sexual behaviour, not all of which involve breach of the law. I asked about the inevitability, if any, of progression in abnormal behaviour and Mr Watson-Munro responded that this often depends upon other dynamic factors such as disinhibition arising from drug use. He also considered the involvement of HQVD’s children was ‘opportunistic’, and noted the opportunity had in this case been removed.
Additional material demonstrates that HQVD participated in early 2023 in a financial counselling service with a Gambler’s Help program provide by a community health service (AB8).
Submissions and findings
In a written statement (G5, N3), HQVD describes the insight gained including from the Better Lives group program completed in prison, and identifies other productive activities including peer support work and volunteer roles [54]. He further states that he believes he poses no further risk to the community and notes his prior life of pro-social behaviour [59]-[60]. At the hearing, HQVD identified a number of factors that he had submitted which meant that he does not present an unacceptable risk. He essentially restated the protective factors identified by Mr Watson-Munro and HQVD also acknowledged that there is always some residual risk.
HQVD referred in submissions to the support provided through the Same Page program, to the fact that he was offence-free in the community on bail, and that his behaviour in jail and detention has been positive, despite the conditions. Indeed, he emphasised that positive behaviour in this stressful environment demonstrated his resolve and the effect of rehabilitation. The Applicant elaborated on the specific coping strategies that he now utilises.
The Respondent contends (RSFIC) that the Applicant represents an unacceptable risk to the community and that the harm arising would be grave. Several factors are identified as supporting this argument [72]-[83]:
(a)the seriousness of his conduct means that the tolerance for any risk is diminished;
(b)Mr Watson-Munro’s opinion about the risk trend should be understood as guarded;
(c)HQVD has a long history of pornography use;
(d)prior statements by the Applicant suggest attempts to minimise his offending, understating his actions;
(e)HQVD has in the past denied a sexual interest in children;
(f)the fact of being granted bail is irrelevant for the purposes of risk assessment under the Direction; and
(g)the stressors relied on as being part of the context of the offending are commonplace.
At the hearing the Respondent’s representative stressed that on the evidence, several years following Dr Barth’s risk assessment HQVD’s risk of reoffending is only trending from Moderate to Low, and this reflects the seriousness of the offending. While the Applicant gave evidence that he has no longer maintained a sexual interest in children, it should be recalled that he was diagnosed with a specific sexual disorder, pertinent to the likelihood of relapse should HQVD’s behavioural measures not be sufficient. Moreover, the risk is enhanced in the context of potential exposure to stressors arising when the Applicant seeks to re-establish himself in the community. It was contended that future efforts to rebuild a relationship with his children carry a significant risk of disappointment. This was particularly so as it should be inferred that the family law process took into account all relevant factors and a challenge would be unlikely to be successful. This consideration should be given very significant weight against revocation.
The decision of the Full Court of the Federal Court in CKL21 v Minister for Home Affairs [2022] FCAFC 70 incorporates relevant consideration of the nature of risk assessment in matters of this kind. The court notes that authorities have found a ‘significant difference in reaching findings about the occurrence of past events compared with findings about the likely occurrence of future events’ [73] (citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559). In particular [74]:
In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
The Court in CKL21 stated further that concluding a person is an unacceptable risk involves an evaluative judgment, which must have a probative basis [77], and each case turns on its own facts [87]. That said, the court also observed that authority clearly holds that a decision-maker is entitled to conclude that ‘even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious’ [66]. The court cites with approval the decision of BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183 (at [28]-[29]) and the concept used there of ‘overall risk’, being a combination of likelihood and gravity, weighed against other relevant factors.
The evidence before me indicates that the perspective of the sentencing judge as to rehabilitation has largely been borne out. HQVD has engaged positively with treatment and I accept Mr Watson-Munro’s expert opinion that his risk of future reoffending is trending from moderate to low. The submissions from both parties, appropriately, traversed the considerations highlighted above as regards the nature of the process of assessing the likelihood of future offending.
The evidence demonstrates there are a number of important factors in HQVD’s favour including: previous and ongoing commitment to relevant therapeutic treatment; an informed group of friends who have accepted responsibility to actively participate in helping the Applicant maintain pro-social behaviours; and, accommodation on release. I would add to this: his apparent insight, albeit developed over some years; the strong references from prison chaplains who I consider relatively well placed to comment; and, HQVD’s high motivation to repair the damage to his relationship with his children.
Mr Watson-Munro outlined in evidence his recommendation for a relatively substantial ongoing program of therapy to support transition. I consider this speaks to the inherent challenges of community reintegration in the context of a mental health condition related directly to his offending behaviour. While his reporting indicates the condition is in remission, the need for ongoing support and the risk rating itself continuing at a point somewhere between low and moderate are important factors telling against HQVD’s submission as to the level of future risk. These factors also count against the Applicant’s submission about the protective effect of the removal of opportunities to offend (via reporting obligations and the lack of access to his children).
Given my findings as to the gravity of the offending behaviour, I find that it follows that future offending also has the potential to carry very serious harm to the Australian community. I find that the level of ‘overall risk’ in this case to be quite high, and I consider this would remain the case even were the expert rating of risk to sit at or near a low risk of reoffending.
In short, I prefer overall the Respondent’s contentions as to the risk of any future harm as unacceptable.
Summary finding
It is conceded in the Applicant’s formal revocation submission (G5, N) that this primary consideration weighs against revocation, but is not determinative of the matter overall. In his oral submissions, HQVD contended that his worst behaviour took place at the worst time in his life; seeking to make the point that there is not a simple causal link between stress of any kind, and future reoffending.
The Respondent contends in its RSFIC that this primary consideration weighs heavily against revocation and, at the hearing, this was put as very significant weight against revocation.
In light of the inherently grave nature of HQVD’s offending, and the unacceptable nature of future risk of harm, I find that this consideration weighs heavily against revocation.
Family violence committed by the non-citizen
This consideration expresses the Government’s serious concerns about conferring the privilege of remaining in Australia on those who engage in family violence [8.2(1)]. It can embrace acts short of criminal offending [8.2(2)], and factors including frequency, cumulative impact and rehabilitation achieved are relevant considerations [8.2(3)].
HQVD’s former wife alleged in her statement to police what appear to be prolonged acts of family violence perpetrated against her, particularly when they lived overseas (SG6(d)). In his evidence, the Applicant denied the most serious example referred to in that statement, but acknowledged having slapped his wife during an episode in which he said he found her passed out, intoxicated, while caring for their children.
This acknowledgement means that prior written submissions by both parties are superseded. Accordingly, at the hearing it was contended by the Respondent’s representative that some weight may be given to this consideration against revocation.
I find that HQVD has committed at least one act of family violence against his former wife some time in the past. I have no other evidence as to other or more recent conduct relevant to this consideration.
Under the circumstances, I find that this consideration weighs against revocation, but only slightly.
The strength, nature and duration of ties to Australia
Consideration must be had to the impact of a decision upon immediate family members in Australia where they are citizens, or have the right to permanently remain here indefinitely [8.3(1)]. More weight should be given to ties to Australian citizen children [8.3(2)] and consideration must also be given to the strength, nature and duration of family or social links more generally [8.3(3)]. Ties to the Australian community more broadly must also be considered, with particular reference to the length of time a person has resided in the community with weight given where a positive contribution was made, and less weight where they were not resident during their formative years, or commenced offending shortly after arrival [8.3(4)].
In a written statement (G5, N3), HQVD details his ties to Australia [82]-[90]. He states the most important events in his life have taken place in Australia and he names a number of members of his extended family that live here, identifies a larger number of cousins, and also singles out his nieces, being the adult children of F3. He refers also to his strong emotional and professional ties to this country.
In his evidence, HQVD stated that he had regularly holidayed in Australia during his time working overseas following his marriage to his ex-wife. They had also invested in property here for some time. HQVD added that he identified from early on in his relationship with the Australian spirit. I understood the Applicant to state that it was due to issues of health and wellbeing arising from his wife’s alcohol use that largely determined the timing of their move to live here permanently. HQVD gave evidence that he wished to secure an executive appointment, and that he initially did not follow the family to Australia, but later determined he could not live without them.
F1’s written and oral evidence attests to their firm and long-lasting relationship, and the Applicant himself refers to F1 as his best friend (G5, N3). The strength of the relationship between HQVD and F3 was also evident from written and oral evidence. I noted above the ongoing relationships with F2 and F4.
In a written statement (G5, N13), HQVD’s brother states that he was never particularly close to the Applicant, but he would like to have a closer relationship.
HQVD’s revocation submissions, made in the context of an earlier version of the Direction, identify his very strong ties to Australia, including his immediate and extended family and friendship group. It is contended significant weight be given in favour of revocation.
The Respondent contends in its written submission that HQVD has social and emotional ties to Australia, and has contributed positively (RSFIC [88]). Several specific contentions are then made:
(a)the Applicant’s relationship with his children and former wife should be understood in the light of the IVO with the implication that they do not wish to have contact with him;
(b)his brother’s statement indicates they do not have a close relationship;
(c)HQVD spent a total of approximately 18 months in Australia over nearly twenty years, and since arrival in 2013 has spent more than three years in prison or detention; and
(d)he was not ordinarily resident here during his formative years.
At the hearing, it was acknowledged that HQVD has substantial social links to Australia and that his loyal friends would be disappointed were he to be removed. It was contended there is no evidence from the children, and their interests are further addressed in the relevant primary consideration. Overall, it was submitted some weight in favour of revocation be afforded this consideration.
I accept at a general level the Respondent’s contentions as to the limited length of time HQVD spent in Australia either on visits, or contributing as an employee and family man after relocating here. That is, the Applicant came here as a mature adult and has spent a relatively small amount of his life here.
On the other hand, the Direction refers throughout to ties which manifest through relationships. I accept from the evidence overall that HQVD presently has a far greater and more meaningful connection to Australia and Australian citizens or permanent residents than any other country.
I consider the Respondent is correct to point to the necessarily fractured relationship between HQVD and his children as a result of the IVO. However, a notional tie remains and is worthy of some weight.
On balance, I consider the moderate weight in favour of revocation should be given to this consideration.
Best interests of minor children in Australia affected by the decision
A decision maker must make a determination about whether non-revocation is, or is not, in the best interests of a child affected by the decision [8.4(1)], and who is or is expected to be under 18 at the time of a decision [8.4(2)]. A range of factors must be given consideration [8.4(4)].
In a written statement (G5, N3), HQVD declares that he had a close and loving relationship with his children throughout their lives and played the main parenting role [73]-[74]. The materials also include a number of photographs showing the Applicant in the company of his children. Evidence of witnesses, including F1 and F3 in particular, supports the claims made by the Applicant about the warmth and closeness of his parenting.
HQVD gave relatively cautious evidence about the nature and extent of what he considered to be his former wife’s issues with alcohol abuse. That is, I consider the Applicant wished to appear rational and reasonable, rather than unduly negative. Material lodged by him (AB4 and 5) appears to sustain his oral evidence about her situation, at least when resident in Australia, speaking to a driving offence and counselling. As noted, his evidence about earlier times overseas was to the effect that she was, at times, unable to control her drinking, putting the then young children at risk.
The Applicant also spoke in evidence about medical evidence used in the course of their family law proceeding (G5, F) which demonstrated what he described as ‘significant physical and mental health problems’. He stated that this may pose a problem for the future care of the children. Specifically, he understood that she had been diagnosed with Brown Sequard Syndrome some years ago, which is an incurable degenerative condition affecting gait and speech. The medical evidence was also that she is totally unfit for gainful employment.
I asked F1 whether he had some appreciation of this medical condition, and he responded that when he last saw the Applicant’s wife she was ‘in a ghastly shape’. He understood this to be some form of chronic fatigue condition. F3 demonstrated some limited personal awareness of issues with alcohol and also understood that HQVD’s former wife had experienced some form of spinal issues.
The material in question appears, on its face, to have been lodged for a family law final hearing. The report does describe HQVD’s wife as totally unfit for work, and describes matters including:
(a)diagnosis in around 2016 of Brown Sequard Syndrome ‘culminating in paralysis with severe numbness and weakness in all 4 limbs’;
(b)a cervical spine condition leading to laminectomy in 2016;
(c)confirmation by Austin Neurology Clinic of weakness, clumsiness and difficulty with balance and coordination consistent with cervical spine disease;
(d)hashimoto’s disease;
(e)depression and anxiety; and
(f)recurrent falls in 2020 secondary to the diagnosed syndrome.
A patient health summary is attached to this report and it includes prescription (up to late 2020) of various medications for pain, treating nerve conditions, and depression.
While conceding there has been no contact with the children since mid-2018, the revocation submissions contend that is it undoubtedly in the children’s best interests that the Applicant remain in Australia to be able to learn their views about a future role in their lives. This consideration is said to warrant substantial weight in favour of revocation. In his earlier written submission (G5, D) HQVD states that deportation will have a detrimental effect on both he and his family, and his children will never see him again.
In the Updated ASFIC, the Applicant presents further arguments based in the Family Law Act 1975 (Cth) (FL Act) and his relationship with the children. He states that the parenting arrangements went unchallenged in the family law proceeding because he was incarcerated at the time. HQVD states further that the best interests of the child test in the FL Act involves the benefits of having a meaningful relationship, and protecting children from harm. He contends that safeguards could be implemented if necessary to prevent harm arising.
HQVD restated with some emphasis in closing submissions the proposition that if returned to the UK, his children will never see him again. He questioned whether his children’s views had been addressed in the family law proceeding, and noted that their views are not before the Tribunal. The Applicant also contended that he held serious concerns for his former wife’s ability to care for the children due to her health conditions. HQVD also submitted the medications his wife had been prescribed to be potentially dangerous particularly in combination. If something were to happen to his former wife, HQVD contended the children would have no one to turn to. He submitted that this consideration weighs heavily in favour of revocation.
It is accepted in the RSFIC that, as a general proposition, it is in the best interests of a child to have the option of contacting both parents, and that HQVD was seen as a positive presence in their lives until the offending. However, additional considerations are [91]:
(a)the Applicant has not had contact with his children for five years;
(b)the children are all aged in the mid-to-high teens, and with no evidence of HQVD being permitted access in the foreseeable future, he is unlikely to play a positive parenting role again;
(c)some impact on the children has been identified in the victim impact statements;
(d)impact or trauma from HQVD’s conduct on the children is a relevant factor;
(e)the children presently have their mother playing the primary parenting role; and
(f)the Applicant can provide financial support to his children from any location.
At the hearing, the Respondent’s representative acknowledged that it would be easier for the children to make contact, should they wish, were HQVD to remain here. In any event, the children would not be precluded once they turn 18 from seeking to make contact. In respect of their mother’s medical condition, the Respondent contended that the Tribunal has only HQVD’s own perspective, and that it should be inferred that the mother’s capacity was a factor in the outcome in the family law process. It was further contended that the prospects of changes being successfully made to the IVO and care arrangements were low. Overall, the Respondent contended that the best interests of the children weigh in favour of revocation.
There was notably limited, if any, focus in the material before me of the implications of the medical condition said to be experienced by HQVD’s former wife. This issue became prominent at a later point in the evidence, and became more fully articulated in closing submissions. The medical material that there is, is dated, and was apparently produced for use in a different forum. There was limited supporting evidence from other witnesses about this condition and none about the mother’s current situation.
I do not dispute, however, that there has been a diagnosis of what appears to be a potentially serious medical condition. I also accept the evidence before me in general supports the view that the mother has a history of issues with alcohol, but – again – the present situation is not clear.
It is also the case that the views of the children about their father are unknown. While I have noted the evidence as to the lack of direct harm to the children from HQVD’s offending, I accept their lives have been disrupted and their relationship with him ruptured as a direct result of the offending. Legal processes have operated to cement this state of affairs.
I note that it has been held that to the extent a Direction under the Act requires consideration of the best interests of children, the specified factors are not inconsistent with the ‘primary consideration’ provision of the FL Act (see Meyrick v Minister for Home Affairs [2020] FCA 677 at [63]). If, as the court considered, the values and objects of each instrument are consonant, then I do not consider HQVD’s submissions about the FL Act to fundamentally change the equation. What is important, fundamentally, is to give attention to the factors identified in the Direction.
Accordingly, I find that somewhat less weight be given to the parental relationship of HQVD as there is presently no relationship, and no meaningful contact [8.4(4)(a)]. At present there is no likelihood of the Applicant playing a positive parental role in the few years remaining before the youngest child turns 18 [8.4(4)(b)].
I consider that it is relevant to rely on the evidence before me that the mother is currently fulfilling the sole parental role, notwithstanding some unresolved questions about her health and capacity [8.4(4)(e)].
I have very limited evidence about any negative impact of HQVD’s past conduct, or any trauma arising directly from that conduct, as the views of the children are not directly known [8.4(4)(c),(f),(h)]. For this last reason, there is no evidence as to the likely effect of separation, but I consider it reasonable to assume that, if re-established, there are means by which contact could be maintained [8.4(4)(d)].
On balance, I find that this consideration weighs in favour of revocation.
Expectations of the Australian community
This consideration is expressed in normative terms, in that it declares that where a non-citizen has breached the expectation that they obey the law in Australia, the Australian community expects that they not be allowed to remain in Australia [8.5(1)].
Further, the Direction holds that non-revocation may be appropriate simply because of the nature of the character concerns or offences [8.5(2)]. Cancellation is an expectation particularly in respect of the commission of serious crimes against children, which includes crimes of a sexual nature [8.5(2)(c)]. This expectation applies regardless of whether the non-citizen poses a measurable risk of future harm [8.5(3)].
HQVD’s revocation submissions were prepared in the context of an earlier version of the Direction, but address the notion of a deemed expectation (G5, N [43]). It is contended that the consideration be given minimal weight because of the effect of several mitigating factors, essentially being numerous factors considered to weigh in his favour across the different considerations.
At the hearing, the Applicant contended that it was reasonable to conclude that a cross-section of the community had reached the conclusion that it is reasonable that he be returned to the community. This submission broadly reflected the essence of the views expressed by witnesses called by HQVD, including in particular those of the prison chaplains. I drew the Applicant’s attention to the deemed nature of this expectation, and the resulting limitations on the Tribunal in attempting to reach a decision informed by a view about what community expectations might be [8.5(4)]. Equally, HVQD also contended that this consideration should weigh heavily against revocation.
It is contended by the Respondent that the task of the Tribunal is to determine what weight to apply to this consideration (RSFIC [93]-[94]). As non-revocation may be appropriate simply due to the nature of character concerns or offending, and in light of the Principle at [5.2(3)], it is submitted that very significant weight be given against revocation. This position was maintained at the hearing, noting that the expectation arises regardless of whether there is a measurable risk of future harm.
Given my finding about the serious nature of HQVD’s offending, the nature of the character concerns, and in the context of a continuing risk of harm, I find that this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
Of the four other considerations specified in the Direction, substantive submissions were made by parties in respect of only two, being legal consequences of the decision, and extent of impediments if removed.
There is no material before me addressing impact on victims [9.3] as this requires information about the impact of this decision on members of the community, including victims of HQVD’s behaviour and their family members. Equally, I have no material before me about the impact of the decision on Australian business interests [9.4]. Accordingly, I find that these other considerations weigh neutrally.
Legal consequences of the decision
This consideration draws attention initially to several provisions in Division 7 (Detention of unlawful non-citizens) and Division 8 (Removal of unlawful non-citizens) in the Act [9.1(1)]. In short, unlawful non-citizens are subject to removal from Australia as soon as reasonably practicable, and to detention in the meantime.
The Direction goes on to address circumstances in which such a person may have claims to fear harm if removed. Given HQVD’s nationality and circumstances generally, this part of this consideration does not apply.
The Respondent submits (RSFIC [95]) that the legal consequence of a decision is that the Applicant will be liable to removal, and further that it is unlikely he will be permitted to return (due to the effect of the Migration Regulations 1994 (Cth)).
No written submissions were made on the Applicant’s behalf about this consideration. At the hearing, he submitted (when addressing other matters) that he would be subject to indefinite detention were he to pursue further legal challenges. In response, the Respondent’s representative observed that litigation could be pursued from abroad.
I raised with the Applicant the nature of this other consideration, as outlined above. I also note that the concept of indefinite detention has been defined as a significant duration where a particular event is unlikely to occur in the foreseeable future ‘by reason of some circumstance other than the pursuit by the detained person of legal rights …’ (ECE21 v Minister for Home Affairs [2023] FCAFC 52, [11]).
I find that this other consideration weighs neutrally.
Extent of impediments if removed
Consideration must be given to the extent of any impediments faced on removal to a home country in becoming established and maintaining ‘basic living standards (in the context of what is generally available to other citizens of that country)’ while taking account of age and health, any substantial language or cultural barriers, and any social, medical and/or economic supports available [9.2(1)].
I note HQVD’s prior written statement (G5, D) in which he states that he would be thrown into an unfamiliar environment and be living day-to-day, should he be returned to the UK. He describes his job prospects as considerably lower than in Australia, and identifies issues with lack of support network, loss of relationship with his psychologist and the return of anxiety and depression.
In his evidence, HQVD agreed that he had thought about re-establishing himself in the UK. He stated that he would have to rely on a charitable organisation ‘Prisoners Abroad’. He understood temporary accommodation could be made available in London, but that his mother lives three hours north of there. Longer term, he anticipated being on a wait list for a council flat.
The Applicant stated that he would not be able to call on help from his brother, who is paying for their mother’s care, and – as noted – HQVD has no savings or assets following the family law settlement. HQVD also stated that he understood he would be subject to registration as a sex offender, but for a lesser period than in Australia.
It is contended in HQVD’s revocation submission (G5, N [45]) that based upon the matters identified in his statement, this consideration weighs in favour of revocation. In a statement dated in 2020 (G5, D, 81), HQVD states that his mother is ‘stranded’ in the UK due to COVID-19 and has property in another Australian city, being the same location his brother ordinarily resides. A statutory declaration of the brother (G5, N13) indicates that their mother has been very unwell and has recently received end-of-life medication and resides in a nursing home. At the hearing, HQVD indicated his brother was in the UK caring for their mother and so was unable to appear.
At the hearing, the Applicant stressed: the absence of his support network; the real prospect of homelessness; loss of hope that he might be able to care for his children; and, consequentially, the greater likelihood (than if remaining in Australia) of the return of anxiety and depression as well as the potential for suicidal ideation. He contended that this other consideration weighs heavily in favour of revocation.
The Respondent submits that impediments faced by HQVD would be modest (RSFIC, [96]). At the hearing, the following factors about return to the UK were identified:
(a)the Applicant has a good work history, and all employment options available in Australia exist also in the UK;
(b)while his networks may be less well developed there, HQVD has at least one close friend, and otherwise the skill set and experience from his career to adapt; and
(c)he would be entitled to the same forms of social, medical or economic supports as a UK citizen.
It was accepted by the Respondent there may be deficits arising from transitioning to any new mental health support services. It was contended that this other consideration has limited weight in favour of revocation.
I accept that due to his financial situation, HQVD will face some initially challenging circumstances if returned to the UK. I also accept that transition issues will include physical separation from lay and professional supports whose important role has been noted above. This does not mean, however, complete severance of such relationships.
HQVD’s capacity to manage is reflective of the fact that he grew up and was educated in the UK which, I consider, means that these evident transition issues would be manageable. I also consider that his longer term prospects would at the least be equivalent to those of a fellow citizen able to access the kinds of public services generally available. I consider there is also the prospect, given his education and work background, that HQVD is in fact reasonably well placed to exceed such basic standards. That said, I have already acknowledged that there are likely to be some limitations on his earning potential given his criminal history.
Overall, I find that this consideration weighs slightly in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that protection of the Australian community and expectations of the Australian community weigh heavily against revocation, and that the family violence consideration weighs slightly against revocation. I have found that the consideration of best interests of minor children affected by the decision weighs in favour of revocation, and the strength, nature and duration of ties weighs moderately in favour of revocation.
I have found that three of the other considerations weigh neutrally, and the other consideration, extent of impediments if removed, weighs slightly in favour of revocation.
Guidance in the Direction as to how to take the considerations into account holds that appropriate weight be given to evidence from independent and authoritative sources [7(1)], that primary considerations generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations [7(2), (3)].
The Principles in the Direction make clear that the community expectation is that a visa should be cancelled if conduct raises serous character concerns, and that this applies whether or not a non-citizen poses a measurable risk of harm. Further, they express the low tolerance held for any criminal conduct where non-citizens have participated in, or contributed to, the Australian community for only a short period of time.
Moreover, the Principles direct attention to the possibility that in some circumstances, the nature of conduct and the harm that would be caused were it to be repeated may be so serious that even strong countervailing considerations may not justify the revocation of mandatory cancellation. The inherent nature of some crimes, including sexual crimes, may be so serious as to outweigh countervailing considerations even in the absence of a measurable risk of harm. Given the grave nature of HQVD’s offending, I consider that this factor in this principle is particularly relevant.
I consider that the nature of HQVD’s offending is of such a character that the generally greater weight of primary considerations should prevail. While I have afforded some weight in favour of revocation to two primary considerations, I do not consider these countervailing considerations should outweigh the greater weight afforded against revocation by the other primary considerations. These primary considerations are also not outweighed by the slight weight afforded to one of the other considerations.
Accordingly, I consider the correct or preferable decision is that there is not another reason that the mandatory cancellation of HQVD’s visa should be revoked.
DECISION
For the reasons given above the Tribunal decides that the decision under review is affirmed.
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
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AssociateDated: 21 August 2023
Date(s) of hearing: 8, 9, 10 August 2023 Date final submissions received: 3 August 2023 Applicant: Self-represented Advocate for the Respondent: Mr David Brown Solicitors for the Respondent: Australian Government Solicitor
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