HRVD and Minister for Home Affairs (Migration)

[2019] AATA 637

HRVD and Minister for Home Affairs (Migration) [2019] AATA 637 (3 April 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                   )

)No: 2019/0164

GENERAL DIVISION  )

Re: HRVD
Applicant

And: Minister for Home Affairs
Respondent

CORRIGENDUM

TRIBUNAL:               R Cameron, Senior Member

DATE OF CORRIGENDUM:   15 April 2019

PLACE:                     Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. Paragraph 8 of the decision is substituted as follows:

Under section 501 (6) of the Act several criteria are specified to determine if a person does not pass the character test. In this application, the grounds relied upon by the Respondent to conclude that the Applicant does not pass the character test are those identified in section 501 (6) (e).

2. Paragraph 13 is deleted.

3. In the second line of paragraph 50, Direction 75 is changed to Direction 79.

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

Division:GENERAL DIVISION

File Number(s):      2019/0164

Re:HRVD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER

Date:3 April 2019

Place:Melbourne

The Tribunal sets aside the reviewable decision of 17 December 2018 and remits it for reconsideration with the direction that the discretion in section 501 (1) be exercised in favour of the Applicant.

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

R CAMERON SENIOR MEMBER

Catchwords

MIGRATION – refusal of visa application – failed character test – risk of reoffending – expectations of the Australian community – best interests of children in Australia – impact on immediate family -  decision set aside and remitted

Legislation

Migration Act 1958 (Cth)

Sex Offender Registration Act 2004 (Vic)

Cases

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

3 April 2019

INTRODUCTION.

1. On 17 December 2018 the Applicant was refused a Partner (Residence) (Class BS) Visa under section 501 (1) of the Migration Act 1958 (“the Act”) (“the Reviewable decision”). He seeks a review of that decision.

   SOME RELEVANT BACKGROUND FACTS.

2. The Applicant is a citizen of India. He was born in 1989. He arrived in Australia in 2008 on a Student Visa.

3. On or about February 2009 the Applicant met his now wife. They were married in August 2010.

4. On 13 May 2011 the Applicant lodged an application for a Partner Visa on the basis of his relationship with his wife.

5. The Applicant was granted a Partner (Temporary) (Class UK) Visa on 7 June 2013. On 19 December 2014, that ceased having any force and effect upon the refusal of the application for a Partner (Residence) (Class BS) Visa. The refusal to grant this Partner Visa was reviewed by the Migration and Refugee Division of this Tribunal and remitted to the Department on 8 December 2015.

6. On 11 October 2019 the Applicant was issued with a Notice of Intention to Consider Refusal of the visa. Following representations made by the Applicant, the Reviewable Decision was made by the Delegate of the Respondent Minister on 17 December 2018.

   A SYNOPSIS OF THE LEGISLATION APPLICABLE TO THIS APPLICATION.

7. As noted earlier a Delegate of the Respondent refused to grant a visa to the Applicant under the provisions of section 501 (1) of the Act. This section confers upon the Respondent Minister a discretion to refuse to grant a visa to a person if the person does not pass the character test.

8. Under section 501 (6) of the Act several criteria are specified to determine if a person does not pass the character test. In this application, the grounds relied upon by the Respondent to conclude that the Applicant does not pass the character test are those identified in section 501 (6) (d), which provides that:

   “For the purposes of this section, a person does not pass the character test if:

   in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

   (i)engage in criminal conduct in Australia; or

   (ii)harass, molest, intimidate or stalk another person in Australia;”

9. If the decision-maker concludes that the Applicant does not pass the character test, they are then obliged to apply what is known as “Direction No 79” (“Direction 79”) published by the Minister for Immigration, Citizenship and Multicultural Affairs. Direction 79 is published under section 499 of the Act and binds decision-makers who exercise certain discretions under the Act, including that conferred by section 501 (1).

10. The Preamble to Direction 79 contains “General Guidance” for decision-makers and the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse a non-citizen’s visa application under section 501.

11. Part B of Direction 79 identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. Part B is divided into “Primary considerations - visa applicants” (Clause 11) and “Other considerations - visa applicants” (Clause 12).

12. Clause 8 (1) prescribes that decision-makers must take into account primary and other considerations relevant to the individual case. Clause 8 (4) specifies that primary considerations should generally be given greater weight than the other considerations. However, Clause 8 (3) states that both primary and the other considerations may weigh in favour of, or against, refusal, of the visa. Clause 8 (2) specifies that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

13. Direction 79 also contains “ANNEX A - Application of the character test”, which provides guidance for the decision-maker in determining whether a visa applicant passes the character test. Specifically, Clause 6 of Annex A “Risk in regards to future conduct (section 501 (6) (d)” and sub-clauses 6.1 (Risk of engaging in criminal conduct in Australia (section 501 (6) (d) (i)), and 6.2 (Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501 (6) (d) (ii)) provides guidance to the decision-maker in assessing whether a visa applicant does not pass the character test.

14. The circumstances of each case must be assessed taking into account the relevant considerations specified in Direction 79 and evaluated by the decision maker. The decision-maker will assess the weight to be given to each consideration in the light of the facts established in the case; and having given each consideration the appropriate weight, assess them all together to reach a conclusion, or more accurately a decision, as required by Direction 79.

15. The exact terms of Direction 79 are published and it is not necessary for them to be reproduced in these reasons.

    THE CHARACTER TEST.

16. The Applicant concedes that he does not pass the character test.[1]

    [1] This concession is made at paragraph 3 of the Applicant's Statement of Issues, Facts and Contentions. It was also repeated by counsel for the Applicant in the course of his opening before the Tribunal.

    THE ISSUE FOR DETERMINATION BY THE TRIBUNAL.

17. The issue for determination by the Tribunal is whether it should exercise the discretion under section 501 (1) of the Act to refuse the Applicant’s Partner Visa application.

    PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT.

18. The first consideration in Part B is the primary consideration under Clause 11 (1) (a), “Protection of the Australian community from criminal or other serious conduct”. Clause 11.1. (1) specifies that there is a low tolerance in the Australian community for visa applicants who have previously engaged in criminal or other serious conduct. Clause 11.1 (1) requires the decision-maker to address two constituent parts found in sub-clauses (1) (a) and (b). The first part is “The nature and seriousness of the non-citizen’s conduct to date”. The second part is “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.

19. In addressing this consideration it is appropriate at the outset to consider the Applicant’s criminal record, which was briefly mentioned earlier. The first three convictions imposed on the Applicant arose during the course of his employment at a fast food outlet known as “KFC”. He had worked initially for a KFC outlet in the city and then transferred to a second outlet in approximately early 2010. He commenced his duties there as a cook.[2] Apparently, he was a diligent employee as a cook and was then invited to become what is known as a “Shift Manager” approximately three or four months later. This then led to his appointment as an Assistant Manager. In his evidence he was unable to precisely recall when he was appointed as an Assistant Manager but to the best of his recollection it was approximately in late 2010. There were pay records and evidence before the Tribunal which confirm this time.

    [2] He had graduated from a training organisation with a Certificate III in Hospitality (Commercial Cookery) in November 2009.

20. A feature of the operation of KFC at the second outlet was that it employed a number of school age persons as casual employees. Several of these school-age employees were girls. Two of the victims of the Applicant’s offending were already working at the outlet concerned when the Applicant commenced employment there. The third victim who was a sister of one of the other victims commenced working there after his arrival.

21. The evidence before the Tribunal, both from the Applicant and the documentary evidence which included witness statements and transcripts of video-recorded interviews, indicated that with at least one of the victims, he developed a fairly friendly relationship that ultimately became intimate.

22. There is a conflict in the evidence between the Applicant and several of the other staff members (who made statements to the police) as to the atmosphere, or perhaps more accurately, the nature and extent of interactions, in the KFC outlet between the Applicant and the other staff during shifts that they worked together. The Applicant said that the atmosphere was extremely friendly, talkative and frequently people “joked around”. Statements of several witnesses given to the police were uncomplimentary of the Applicant and noted that females felt uncomfortable working with him.[3] Surprisingly, this conflict was not explored to any great degree either in evidence-in-chief or in cross-examination. In cross-examination of the Applicant, his version was not challenged and none of the several contradictory statements made by staff members to the police put to him.

    [3] Other terms were also used in some of the police statements but need not be repeated in these reasons. They were of similar effect. They revealed a different view of staff interactions and views of the Applicant.

23. However, it did emerge from the material that if the Applicant had displayed a tendency to make unwanted advances to young casual female employees, the management did not take steps to counsel the Applicant against such behaviour. It also appears that none of the staff members concerned saw fit to raise the matter with senior management of the store who were in positions above the Applicant. It must be stressed that this observation is not made in any way to condone what the Applicant did which the Tribunal finds to be extremely offensive behaviour.

24. It must be stressed that the convictions against the Applicant at the Broadmeadows Magistrates’ Court on 24 January 2012 arose from the course of the Applicant’s employment as an Assistant Manager at KFC. A key element to these convictions was the fact that the offending occurred whilst these victims were employees under his supervision. The victim of the first conviction was a 15-year-old girl (who was also an employee under the Applicant’s supervision).

25. The Applicant was initially charged with 11 counts. For reasons that were not explained to the Tribunal 8 of those counts were withdrawn by the police. The Applicant pleaded guilty to the remaining counts. Notwithstanding the other evidence before the Tribunal it proceeds to only take into account the offending of the Applicant for which he was convicted.

26. The first conviction against the Applicant[4] was for indecent assault and arose when he directed the victim, who as noted earlier was a 15-year-old girl, to enter a disabled toilet cubicle ostensibly for the purposes of demonstrating to her what was required to clean it. Whilst in the cubicle the Applicant kissed the victim on both sides of her neck.[5] The victim told the Applicant to stop and he did. The Tribunal notes that the police summary, a transcript of a video-recorded interview with the victim and the victim’s sworn witness statement made to the police were in evidence before it. They give an account of the Applicant’s behaviour in the disabled toilet cubicle that is different in several respects to that relied upon by the Respondent, and for that matter the Applicant. The acts for which that conviction was recorded against him were kissing the victim on both sides of her neck.

    [4] Charge number 3 of the Orders of the Broadmeadows Magistrates’ Court of 24 January 2012; it forms part of exhibit “A-13”.

    [5] The police summary of the offending is to be found at page 307 of the G documents.

27. The victim of the second conviction for an unlawful assault[6] was a 16-year-old girl who was also a casual employee at the KFC outlet. The Applicant’s offending occurred when the victim was present in a rear storeroom of the premises trying to retrieve some stock bags from a top shelf which were too high for her to easily reach. Whilst doing so the Applicant entered the store room and rendered assistance to her by retrieving the bags from the top shelf. After having retrieved the bags for the victim the Applicant then unfolded a rubbish bag and placed it over the victim’s head pulling it over her body all the way down to her knees. Whilst the victim was covered with the rubbish bag, the accused hugged the victim from behind in a “bear hug”. After doing so, the Applicant eventually released the victim from the bear hug and removed the bag from her body over her head.

    [6] Charge number 9 of the Orders of the Broadmeadows Magistrates’ Court of 24 January 2012; it forms part of exhibit “A-13”.

28. The victim of the third conviction was a 17-year-old schoolgirl who was also employed at the KFC outlet as a casual employee. The evidence was that they became extremely friendly over the time between 1 October 2010 and 16 March 2011. The Applicant from time to time drove the victim home at the conclusion of their shifts. On several of these occasions he kissed the victim on her neck and lips. He did on several occasions also touch her vagina and then put his fingers inside her vagina. The evidence reveals that his actions were consensual.[7] However, the victim was 17-year-old during this period and under the Applicant’s supervision and authority in the workplace.

    [7] There was evidence before the Tribunal both from the Applicant and in the documentary material such as witness statements and telephone records, that the Applicant and the victim were reasonably friendly towards one another during that time. For instance, in the material there were telephone records in evidence which reveal that there were 37 phone calls made between them and 453 text messages. In one of the statements the victim stated that she and the Applicant "were very good friends". It must be reiterated that this is not mentioned in any way to condone what the Applicant did but to provide more contextual detail to the offending concerned.

29. After the incident with the victim in the disabled toilet cubicle the police were contacted. The victim’s father was a police officer. He was informed of the incident concerned and contacted local police who were quickly involved. After being informed of the incident in the disabled toilet cubicle, most of the casual staff refused to work with the Applicant, stopped work, walked out of the premises and remained in the car park adjacent to the KFC outlet until the police and the victim’s parents arrived.

30. The store manager also attended after the walkout and directed the Applicant to make a statement in writing. The Applicant subsequently made a handwritten statement which is in evidence before the Tribunal. That handwritten statement contains a version of the Applicant’s conduct on the day in question which differs from that contained in the police summary and the victim’s witness statements that were in evidence before the Tribunal. The Applicant stated in his evidence that the contents of the handwritten statement were different because he was ashamed and embarrassed of what he had done and did not want to admit it.

31. The next day the police attended at the Applicant’s home that he shared with his wife and executed a search warrant. His wife was present at the house when the police arrived. It was a most distressing experience for her, about which more will be said later in these reasons. They arrested the Applicant and seized items of clothing. He was conveyed to the Faulkner police station and a formal tape-recorded record of interview conducted. In that record of interview he denied the specific allegations that were put to him including those to which he subsequently pleaded guilty at the Broadmeadows Magistrates’ Court.

32. The Tribunal should observe that the Applicant’s conduct at the time that his offending was exposed, namely making a false statement to his employer and making false denials to the police in the tape-recorded record of interview, does not reflect well at all upon him, and compounds the gravity of his offending against these school aged girls.

33. The Applicant gave several explanations for his offending. These explanations were on several occasions that he was “young and dumb”. He also stated that at the time he was emotionally very immature and did not have a clear understanding of what was not appropriate behaviour. He made reference to not having had any appropriate sexual education in India which lead to a distorted understanding on how females should be treated. He gave evidence, which was corroborated by a clinical psychologist, Ms Lisa Jackson, who was called to give evidence on his behalf, that he was also experiencing difficulties with his marriage which to some extent, as he now recognises, resulted in inappropriate attachments or dealings with younger females. It was also caused by a lack of understanding of professional boundaries in the workplace. He also stated there was hardly any formal training about these questions when he was promoted to the position of an Assistant Manager.[8]

    [8] Ms Jackson in her evidence largely corroborated the Applicant's evidence concerning these reasons for his offending.

34. In his evidence the Applicant also stated that when he was a co-employee and not in a position of supervision or responsibility for younger female employees there was a casual interaction between them. When he was then promoted to the position of Assistant Manager he was not aware, or informed by his employers, of his responsibility to avoid dealings with younger female staff members and that the consequences (in a criminal law sense) had changed. The Tribunal accepts this evidence because it is apparent from the material that he did have interactions with at least one of these girls whilst he was a co-employee rather than in a supervisory position, and it is more likely than not that this was apparent to his employers. He probably, and erroneously, believed that with his promotion this interaction could continue. As a matter of law it could not.

1. The Applicant, in his oral evidence in the witness box, together with several written statements that he made, stressed that he accepted full responsibility for his offending with the girls concerned. Ms Jackson, in both written reports and her evidence from the witness box, gave evidence to the effect that she considered that the Applicant was genuine in these expressions of both responsibility and remorse for his actions. The Tribunal accepts her evidence. More will be said about the content of Ms Jackson’s evidence later in these reasons.

2. The further offending on the part of the Applicant arises from convictions for two offences on 7 June 2017. The Applicant had been placed on the Sex Offenders’ Register for a period of 15 years. When a person is placed on the Sex Offenders’ Register certain reporting obligations are cast upon them.

3. The first conviction was because on 8 August 2016 the Applicant was issued with a new Indian passport which he failed to notify to his reporting officer within seven days of its issue. Failure to do so was a breach of the reporting obligations under section 46 (1) of the Sex Offender Registration Act 2004.

4. The Applicant’s explanation for the failure to notify his reporting officer of the new passport was that he did not realise that the passport he received had a new number. He believed that the passport, although new, was issued under the same number. It was the first occasion that he had ever renewed a passport. He thought it was the same as the renewal of a driver’s license where the license is renewed but using the same registration number. A point the Applicant made with some force and effect, which does corroborate his explanation, is that when he received the new passport he simply put it in the cupboard. He did not realise it was different. He just picked the passport up from his cupboard and then took it to the police station when he went for his yearly interview. He produced the passport and it was then that he was informed by the police officer concerned in the interview room that he had breached the reporting obligation.

5. Having considered the explanation offered by the Applicant in the witness box on oath, together with his witness statements, the Tribunal accepts his explanation. Of course, by accepting his explanation it does not excuse his behaviour but it does impact on the seriousness of such offending. He should have been more diligent in checking the passport when he received it, and if in doubt should have notified the responsible authority pursuant to his reporting obligations.

6. The second reporting offence for which the Applicant was found guilty concerned the failure to notify his reporting officer of a change of job. He commenced employment with a new employer on 1 December 2016 but failed to notify his reporting officer within 7 days as required. Similar to the situation with the passport, the Applicant informed his reporting officer during the course of an annual review when he personally attended at the police station. It was contended by his counsel, and there is some force to this contention, that the delay in making the report was less than one month. Indeed it was approximately 26 days.[9]

   [9] According to the "Charge-Sheet" on page 371 of the G documents the report was made on 3 January 2017. Given that he commenced the new job on 1 December 2016 it was 26 days overdue.

7. The Applicant, in his witness statement and from the witness box, explained that his failure to notify his reporting officer of his change of employment was an oversight. He stated that he was struggling with work and family pressures and in particular working exceedingly long hours. He stated that at that time he usually started at approximately 3.00 or 4.00 AM in the morning driving a crane truck delivering Colour Bond roofing materials. He also stated that he was not sleeping particularly well at that time. Additionally, he was suffering pressures from his mother in India who was facing difficulty with her husband’s alcoholism. He did emphasise the fact that he had been supporting his mother as well is his wife and infant son at that time. Collectively, he stated, it really led to him being distracted. He just forgot about his obligations. It was emphasised by both the Applicant in his witness statements and from the witness box, as well as by his counsel, that this employment did not involve any contact with children or young people. He readily acknowledged the seriousness of failing to adhere to his reporting requirements including notifying his reporting officer of the change of employment. He did express an understanding as to the reason why reporting obligations are imposed, not to mention their importance. Overall, these explanations were also referred to in the two reports of Ms Jackson that were in evidence before the Tribunal.

8. Assessing the evidence of the Applicant, together with the evidence of Ms Jackson, the Tribunal accepts the explanation offered by the Applicant. Once again accepting the explanation does not excuse the breach of the law on the part of the Applicant in failing to report his change of employment to his reporting officer. It must be repeated that the Sex Offender Registration Act is in place for a very good reason. It is to protect the community from repeat offending by convicted sex offenders. Strict reporting obligations are imposed so that the police and supervising authorities have up-to-date and accurate information of several aspects of a convicted sex offender’s life. This regime has several objectives. They include ensuring the authorities, including the police, have the capacity to keep convicted sex offenders under scrutiny. Particularly, if they are working in an environment where they may be exposed to potential victims or vulnerable people such as children. It is also a useful adjunct to investigators in the event that a sex offence occurs. In the course of carrying out an investigation the conduct of offenders who may have had contact with the victim, be living near the victim, or have some other likely connection can be probed. Finally, it also serves as a constant reminder to a registered sex offender of what they have done in the past and that they are to some considerable degree under the microscope in the future. This has a significant role to play in terms of deterrence.

9. The other matter concerning the Applicant’s conduct that has also been raised by the Respondent is that he completed incoming passenger cards when returning to Australia from trips to India in 2013 and 2015 in which he failed to disclose his previous convictions. When asked a question by the Tribunal he said he knew what a conviction was. The cards are clearly marked with an endorsement “You must answer every question-if unsure, yes X”.

10. The Applicant, in his explanation for this conduct, stated that he had a great deal on his mind and did not pay attention to the card in the way that he should have. He also stated he didn’t read the card carefully. He stated he thought that it was for ongoing court cases at the time. He stated that he did report his departure when he was leaving the country to the responsible authority. He had nothing to hide.

11. The Applicant’s counsel in his submissions contended that the Tribunal should accept his explanation that these errors were unintentional. It is asserted this conclusion should be drawn because of his disclosure of the offences and the sentence imposed prior to travelling overseas in 2013; his personal and family circumstances during the trips in 2013 and 2015; and finally that in February 2018 he correctly completed his incoming passenger card. The Tribunal cannot accept this contention. The Applicant knew fully what he was doing. He is not a stupid man. In response to a question from the Tribunal he readily conceded that he knew what a conviction was. He presented in evidence as someone who is alive to protecting his own interests. It does not reflect well upon him.

12. Having considered the Applicant’s offending and his explanation offered in the course of his evidence before the Tribunal, it is necessary to turn to the considerations in Clause 11.1.1 of Direction 79 that are applicable to the facts of this Application.

13. Clause 11.1.1 (a) provides that sexual crimes are viewed seriously. It is not difficult to conclude that these crimes committed against young girls in 2011 by the Applicant whilst he was an Assistant Manager at KFC were very serious. Indeed, the Applicant did not at any time in the course of his evidence seek to cavil with such a contention. His counsel in the Statement of Facts, Issues and Contentions, filed and served on his behalf, readily conceded that such offending was very serious.[10] It was a concession properly and reasonably made.

    [10] The concession is made at paragraph 47 of the Applicant's Statement of Issues, Facts and Contentions.

14. The Applicant’s Statement of Facts, Issues and Contentions reiterated the explanations offered by the Applicant in the course of his evidence. They also relied upon the fact that with respect to the eldest victim they were consensual acts but made unlawful because the Applicant had “authority” over her. It was further contended that in respect of the unlawful assault victim whilst the conduct was distressing there was no physical harm to her. It was contended that the indecent assault against the youngest victim was a one-off incident over a brief time span which did not cause any physical harm. Whilst the Tribunal notes these contentions, it cannot agree that they derogate from the seriousness of the offending. Young girls are vulnerable and they are particularly vulnerable to exploitation in the workplace. This can be for any number of reasons, such as the fear of losing one’s job or simply being overborne. Their relative youth and immaturity alone makes them less capable at times of resisting unwarranted advances. There is always the risk that once a young girl is exploited in this way that it will lead to more frequent and severe violations. Young girls should not be subjected to this pressure in any shape or form. There are many more reasons but they need not be articulated. The law is in place for a good reason and it must be obeyed.

15. The Respondent also referred to the provisions of Clause 11.1.1 (b) which provides that crimes of a violent nature against women are viewed very seriously. The incident where the plastic rubbish bag was pulled over the head and body of the victim was violent in a limited way. It was surely completely unacceptable behaviour and clearly was an assault for which the Applicant pleaded guilty. It is very serious behaviour. She was entitled to go about her business without being the victim of such offending.

16. The Respondent also directed the Tribunal to the provisions of Clause 11.1.1 (c) of Direction 75 to argue, and the Tribunal agrees with the contention, that the victims in this case were vulnerable members of the community. (Although, specific reference to the word “minors” present in Ministerial Direction 65, which Direction 79 has superseded, has been deleted.) It is the reason that such laws have been enacted by the legislature. Such offending is readily serious.

17. There is some debate between the parties about the sentence imposed by the courts and how it applies to this consideration contained in Clause 11.1.1 of Direction 79. The Applicant was placed on a Community Corrections Order for 18 months and placed on the Sex Offenders’ Register for 15 years.

18. The matter was dealt with in the Magistrates’ Court and a non-custodial sentence was imposed. The duration of the Community Corrections Order at 18 months was comparatively short. It must reflect the view of the sentencing Magistrate It is indicative of lower level offending. The 15-year term on the Sex Offenders’ Register reflects the balance that the sentencing Magistrate obviously felt was appropriate to reflect community attitudes, and provide protection not to mention deterrence from, future offending. It should be noted, and the Tribunal agrees, that the Delegate in the course of the reasons provided for the Reviewable Decision found that the penalty imposed indicates that the offence was towards the lower range of such offending. However, the Tribunal wishes to reiterate that this does not in any way detract from the finding that this offending was serious.

19. In terms of other considerations in Clause 11.1.1 of Direction 79, there has not been any trend of increasing seriousness within the meaning of Clause 11.1.1 (g). Nor has there been any frequency of offending. Even though there was the failure to adhere to the reporting obligations, the Tribunal does not conclude that the Applicant’s conduct falls within the ambit of this Clause.

20. The failure to properly complete the incoming passenger card so as to disclose offending on the occasions outlined above does violate the provision of Clause 11.1.1 (i). It is a factor that weighs against the Applicant. And it does add to the totality of the finding that the Applicant’s offending and conduct overall was serious.

21. When the Tribunal considers all the matters referred to under this primary consideration it must conclude, as indeed it was conceded by the Applicant, that in its totality the Applicant’s offending was serious. It must therefore, weigh against revocation of the Reviewable Decision, even if the finding was that such offending, including the sexual offences committed, were, as concluded by the Delegate, to be towards the lower end of the range of such offending.

    THE RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT.

22. The language used in Clause 11.1.2 of Direction 79 is referred to in its entirety for its full force and effect. However, there are several aspects to the Clause that warrant consideration. Clause 11.1.2 (1) provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Clause 11.1.2 (3) provides that decision-makers should have regard to, cumulatively, the factors identified including, amongst other things, the likelihood of the non-citizen engaging in further criminal or other serious conduct taking into account: information and evidence of independent and authoritative sources on the likelihood of the non-citizen reoffending; and evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence; and the risk of harm in the context of the purpose of the intended stay; and the type of visa being applied for.

23. The Tribunal observes that in Clause 11.1.2 (1) of Direction 79 it refers to the decision-maker considering whether the non-citizen represents “an unacceptable risk”. Clause 11.1.2 (3) refers to “the risk to the Australian community”. There is some tension between these two terms. An unacceptable risk carries with it a higher threshold compared to a “simple” risk.

24. Clause 11.1.2 (1) also provides that decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia

25. The Applicant contends that there is a low risk of him reoffending, he relies upon several matters. Including what he says is his own remorse and appreciation of his offending, both in its gravity and effect. He also points to the expert evidence produced to the Tribunal by Ms Jackson. Additional evidence relied upon by the Applicant included the evidence of his wife, two directors of his current employer (who gave evidence of his good character including benefits he derived from his employment and the opportunities it affords to support both him and his extended family), together with the several witnesses who made witness statements and gave oral evidence, verifying that they do not believe that he is any risk of reoffending.

26. On the other hand, the Respondent contends that there is a real risk of the Applicant reoffending, and if he were to do so the Australian community would be exposed to serious risk of harm of a physical and psychological nature. Developing this argument, the Respondent contends that the Applicant’s offending in the past has a logical bearing on what might happen in the future. It is even contended by the Respondent that the Applicant’s history of offending is indicative of a propensity to disregard Australia’s laws, and underscores a real risk that he would reoffend. Such reoffending would have as its natural consequences serious harm to members of the Australian community. Therefore, the Respondent says, this factor weighs heavily in favour of affirming the Reviewable decision.

27. The Tribunal has had the opportunity to observe the Applicant in the witness box. It does conclude that the experiences that he has had, such as:

    (a)being charged;

    (b)losing his job as an Assistant Manager in a significant organisation (where he was on a good career path);

    (c)being prosecuted on two occasions;

    (d)the stress that it has placed on his relationship with both his wife and his infant son;

    (e)completing the requirements of his Community Corrections Order;

    (f)a period in immigration detention; and

    (g)being placed on the Sex Offenders’ Register with its attendant reporting obligations;

    have had a significant effect on him which is likely in a collective sense to be a very strong deterrent to future offending. He does appear to have learned his lesson.

28. There is also the evidence of Ms Jackson, upon which the Tribunal should comment. She has filed two reports which are in evidence before the Tribunal.[11] They are referred to in their entirety for their full force and effect. She also gave oral evidence. She was a most impressive witness. At all times she saw her role was to assist the Tribunal. She did just that. She has been a practicing clinical phycologist since 1991. In that time she has treated and consulted with hundreds of sex offenders. She is highly qualified and experienced in the treatment and observation of sex offenders.

    [11] The first report dated 5 November 2018 is at page 77 of the G documents. The second report which formed part of exhibit “A-2” is dated 13 March 2019.

29. In her evidence Ms Jackson stated that the Applicant acknowledged the seriousness of his offending and subsequent failure to comply with his reporting conditions and did not at any time attempt to minimise such seriousness. Critically, she pointed out that the Applicant was able to demonstrate to her satisfaction “attitudinal changes” towards his offending.

30. She conducted two tests upon the Applicant. The first test is known as “IORNS”.[12] She described this test as a predictive measure of recidivism and the identification of risk factors that increase this risk. The “inventory” looks at static factors (past behaviour) and dynamic factors (changeable variables) along with protective strengths that can assist in mitigating risks. The results of this test were that the Applicant exhibited a reduced number of characteristics and attitudes that identify his risk of reoffending compared to other matched populations in the community. His protective strengths score shows that he has a greater than average strengths required to mitigate any offending risks.

    [12] "Inventory of Offender Risk, Needs and Strengths".

31. The second test is known as “Static-99R”. This test is a 10-item actuarial scale that assesses recidivism risks of adult male sexual offenders who have committed sexually motivated offences against an identifiable victim. The scale scores the following risk factors: age of offending, relationships with intimate partners, a history of violence and a prior history of sex offending, convictions for noncontact sex offending and type of victim (unrelated, stranger or male). The application of this test showed the Applicant was a “Low-Moderate” risk of sexual recidivism and statistically indicated that he had an 88.7% chance of not reoffending in five years.

1. Interestingly, the psychologists who undertook treatment of the Applicant at the Broadmeadows Community Correctional service and prepared a report dated 26 July 2013 also administered the Static-99 test to the Applicant.[13] That report is referred to in its entirety. The authors of that report reached the same conclusion by applying the Static-99 test to the Applicant, that he was a “Moderate-Low risk”.

   [13] That report is at page 203 of the G documents.

2. Both the reports of Ms Jackson and the Broadmeadows Community Correctional Service considered the statistical analysis in an actuarial sense, of whether a male sexual offender is likely to reoffend. It is 12% over five years. (One should stop to observe of course five years have passed since the Applicant’s offending). 14% over 10 years and 19% over 15 years. Therefore, applying this statistical analysis the corresponding likelihood of (or perhaps one should use the term “probability”) the Applicant reoffending is even lower.

3. Another feature of Ms Jackson’s evidence which is highly persuasive was Ms Jackson’s professional opinion having had the opportunity to consult with and observe the Applicant. When asked to express an opinion from her assessment of the Applicant, as to whether he would reoffend, Ms Jackson’s response was that the risk of him reoffending was very low to almost zero. She stated: “looking at the range of sex offenders that I have dealt with over the years he is right down to the lower end of it. My view is he won’t reoffend. He has taken everything on board and made changes to his behaviour.” As noted earlier, Ms Jackson was an impressive witness and the Tribunal accepts her professional opinion.

4. There were also several other character witnesses who gave evidence, their statements are referred to and repeated. They all believed that the Applicant is not a risk to the Australian community.

5. Amongst the witnesses who gave evidence were the Applicant’s wife and her sister. They both stated that they had known the Applicant for the same amount of time as they were both present when the Applicant and his wife first met. They gave evidence, which the Tribunal found credible, that they do not believe he is a threat or a risk to anyone of reoffending.

6. More will be said about the Applicant’s wife’s evidence later in these reasons. However, her evidence was compelling about the relationship that he has with her and his infant son. She articulated how the Applicant has provided support both financially and emotionally at a very dedicated level. She opined that his commitment to her and their son, who it will be recalled was born after the Applicant’s offending and subsequent conviction for the sex offences, was another powerful incentive for him not to reoffend. The Tribunal finds this evidence highly persuasive.

7. Two other witnesses who gave evidence who should be referred to were the Managing Director and the Finance and Administration Manager of the Applicant’s employer. They gave evidence of his attributes and that he is a respected and valued employee, whom they see as posing no risk. Both gave evidence of his hard-working and diligent capacities together with the important contribution he makes to their business. The business concerned distributes large quantities of newspapers for amongst others, News Limited. The Applicant apparently ran site employees for the employer at News Ltd. They stated that they have observed him in an environment where women are present and he behaved at all times appropriately and is indeed very polite towards them. They likewise were also credible witnesses.

8. There were three other witnesses whose statements are referred to and who gave similar evidence about their belief that he would not reoffend.[14]

   [14] All of these witnesses had known the Applicant for many years and certainly most of his time in Australia. They also gave very favourable evidence about his character. They all gave evidence in the witness box and were credible.

9. Another matter that was relied upon by both Ms Jackson and counsel for the Applicant in the course of submissions was that upon the birth of the Applicant’s son, the Victorian Department of Health and Human Services assessed the Applicant in relation to any child protection risks by reason of him being a registered sex offender. The assessment indicated that no risks were present and the case file was closed. The Applicant has been living with his wife and infant son from the time of birth until the date of his detention. Whilst not completely determinative, it is a factor that would indicate a low risk of him committing further offences of the nature concerned.

10. Were the Applicant to reoffend in the relevant sense it would most likely be a sex offence. The harm caused by such offending is well known.

11. Clauses 11.1.2 (3) (b) i and ii of Direction 79 are referred to. The evidence from Ms Jackson and the report of 26 July 2013 from the Broadmeadows Community Correctional Service constitute information and evidence from independent and authoritative sources, within the meaning of Clause 11.1.2 (3) (b) i. That evidence as noted above indicates that the Applicant poses a low risk of reoffending.

12. The evidence from Ms Jackson and the other witnesses, which has been considered above, also points towards the fact that the Applicant has rehabilitated himself within the meaning of Clause 11.1.2 (3) (b) ii. It must be recognised that people who engage in criminal offending can be rehabilitated. Also, as required by that clause it should be recorded that the Applicant has been in the community for close to eight years since the offences against the girls occurred. His violation of his reporting obligations occurred approximately two years ago. He is unlikely to breach his reporting obligations in the future.

13. Taking into account all these factors within the meaning of Clause 11.1.2 the Tribunal finds that there is a low risk of the Applicant reoffending. Nonetheless, as low as the risk of reoffending by the Applicant may be, whilst that risk remains, it must weigh against the Applicant even if it is at the lower end of the scale.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.

14. The Applicant has one minor son born in October 2015. The son is an Australian citizen.

15. The Respondent accepts that it would be in the best interests of this minor child for the Reviewable Decision to be set aside.[15]

    [15] This concession is made in paragraph 22 of the Respondent’s Statement of Facts, Issues and Contentions dated 12 March 2019.

16. The Applicant points to particular evidence to emphasise the importance of this consideration and the weight to be attached to it for the purposes of this application. He contends that the evidence in support of this primary consideration weighs substantially in favour of revoking the Reviewable Decision.

17. Clause 11.2 of Direction 79 identifies several relevant considerations which the decision-maker must take into account in determining the best interests of such minor children and what emphasis should attach to those considerations.

18. Clause 11.2 (4) (a) provides that consideration must be given to the nature and duration of the relationship between the child and the Applicant. The Applicant has lived with his wife and child from the time of the child’s birth. There is strong evidence from a variety of witnesses including the Applicant’s wife, his sister-in-law, and friends who have known the Applicant and his son since the child’s birth, that they have a particularly strong father-son relationship. Also each of those witnesses gave evidence about the dedication with which the Applicant has approached fatherhood. The Applicant’s wife gave very compelling evidence about the support that the Applicant has given her as a parent to their son. The parental responsibilities that have been undertaken by the Applicant have to some extent been amplified in his case because, as she readily conceded, his wife has had some issues with her mental health including anxiety and depression.[16] This factor weighs very heavily in favour of revocation of the Reviewable Decision.

    [16] Evidence which was completely credible to a similar effect was given by the Applicant's wife's sister and also a close friend.

19. Clause 11.2 (4) (a) of Direction 79 requires a consideration of the extent to which the Applicant is likely to pay a positive parental role in the future (taking into account the length of time until the child turns 18). On the evidence before the Tribunal, as he has in the past, there is no reason to doubt that the Applicant would play a positive parental role in the future assuming he continues to live with his wife and son. The son has many years before he reaches adulthood.  As noted earlier, the Tribunal accepts the evidence before it that he has played a very positive role in the past. This has been amplified by some of the challenges faced by his wife’s issues outlined earlier. It was evident indeed from his own evidence that his son means a great deal to him. On the preponderance of the evidence before the Tribunal, there is no doubt whatsoever that the positive role he has played in the past will continue in the future.

20. Other than the breach of the reporting obligations, the Applicant’s prior conduct until he was taken into immigration detention, has had no impact on his son. It would only be in the case of future offending that his conduct would have a negative impact within the meaning of Clause 11.2 (4) (c) of Direction 79. It has been concluded that the Applicant’s risk of reoffending is relatively low. The Tribunal cannot in the circumstances place any real weight on this factor.

21. Clause 11.2 (4) (d) requires the decision-maker to consider the likely effect that any separation from the Applicant would have on the minor child. The evidence from the child’s mother, the other witnesses, and indeed Ms Jackson is that if the Applicant was not permitted to remain in Australia it would likely have life changing implications for his son.[17]

    [17] For instance the contents of Ms Jackson's report of 13 March 2019 under the heading "Psychological Impact on Family in the Event of Deportation" are referred to in their entirety.

22. The infant son would be denied the opportunity to have his father in his life. As will be canvassed in a little more detail in these reasons, it is apparent that in the event that the Applicant is required to leave Australia his wife and son will not join him in India. His wife has significant health challenges and it appears certain conditions suffered by her have not been fully diagnosed. She has received medical advice that some of the symptoms that she has recently started suffering from could possibly be multiple sclerosis. There is ample evidence that she has been a long-term sufferer of severe depression and anxiety. She does not speak any language other than English. She has never been to India before. In a practical sense, it is just not possible for her to go there.

23. There has been evidence given already of the very detrimental effect that separation from his father has had on the Applicant’s infant son. It is probably best to just refer briefly to the evidence of the Applicant’s wife. The evidence was of a similar nature.  She observed that their son has been very different since the Applicant was taken into detention. Prior to this event, he was active and lively with all those around him. She gave evidence as to how he is now much more quiet but at times becomes defiant. In one instance, he punched his mother so hard that she was winded. He has been observed by several witnesses to be frequently hitting his mother.[18] He has also been frequently crying, which was not a trait that was noticeable with him prior to the Applicant being taken into detention. Another feature of his behaviour which is disturbing is that apparently for approximately two weeks after the Applicant was taken into detention the son stopped eating. He was hospitalised on one occasion for stomach issues. Apparently, these issues were caused by him not eating and then vomiting for various reasons. This was particularly distressing for his mother and in her evidence she said it took some time for her to gradually encourage him to regain his appetite. His behaviour has been particularly challenging for her at this difficult time. Other witnesses who have observed the child have made similar observations.[19]

    [18] There was any evidence before the Tribunal a report from a Clinical Psychologist Melanie Yargi dated 22 February 2019. In that report she observed that the difficulties of the infant son in adjusting to the absence of the Applicant have persisted. She also recorded that when the Applicant's wife had attended appointments with her bringing the infant son she had observed him “displaying behavioural problems in the form of acting out towards his mother”. Yargi also noted the difficulties that this was causing the Applicant’s wife.

    [19] The statements of the Applicant’s sister in law and his friends made in similar terms are referred to and have been considered by the Tribunal.

24. Whilst it is probably possible for the Applicant and his son to communicate by various electronic means, as indeed it appears they have briefly whilst the Applicant has been in detention, it does not seem a realistic way for a father and son relationship to re-develop. It is not a realistic substitute for one-on-one father and son contact.

25. When all the evidence before the Tribunal on this primary consideration is taken into account and weighed up it strongly favours setting aside the Reviewable Decision.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY.

26. The Applicant contends that the approach to be adopted by the Tribunal in applying the requirements of this primary consideration to this application is to adopt the position that the expectations of the Australian community are that the Act should be administered in a fair and humane way. Such expectations he contends should be viewed from the perspective of an informed member of the community understanding applicable law and the specific facts of each case.[20]

    [20] The contents of the Applicant’s Statement of Facts, Issues and Contentions under the heading "Expectations of the community" are referred to including the relevant authorities relied upon in support of this contention. They have been considered by the Tribunal.

27. In support of his contention that the community would not consider refusal of the Applicant’s visa appropriate simply because of the nature of his offending, he relies collectively upon several grounds. These grounds are the circumstances of his offending, the situation of his family and his individual circumstances, including a significant time spent in Australia. He also points to the various positive references that have been given by the several witnesses, both in writing and oral evidence from the witness box.

28. The Respondent relies upon the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection.[21] It is contended that this consideration is inextricably linked to the other primary consideration concerning the protection of the Australian community. Therefore, the expectations referred to in Direction 79 are those espoused by the government in Clause 13.3 (1), rather than any objective expectations submitted by any applicant.

    [21] [2017] FCA 1466 at [76].

29. In these circumstances, the Respondent submits that the Australian community would expect the Applicant’s visa to be refused. Reliance is placed upon the nature of the Applicant’s past offending towards vulnerable girls and that objectively viewed his offending must be considered serious. To further bolster this contention the Respondent contends that the disregard shown by the Applicant towards his obligations as a Registered Sex Offender leads to a conclusion that the Australian community would not tolerate his conduct. Accordingly, the Respondent contends that this consideration should be assigned significant weight in favour of affirming the Reviewable Decision.

30. The effect of the decision of Mortimer J in YNQY is to hold that this paragraph is in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such a belief. In substance, this consideration does not favour any applicant.

31. Even if the effects of the decision of Mortimer J in YNQY were not as described, the Tribunal concludes that the community more probably than not would expect that the Applicant not be granted a visa. As he concedes, and indeed on any objective analysis, the Applicant’s offending was serious. The offences against three vulnerable young girls under his supervision were unacceptable. His subsequent breaches of the reporting obligations as a Registered Sex Offender, although explained by him, were also unacceptable. It was a breach of trust on the part of the Australian Community within the meaning of Clause 11.3.

32. Therefore, this consideration weighs in favour of affirming the Reviewable Decision.

    INTERNATIONAL NON-REFOULEMENT OBLIGATIONS.

33. There was no evidence before the Tribunal enabling it to make a decision concerning this consideration. No submissions were made concerning this consideration. Therefore no weight will be placed upon it.

    IMPACT ON FAMILY MEMBERS.

34. Clause 12.2 of Direction 75 does not specify any criteria or factors that the Tribunal should take into account other than to require the Tribunal to consider the impact of a visa refusal on immediate family members in Australia, where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal must consider any relevant evidence that is placed before it that identifies the impact on any affected family member.

35. The Applicant contends that the impact of refusing his visa application would be devastating on his wife. It is said that should he be returned to India she will be permanently separated from him and become a single parent. It is also contended that she would be unable to provide for herself and her son as a single parent. Further reliance is placed by the Applicant on the fact that she has been very dependent upon him for support and care for her and their son. It is also noted that she is unable to drive by herself and does not work. The Applicant’s wife has also suffered from extreme anxiety and depression since her secondary school days. It is pointed out that her mental health issues have become exacerbated since the Applicant was served with a Notice of Intention to Consider Refusal of his visa, and his subsequent placement in immigration detention.

36. The Respondent acknowledges that the Applicant’s wife will suffer hardship if the visa application is refused. The Respondent places significant emphasis on the fact that it is open to the Applicant’s wife to reside in India with him and her son should she wish to do so. A further contention advanced was that there would be community and other allied services available to her for support, together with the fact that she could return to the workforce. Therefore, it is contended that limited weight should be placed on this consideration in favour of the visa refusal decision being set aside.

37. As has been recorded throughout these reasons the Applicant’s wife has given evidence both by way of witness statement and orally. She was a compelling witness of the utmost credibility. Her evidence did evoke considerable sympathy given what she has had to contend with as a result of the Applicant’s offending, conviction and subsequent immigration detention. The sudden appearance of the police at the door of the home she shared with the Applicant with a search warrant (and of course to arrest him), when his offending against the three victims was exposed in 2011 (not to mention the sudden arrival of the Border Force when he was taken into immigration detention[22]) had a dramatic effect on her. It put an immense strain on their marriage. Notwithstanding this, she continued to support the Applicant. This support included attending court with him in January 2012. She gave evidence of being afflicted with extreme anxiety on the day and not being able to enter the court room, instead remaining immediately outside the doors of the court. It is to her credit and also to some degree that of the Applicant that they have been able to work through their differences to a point where their relationship does appear to be genuinely very strong. It appears to the Tribunal that their relationship has improved remarkably since the birth of their son.

    [22] She described this incident as a “complete shock”.

1. Additionally, she gave evidence about her particular health issues, including her mental health issues and recent experiences of dizziness and numbness. She has been referred by her general practitioner for a brain scan to determine if there was some neurological condition which was attacking her nervous system. The medical imaging that she has undertaken has not identified the problem. She gave evidence that doctors have advised that it is possible that the dizziness and numbness that she has experienced could be the early onset of multiple sclerosis. It has not been eliminated as a possible cause. She was prescribed spectacles last year which have helped a little bit with headaches but not the dizziness and numbness.

2. She gave evidence of, and it has been corroborated by other witnesses including her sister and close friend, that as a result of the difficulties the Applicant has faced over the his immigration status, that she has descended into a state of significant anxiety and depression. This affliction has caused her to lose a significant amount of weight.

3. Her general practitioner referred her to the clinical psychologist Ms Yargi under a Mental Health Care Plan for assessment and treatment.[23] Ms Yargi has observed the Applicant to be suffering from anxiety and panic on a daily basis and having intermittent problems with sleep. She also observed a significant weight loss. Ms Yargi’s report, which has been identified earlier in these reasons, is referred to in its entirety for its full force and effect. There can be little doubt that the Applicant’s wife has suffered from significant mental health issues. The Tribunal accepts the evidence of the support that the Applicant has provided in every respect including financial, emotional and physical, throughout their relationship. The Tribunal also accepts the Applicant’s wife’s evidence that since the arrival of her son the Applicant has shouldered a significant level of responsibility for raising their son as a result of the challenges that she faces arising from her health issues.

   [23] It should also be observed that in more recent times she has been prescribed antidepressants. She gave evidence that the initial course of antidepressants gave her negative side effects. She was prescribed a different antidepressant which she continues to take.

4. She currently shares a four-bedroom house with a cousin of the Applicant, who pays one third of the rent. She finds this arrangement difficult. Currently, she receives benefits of $500 per fortnight. She does not work. She is not job seeking presently. She has had a few unskilled jobs throughout adult life including a brief period at KFC (which she estimates to be a year)  and in a pharmaceutical factory as a packer for about a year. She stated that if she returns to the workforce she would be seeking a similar job to the one she had in the pharmaceutical factory. She lives some distance from the shops and is dependent on support from friends of the Applicant to drive her to the shops to be able to purchase necessary items for herself and her son.

5. It was canvassed in evidence whether she could move to India in the event that the Applicant is not permitted to remain in Australia. She said that she has never left Australia before. She is unfamiliar with Indian culture, lifestyle, food and language. The only option if she were to go to India with her son would be to stay with the Applicant and his mother which she was reluctant to do. She expressed an opinion that it is physically intimidating to have to pack up and move to a country that she had never been to before. She also stated that she would be very reluctant to allow her son to grow up in India. She gave evidence that in the event the Applicant were to return to India, she would almost certainly with her son become homeless for some period, until she could make other arrangements. She did confirm in her evidence the fact that the Applicant had been a very good provider for her and her son.

6. It was canvassed in the course of evidence whether, in the event that the Applicant was returned to India, his wife could live with other family members in Australia. This does not appear to the Tribunal to be a realistic option. Her parents, who are getting on in years, live in a Housing Commission flat in Sandringham and simply do not have available space. The Applicant’s wife also expressed concern about the fact that her parents are heavy smokers and she did not wish her three-year-old son to be living in such an environment. A view that is perfectly understandable. She has not spoken to her eldest brother in five years and does not see any prospect of being able to live with him. Another brother lives in Melton with eight children and is not an option. Her sister who did give evidence, lives in Hallam with her fiancé. They have a house but own pets, including four cats and therefore would not be a realistic option either.

7. Given the particular circumstances facing the Applicant’s wife, there is a compelling argument that the impact on her of a decision to refuse the Applicant’s visa would be severe. There are several reasons for this which have been articulated in these reasons. Her significant mental health challenges including her ongoing anxiety and depression loom very large in such consideration. Her experiences of dizziness and numbness in her head, which has resulted in various medical imaging being undertaken, are also of concern. Whilst the causes have not been ascertained and there is a possibility that it may be multiple sclerosis, it is unrealistic to expect her and her son to move to India. There is also the legitimate concern that she expresses that both she and her (Australian citizen) son should not be required to move to India to maintain the family unit. On the other hand, if she remains in Australia it will be very difficult for her and her son to cope without the influence or support of a father-figure. She is unfamiliar with Indian culture, lifestyle and language. It is apparent that she would be most unlikely to be able to work there. In any event she is unlikely in the future to be able to work much or at all in Australia. If so, it will be in limited employment on modest wages. More likely than not, in the event that the Applicant were to leave Australia for India she will be unemployed and dependent on social welfare. The contribution that the Applicant has made to support her in this sense must be acknowledged.

8. Given these findings, this consideration weighs heavily in favour of setting aside the Reviewable Decision.

   IMPACT ON VICTIMS.

9. There was no evidence before the Tribunal enabling it to make a decision concerning this consideration. No submissions were made concerning this consideration.  Therefore, no weight will be placed upon it.

   IMPACT ON AUSTRALIAN BUSINESS INTERESTS.

10. There was no real evidence before the Tribunal, save for the Applicant’s contribution to his current employer’s business, enabling it to make a decision concerning this consideration. In any event, it is likely that another employee could be found to replace him if he were not permitted to remain in Australia. No substantive submissions were made concerning this consideration by either party. Therefore, no weight will be placed upon it.

    CONCLUSION AND DECISION.

11. The Tribunal considers that the Applicant’s offending was, as articulated above, serious. Young girls in the workplace should not be the targets of the behaviour that the Applicant exhibited when he offended in 2011. Compliance with Sex Offender Registration obligations are essential to maintain the maximum possible protection for the community from the kind of conduct that the Applicant behaved in when he engaged in the acts he did with the girls concerned.

12. The Tribunal accepts, after having considered the extensive material before it, including the professional opinion of Ms Jackson which was formidable, together with the evidence of the other witnesses, that the Applicant represents a low risk of reoffending. It considers that the Applicant has in the years since his initial offending in 2011, and subsequently when he failed to abide by his Sex Offender reporting obligations for which he was convicted in 2017, reflected deeply on both his offending and his future obligations as a registered sex offender.

13. The Tribunal has also been impressed with the support that his wife, family and friends have offered the Applicant. His wife is a loving and supporting partner who more likely than not, by reason of what she has had to endure quite unfairly over many years as a result of the Applicant’s behaviour, will be an important influence over him and give him a reason not to offend in the future. Similarly, his son who clearly means very much to him, is another powerful influence to ensure that he will not reoffend.

14. The Tribunal in weighing up the relevant considerations, both primary and other, contained in Directions 79, ultimately considers that the considerations that weigh in his favour are particularly strong. Those considerations are the best interests of his 3-year-old son and the impact on his immediate family member, his wife. Those considerations outweigh those that weigh in favour of affirming the decision.

15. Therefore, balancing the various primary and other considerations to which the Tribunal has referred, the correct or preferable decision in its view is that the Reviewable Decision should be set aside and remitted for reconsideration with the direction that the discretion in section 501 (1) be exercised in favour of the Applicant.

I certify that the preceding 117 (One-hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Cameron

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

Associate

Dated: 3 April 2019

Date(s) of hearing:	25 and 26 March 2019
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Applicant:	Mr G Hughan
Solicitors for the Respondent:	Australian Government Solicitor
Advocate for the Respondent:	Ms K McInnes