HWLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

HWLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 860 (13 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4650
Re:HWLJ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:13 April 2021
Place:Melbourne

The Tribunal affirms the decision under review.
....[sgd]....................................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending against children – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – unacceptable risk of reoffending – other considerations – non-refoulement obligations – risk of harm if returned – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ali v Minister for Home Affairs (2020) 380 ALR 393
DFTD v Minister for Home Affairs [2020] FCAFC 207
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBRv Minister for Home Affairs (2019) 272 FCR 454
Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338
MLNR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
13 April 2021
INTRODUCTION

This hearing arises from orders made by the Federal Court on 22 July 2020 which set aside and remitted the decision of the Tribunal made on 21 October 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 2 August 2018, the applicant’s Resident Return (Class BB) (Subclass 155) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 16 August 2018, the applicant made representations seeking revocation of the cancellation decision. Further written representations from Immigration Solutions Lawyers were made on 3 October 2018 and on 14 March 2019.
On 26 July 2019, the delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act.
On 1 August 2019, the applicant applied to the Tribunal for review of the decision to not revoke the cancellation decision.
THE OFFENDING
The more serious offending took place in September 2011 and June 2014.
The applicant was convicted on a guilty plea for the September 2011 offending which included an indecent assault, an indecent act with a person under the age of 17 and an assault with indecent intent. In the sentencing remarks, the Judge described the offending as follows:
In the early hours of that morning … he came upon a man aged thirty six who’d been drinking at the hotel the previous night. They recognised each other and engaged in idle conversation. The defendant placed his arm around this man’s shoulder and asked if he would like to return to his hotel room for a few drinks. When this man refused the defendant said, “oh come on”, and placed his arms around the man and began kissing his neck and squeezing his buttock. The man told the defendant he was barking up the wrong tree and they parted.
Subsequently at about 9.00 a.m. the defendant approached a sixteen-year-old male waiting for a bus…. The defendant went to shake the youth’s hand, pulled him towards him, dropped his left hand and grabbed hold of the right cheek of his buttock and squeezed it. Notwithstanding that the youth took offence at this the defendant tried to get him back to his hotel room. This harassment continued for about three minutes until the youth’s bus arrived and he was able to board it. This conduct is the subject of the defendant’s conviction on the charge of assault with indecent intent.
Thereafter at about 9:15 a.m the defendant approached another male youth…. The defendant tapped this youth on the shoulder and asked whether he wanted to come back to his hotel room with him. When the youth declined the defendant struck him to the chin, but not sufficiently hard to mark or injure him. When the youth persisted with his refusal to go with the defendant the defendant grabbed his jumper. The youth was vulnerable, he was sixteen years of age, he was living in a shelter and was estranged from his father and his level of concern was heightened by the death of a friend some nine months previously. Scared and intimidated, the youth accompanied the defendant. As they walked to the hotel the defendant told the youth he’d taken speed which made him horny, the youth told the defendant to get a prostitute.
When in the defendant’s hotel room the defendant offered the youth a drink, which the youth declined. The youth went to the bathroom in the passage of the hotel with a view to getting away. The defendant followed him and told him not to nick off. The only stairwell from that part of the hotel went past the defendant’s room. When the youth exited the bathroom the defendant was standing at the door of his room wearing underpants only. The defendant was agitated and offered the youth twenty dollars to stay. The youth backed away and the defendant grabbed him by his jumper, hugged him and ground his penis against the youth’s right leg. Next the defendant grabbed the youth, struck him to the right cheek and threw him to the ground. The defendant asked the youth to have anal sex with him. The youth was terrified and tried to talk his way out before conceding. The defendant removed the youth’s pants and started masturbating him. The defendant removed his own pants and when completely naked went to his knees in a hunched position and guided the youth’s penis between the defendant’s buttocks. The youth was crying. This incident continued for a minute before it stopped and the youth was able to leave. There was no penetration. The youth felt dirty and disgusted by the smell of the defendant on his clothes and had several showers when he returned to his accommodation, scrubbing each time. He burnt his jumper as it smelt of the defendant. The experience – or the episode has had a profound adverse impact on this youth.
The applicant was convicted on a guilty plea of two counts of indecent assault which related to conduct in June 2014. The applicant had approached the victim asking him if he was a schoolboy and invited him for a drink. The victim agreed and got into the applicant’s car. Instead of driving to the hotel, the applicant took him to a carpark behind two shrubs and started smoking ice from a pipe. An agreed summary of facts described the offending which subsequently took place as follows
The accused then asked [V] if he'd ever tried blowback, to which the victim replied that he didn't know what that was…The accused then put his left hand around [V’s] neck, pulled his head towards him and the accused then started kissing [V] and blew smoke from his ice pipe into his mouth. [V] tried to pull away, however the accused was too strong. The accused inserted his tongue into [V’s] mouth and blew smoke into his mouth whilst moving into this position the accused caused a small scratch to the right side of the victim's neck with his fingernail. The victim was stunned and nervous, the accused started talking about having sex with males and that [V] should try it with the accused or another male.
The accused further stated that MDMA increases how horny you can get and other straight males enjoy having sex with other straight males. The accused then grabbed [V] in the same way three or four times, kissing him and blowing smoke into his mouth. The victim was in shock and started pleading with the accused not to put his tongue in his mouth again and asked the accused to drive him to the … Hotel. The accused said, "Sure" and started driving his vehicle. A parks ranger then pulled up in a utility and asked the accused to move his vehicle off the grassed area….. On the way to the hotel [V] spoke about a friend's sexual experience as he felt it would prevent the accused becoming suspicious or agitated. The accused then spoke about how putting toys into your anus makes your groin feel sensitive.
The accused then was placing his hand on [V]’s groin area, the victim then shook the accused hand away with his leg and said, "Can you stop that." The accused stopped and appeared to get nervous.
Driving Offences
Between March 2017 and August 2018, the applicant was convicted of numerous offences involving driving whilst disqualified and with alcohol or drugs in his blood. On 14 March 2018 an intensive correction order was imposed for an eight-month period.
Most recent offending
On 17 April 2018 the applicant was charged with numerous offences to which he pleaded not guilty. He was later convicted for one of those offences, namely entering enclosed land without a lawful excuse. In his letter of 19 August 2018, the applicant said he would defend those charges and was sure he would be acquitted. On 5 October 2018 he received a fine of $200 for entering the land without lawful excuse.
On 9 May 2018 the applicant was found to have breached his intensive correction order and was sentenced to a term of imprisonment of seven months and four days. In October 2018 he was transferred to a Detention Centre.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) of the Act is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A) of the Act, the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[2]
[2] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Further, the applicant’s situation is affected by s 197C and s 198(2B) of the Act. Those provisions state:
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1)       For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)       An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
…
198 Removal from Australia of unlawful non‑citizens
(2B)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)       a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b)       since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)       in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i)        the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)       the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:    The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has ‘a substantial criminal record‘ as defined under s 501(7) of the Act. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
The issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79)[3] there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
[4] Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [38].
The applicant’s reasons for requesting revocation provided in the letters from Immigration Solutions Lawyers included that he was innocent and that he pleaded guilty due to poor legal advice (with respect to the 2011 offending), and because he could not afford to pay for the trial (with respect to the 2014 offending). By the time the applicant applied to the Tribunal to set aside the non-revocation decision he accepted his guilt but said that the offences were committed in the context of mental illness and substance abuse. The applicant continued to dispute some critical elements of the offending and maintained that he had been poorly advised by his solicitors.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.[5]
[5] Direction 79 at 6.1.
The guiding principles in Direction 79[6] that the Tribunal must apply in determining whether to revoke a visa cancellation include:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia; bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
(b)The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
(c)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
(d)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(e)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
[6] Direction 79 at 6.3
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
Primary considerations:
(i)Protection of the Australian community
(ii)The best interests of minor children in Australia
(iii)Expectations of the Australian community
Other considerations include (but are not limited to):
(i)International non-refoulement obligations
(ii)Strength, nature and duration of ties
(iii)Impact on Australian business interests
(iv)Impact on victims
(v)Extent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct –13.1.1 of Direction 79
The offending included crimes of a violent and sexual nature against children and must be viewed very seriously. With respect to the 2011 incident, the sentencing Judge considered that the only appropriate penalty was an immediately effective term of imprisonment and said that:
In summary, on the morning in question the defendant, when intoxicated, embarked on an indiscriminate search for a partner to provide him with sexual gratification. He paid little regard to the age of those he propositioned or their interest in what he had in mind. He ultimately intimidated a vulnerable 16 year old youth into accompanying him to his hotel room. Whilst the force that the defendant used to intimidate the youth was not great it was sufficient for the defendant to achieve his criminal objectives.
The applicant again targeted a vulnerable youth in 2014 this time outside of a shopping centre. He lured the victim into his vehicle and, despite clear protestation, sexually assaulted him. A further term of imprisonment was imposed.
In addition to his sexual offending, the applicant has been convicted of many driving offences including numerous counts of driving whilst disqualified and driving whilst under the influence of alcohol and drugs. The seriousness of these offences is aggravated by the fact that many were committed whilst the applicant was the subject of good behaviour bonds and an intensive correction order. In addition, there was the offence involving a trespass committed in April 2018 for which he received a fine of $200. The frequent and cumulative effect of the offending over a seven-year period, including the multiple indecent assaults, reinforces the seriousness of the offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79

In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
(b)The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further similar offending, then the nature of the harm would be extremely serious. The consequence of further offending would involve physical and mental harm to victims, including children, with long lasting effects. The youth in 2011 was left terrified and crying, the episode has had a profound and adverse impact on him. The victim of the 2014 incident said that he ‘felt violated being touched in places I didn’t want to be’ and said that he has become an introvert, lost his job and gets violent easily.
Likelihood of further criminal or other serious conduct
The applicant contends that he no longer poses a risk to the Australian community and should be allowed to remain in Australia because he committed his offences in the context of alcohol and drug use whilst suffering from an undiagnosed mental health illness. The applicant claims that he has expressed genuine remorse, engaged in appropriate rehabilitative programs and that he has now been properly diagnosed and treated for his bipolar disorder. The applicant says that any risk of re-offending is low if he continues to take his medication. Since that proper diagnosis in April 2018 he has not reoffended. He has been taking his medication and keeping his medical appointments, and he has not consumed alcohol or drugs whilst in detention.
The contentions of the applicant must be seen in the context that he has been outside of the community, either in prison or detention, since May 2018. It follows that his abstinence from alcohol and drugs and his compliance with his medication and treatment have not been tested in the community. There is a risk that, if released and returned to the social settings in which he previously took drugs and alcohol, he would relapse. In this regard, his wife gave evidence that he did not take drugs on his own and that he did so in a social environment. I do accept and take into account that he has a loving and supportive wife who will provide stability for him if he were released. Further, he has a real incentive to not re-offend because he wants to be with his daughter and wife and to cause them no further harm. However, it remains of concern that, despite having a young daughter and the love and support of his wife, he committed the offending for which he was convicted.
Mr Watson-Munro, a clinical psychologist, prepared a report dated 2 December 2020 in which he concludes that the applicant is a low risk of danger to the Australian community, provided he complies with all treatment. He reported that:
It is clear that [the applicant’s] intense period of offending occurred at a time when he was psychologically decompensating. He was experiencing escalating symptoms of post traumatic stress disorder, which was correctly diagnosed. His bipolar disorder however was not diagnosed early on and consequently he remained untreated. This condition was first raised by Dr Kerrie Eagle and ultimately, he was admitted to a … Hospital, where a further and formal diagnosis of bipolar disorder was made and appropriate treatment instigated.
Significantly there has been no further breaches of the law since that time. It is hence arguable that his offending behaviour was primarily a function of his undiagnosed and untreated psychiatric conditions referable to his wartime experiences and propensity to self-medicate with drugs rather than reflecting an innate propensity towards criminal behaviour. I say this advisedly on the basis of his history in the past and indeed subsequent to receiving treatment.
Dr Ellis, a consultant forensic psychiatrist, prepared a responding report dated 26 February 2021. He said:
There are an absence of important risk factors for sexual violence including no diagnosis of a paraphilic disorder or sexually deviant arousal, no diagnosis of personality disorder, no evidence of escalation or diversity in his sexual offending and no evidence of attitudes that support sexual offending.
The available information indicates that his past sexual offences occurred in the context of non or poorly treated mental illness, substance intoxication, anxiety surrounding his sexual identity and place in a Western county and unstable living arrangements, with the factors resulting in opportunistic impulsivity and poor judgment. His general offending relates to substance use, untreated mental illness and the resultant poor judgement.
In this context, [the applicant’s] offences can be understood as resulting from poor impulse control and impaired judgment secondary to symptoms of mental illness and substance abuse. This occurs on a background of experiences of violence and victimisation as a child. His substance use began in his early teens, possibly as a way to regulate high levels of anxiety from childhood trauma, uncertain self identity and neglect. This behaviour then continued as an adult with more exposure to trauma, partly due to a physiological dependence, and partly due to the added stress of mood symptoms.
With appropriate treatment he would present a risk profile of many persons in the Australian community managed by the mental health services. Without treatment, he would fall into a group of persons with a moderately elevated risk of violence and sexual violence, compared with prisoners and psychiatric patients, which would rise to a higher level of concern when his symptoms of illness were not treated and he was intoxicated.
Mr Watson-Munro and Dr Ellis gave oral evidence concurrently and generally agreed with each other as follows:
(a)the applicant has a serious mental illness which can be debilitating and causative of criminal behaviour if not managed.
(b)his offending was bizarre, impulsive and opportunistic and he was likely suffering from a mood disorder at the time.
(c)the majority of people, but not all, respond to treatment for bipolar disorders.
(d)if he abstained from drugs then he would likely comply with his mental health treatment.
(e)the applicant suffered from a substance use disorder which is currently in remission and which required psychosocial treatment.
(f)the rate of relapse into substance abuse varies depending on how long you are drug or alcohol free and whether you can avoid triggers, but it is complicated because there are lots of factors.
(g)remorse is an important factor in terms of rehabilitation, but a statement of remorse is not enough.
(h)Mr Watson-Munro said that the applicant’s ongoing denial of some sexual conduct suggests ‘he has a way to go’ in terms of appropriate remorse but he noted that he has been engaging in treatment.
(i)Dr Ellis was less concerned about his denials because it was the engagement in rehabilitation which is more indicative of the risk of future offending.
(j)they agreed that his ability to comply with treatment and abstain from alcohol and drugs has not yet been fully tested because of his incarceration since mid-2018 which was only shortly after the proper diagnosis and treatment of his mental health disorders.
(k)they agreed that the applicant’s engagement with a private counsellor from Better Help USA using tele-health facilities shows that he is embracing treatment in a positive way.
I accept the opinion expressed by the experts that if the applicant remains drug and alcohol free and continues his medication and treatment then he has a low risk of re-offending. I accept that they are generally optimistic about the applicant albeit that his compliance is yet to be tested in the community. I accept that engagement with rehabilitative programs is a very important factor in terms of risk of re-offending. However, I am concerned about the lack of detail regarding the rehabilitative processes and about the applicant’s ongoing denials of much of the conduct for which he has been convicted. I am not satisfied that he has undergone sufficient rehabilitation or that his conduct shows that he is appropriately rehabilitated.
With respect to programs of rehabilitation, the applicant provided a certificate of completion for an online traffic offenders rehabilitation program issued on 26 September 2020. I also take into account a letter from Telecia Rittiman of Better Health USA from whom the applicant has received counselling in regular sessions since 12 February 2020. Ms Rittiman has discussed with him his traumatic upbringing in Sierra Leone and more recent traumatic events arising from his work including being held at gun point in the Philippines. Their sessions have involved planning for coping with different life situations including anger management and addiction. She said that the applicant has a good heart and is deeply concerned about his family and the impact of his detainment on his daughter. She said:
We have discussed his offending behaviour and how to mitigate putting himself in situations where he could potentially make negative choices. In my view, with on-going support and continued intake of the correct medications, his risk of reoffending is very low.
There is a further letter from Better Health dated 10 November 2020 which sets out courses completed dealing with anger management, substance abuse and addiction and conflict resolution. The applicant’s engagement with Better Health is positive in terms of rehabilitation and risk of re-offending. However, it remains of concern that there is very little evidence of genuine remorse with respect to his offending. Ms Rittiman refers to the applicant’s dealing with past trauma and says that he has empathy and understanding in the context of his family. However, she does not mention empathy or understanding with respect to the victims of his offending. There is an absence of evidence to establish that he has a genuine insight into how wrong his criminal behaviour was.
The applicant said in his statement dated 8 October 2020 that he accepts full responsibility for his conduct and that he fully understands the seriousness of his crimes. He said that he pleaded guilty mainly because he understood that no one has the right to make other people feel unsafe and traumatised. He addresses his past trauma, drug and alcohol problems, and his mental health issues but there is very little to show he understands the impact of his criminal behaviour on his victims. Mr Watson-Munro questioned the applicant regarding his attitude to his offending and he reported that the applicant:
expressed significant and appropriate remorse regarding his behaviour, not only in terms of his own position but more particularly, the impact which his current situation and prior actions have had upon his family. He expressed deep concern regarding his wife and child, particularly in the context of their daughter now living in Sydney with her two parents being unavailable.
I note again a lack of any detail regarding remorse for his actions and the impact on his victims.
I do not accept the applicant’s statement as to why he pleaded guilty because it is completely contrary to his previous statements that he pleaded guilty because of poor advice and a lack of finances. It concerns me that the applicant in his most recent statement is prepared to give such obviously false evidence. His guilty pleas had nothing to do with an understanding that no one has the right to make other people feel unsafe and traumatised. This is apparent from the lawyer’s letters dated 3 October 2018 and 14 March 2019 which include a denial of the charges and that he pleaded guilty because of poor advice and his financial circumstances. The applicant’s letter dated 19 August 2018 said that he pleaded guilty in 2012 to offences he did not commit. He expressed a slightly different attitude in his letter of 20 February 2019 when he said:
My conviction of 2012 … is something that has caused a significant mental and psychological trauma in my life. This is because such an offence doesn't reflect who I am as a person and certainly does not represent my signatures on the various codes of conduct and all other policies that I have signed to specifically protect the interest of children and young people, while also saving their lives, globally.
The incident of the above happened exactly six months after my arrival in Australia, a Western nation. I was still learning the culture while unfortunately making myself vulnerable to the social environment. I should have never spoken to him. I was stupid.
I made the wrong judgement and the wrong decision. I will regret it for the rest of my life. But most importantly, I am extremely sorry to everyone that I let down including the alleged victim, the police, my wife …, family and everyone that became aware of this incident up to this present date.
The applicant’s reference to ‘the alleged victim’ suggests a failure to take responsibility for, and a lack of insight into, his offending.
With respect to the 2014 incident, the applicant said in his 20 February 2019 letter:
On the day of the incident in 2014 I had just lost my job … because of discrimination. I was self medicating using illicit drugs as I could not sleep and was have flashbacks from my PTSD. I had been out all night and went for a “smoke” with a new friend. As per usual the Police were following me. We then met another friend at the local bar. At some point I touched my new friend on the thigh as part of a conversation at another point as a group of men we were discussing sex. I was not and am still not sure how the Police could have charged me for the events of that day. But my SOR Officer met with my “friends” after I left them and asked them about what happened and turned it into something it wasn’t. They were all high and full of alcohol and encouraged to cooperate with the Police
.…
It took from 2014 to 2016 to come to court. It was a costly exercise and initially I spent 70 days in custody seeking bail. In the end, the Police knew they did not have a case but also knew we did not have the funds to take it to a contested hearing so we were advised to negotiate. At no point did I agree to any guilt and I still dispute it but I had to so that costs would be conceded by Police and I could move to Newcastle with my family. At the time of the deal they were already in Newcastle and my bail conditions were as such that I could not leave Victoria. Of course this added to the pressure of the plea.
The applicant’s lack of insight into his offending is further confirmed by his oral evidence at the hearing.
Despite the findings of the judge as to the events in 2011, the applicant maintained that he asked his victim back to his hotel room to help him, and that he gave him some cash and then hugged him. The sentencing remarks paint a very different picture. Further, the applicant said he had no intention to have sexual relations with the victim despite agreeing that he stripped down to his underwear. When it was put to the applicant that he struck the victim in the face, he laughed and said that this was absurd and did not make sense because the victim was bigger than him. When it was put to the applicant that he guided the victim’s penis between his buttocks, he said that it never happened, and that the victim had not included this information in his first police statement. He appeared to be blaming the victim. The applicant had previously told Dr Kerri Eagle, a forensic psychiatrist, that the victim was ‘stitching me up’.[7]
[7] Exhibit 1, Report from Dr Eagle dated 7 March 2018 at G21 p 185.
With respect to the events of 2014, the applicant denied many of the facts which were part of the guilty plea and he said that the victim ‘definitely lied’ about the applicant touching him on the groin. In his 20 February 2019 letter, the applicant said that the SOR[8] Officer ‘turned it into something it wasn’t’. Further, the applicant admitted giving false evidence to the Tribunal on 8 October 2019 as to whether he touched the second victim’s penis.[9]
[8] Sex Offender Registry.
[9] Exhibit 8, FTB2 p 179 - 180.
The applicant’s attitude to his offending is of great concern. It is particularly concerning in terms of risk to the Australian community that there was a considerable gap between the two incidents of sexual offending and that he committed the later offending after he had been sentenced and imprisoned for the first offending. Despite being sentenced to a term of six months of imprisonment, the applicant did not learn his lesson and committed further sexual offending three years later for which he was sentenced to a further term of imprisonment of 70 days.
I acknowledge that the offending occurred in the context of substance abuse and an undiagnosed and improperly treated psychiatric disorder but there remains a real risk of relapse and non-compliance. In particular, I note from the 2018 report of Dr Eagle, that the applicant’s wife had told her that they sought help for his Post Traumatic Stress Disorder (PTSD) and depression when they were living in the Philippines and that he was diagnosed with bipolar affective disorder then. Later in 2015 the applicant attended nine sessions with a psychologist, Dr Katie Trusewicz, who diagnosed complex PTSD including suicidal thoughts and major depressive disorder in her report dated 15 June 2015 and said:
We will continue to work with [the applicant] on his psychological diagnosis via psychological treatment, cognitive behavioural therapy, and he is prescribed medication to support this work and minimise symptoms. He requires long-term support with the clinical team to minimise the symptoms.
Despite this diagnosis and the availability of further treatment and support, there is no evidence to indicate that the applicant engaged with the required long term treatment, but rather, the evidence suggests that he continued to self-medicate by taking drugs and alcohol until about April 2018.
I was generally unimpressed by the applicant as a witness because he was evasive when answering questions and he often blamed the victim or others for his own wrongful behaviour. The applicant showed little empathy for his victims nor demonstrated any genuine insight into the wrongfulness of his behaviour. His expressed remorse was not genuine, and he has attempted to minimise his conduct by giving false testimony and blaming the victim. The applicant’s lack of genuine remorse is a factor relevant to the likelihood of the applicant engaging in further criminal behaviour. It causes me to place less weight on the expert opinions that he only has a low risk of re-offending. I consider that there is a real and unacceptable risk of the applicant re-offending. In my view the risk of re-offending is low to moderate.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[10] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[10] (2014) 225 FCR 424.

In this case, I have reached the view that the nature of the offending and the harm that would be caused if it were to be repeated is so serious that any risk of similar conduct in the future is unacceptable.[11]
[11] Direction 79 at 6.3(4).
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[12] The applicant has committed most serious crimes of a sexual nature against vulnerable minors and I consider that there is a real risk of the applicant repeating those crimes.
[12] Direction 79 at 13.1(1).
The protection of the Australian community is a factor that weighs most heavily in favour of not revoking the cancellation decision.
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years.
The following factors that I must consider and are relevant to this application include:
(a)the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child; and
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant has a 10-year-old daughter who is an Australian citizen. The respondent accepts that it would be in her best interests for the visa cancellation to be revoked. If the cancellation is not revoked, she will be separated from her father because her mother will not take her to Sierra Leone due to the conditions there. The applicant’s daughter is clearly devoted to her father and has already been terribly affected by their separation. The effect on her of what would effectively amount to a permanent separation would be even worse. I note the psychologist report of 8 May 2019[13] which found ‘recent anxiety and adjustment issues in the context of separation from her father’. Those issues would remain but be improved if she were reunited with her father.
[13] Exhibit 1 G72 p 649.
The applicant has had a long and loving relationship with his child, and he is likely to play a positive parental role in the future if released. The child wants her father to be released so he can play that role. She would be devastated if her father was returned to Sierra Leone, in particular knowing how that would impact him.
I take into account that the applicant’s wife is currently providing a parental role, but that barely diminishes the weight to be given to this consideration. I accept that the mother cannot replace the applicant as a father and in particular, cannot provide the stories of her African culture. There is no evidence of the impact of his prior offending on his daughter except that it has caused them to be separated. I note that the applicant’s daughter and wife currently reside in Bangladesh but that they are based in Australia and intend to return once COVID-19 restrictions allow them.
I accept that if the applicant is removed from Australia it will have a very significant long-term negative impact on his daughter. In conclusion, the best interests of minor children is a factor that weighs heavily in favour of revocation.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[14] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in paragraph 13.3(1) rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[15]
[14] [2017] FCA 1466.
[15] (2019) 272 FCR 454.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.
The applicant, by his repeated offending and by maintaining his innocence despite his convictions, has shown a lack of respect for Australia’s law enforcement framework. This is a case where non-revocation is appropriate both because of the nature of his character and the nature of his offending. The Australian community would expect that a person who has committed repeated sexual offences against minors should not hold a visa and should not be permitted to remain in Australia. I note that there have been some incidents in detention which suggest that he still has anger management issues. During one incident in April 2019 he became abusive and aggressive towards the staff. He later admitted that he over-reacted and apologised.
Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79, but these are not exhaustive.[16]
[16] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 [86].
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm. I am required to give separate and meaningful consideration to each of these representations. I am not entitled to sidestep the obligation to consider the potential breach of Australia’s non-refinement obligations on the basis that ‘a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then.’[17]
[17] Ali v Minister for Home Affairs (2020) 380 ALR 393, 426 [101]; FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 [45].
I will consider separately the risk of harm if returned to Sierra Leone, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
Risk of Harm
The applicant has made numerous representations concerning risk of harm in Sierra Leone because homosexuality is illegal and is considered ‘taboo’ such that members of the LGBTI community face violence, harassment and discrimination. This risk of harm is exacerbated because of his mental health issues for which he would not receive proper treatment. In fact, he would be actively discriminated against and even subjected to violent forms of traditional healing. Mr Watson-Munro concludes that because of a lack of psychiatrists in Sierra Leone, the applicant’s bipolar disorder would likely go untreated and there would then be a recrudescence and escalation of the symptoms. The applicant’s wife, who has worked in Africa, is concerned that if he were returned that it would result in his death or permanent disability. She said that he would not last there without his medicine and his supports.
Country information supports the contention that there are insufficient psychiatrists to deal with the mental health problems of Sierra Leone and I consider that if the applicant were returned it is most likely that he would not receive the necessary treatment for his mental health disorders. Sierra Leone also has a problem with COVID-19 particularly within the prison community who face horrific conditions. Sierra Leone is extremely poor and access to basic services is limited. There is a law from 1861 which prohibits male to male sexual acts with a penalty of life imprisonment. Recent newspaper articles report that the country’s President has decreed a life sentence for perpetrators of sexual offences against minors.
I accept that the applicant holds a genuine fear that he will be at risk of harm because of his past criminal convictions for sexual offences against minors and because of his bisexuality.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[18]
[18] Direction 79 at 14.1(1).
In Ali v Minister for Home Affairs (2020) 380 ALR 393 the Full Court said with respect to Australia’s non-refoulement obligations:
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a)non-refoulement obligations that may arise because Australia is a party to:
(i)the Refugees Convention; or
(ii)the Covenant [being the International Covenant on Civil and Political Rights]; or
(iii)the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b)In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked.[19] The applicant submits that he is owed non-refoulement obligations and relies upon the country information provided. In particular, the applicant says that if returned, he is likely to be identified as a person who has serious criminal offences against males which will label him as a homosexual. Further, because of the reporting of his case, he will be labelled as a child sex offender. I note that included in the evidence is a copy of an online article from ABC news reporting that the applicant has been jailed for indecently assaulting a teenager. Given that homosexuality is a crime in Sierra Leone and that homosexuals face violence, harassment and discrimination, I consider that there is a real risk that the applicant will face harm if he is returned to Sierra Leone. I consider that the applicant’s life or freedom would be threatened on account of his sexuality or label of being a homosexual and child sex offender. In addition, he would face discrimination because mental health is a ’taboo’ in Sierra Leone. Consequently, I consider that Australia owes the applicant non-refoulement obligations and that if he were to be returned Australia would be in breach of those obligations.
[19] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [28].
Consequences of a decision to not revoke
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa,[20] bearing in mind my determination that the applicant is a person to whom non-refoulement obligations are owed.
[20] See Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 [61].
I find that, pursuant to s 198 of the Act, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur. I take into account that if the cancellation decision were not revoked, it would be likely that the applicant would remain in detention whilst options were considered in light of Australia’s non-refoulement policy.[21] I take into account that the applicant may apply for a protection visa and that he would remain in detention whilst that application was considered. However, there is no evidence that the Minister is considering exercising his personal discretion in favour of the applicant. Further, whilst I am not obliged to speculate on what might happen next,[22] where the Minister opposes the revocation of the cancellation of the visa on character grounds, it seems incongruous for the Minister to effectively reverse his position and grant him a protection visa or exercise a discretion in favour of the applicant.[23]
[21] See DFTD v Minister for Home Affairs [2020] FCAFC 207, [23].
[22] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [150].
[23] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [56].
The applicant does not contend that he faces indefinite detention in Australia, but I note that any detention would not be indefinite[24] because of the obligation to remove him as soon as reasonably practicable. The consequence of not revoking the cancellation decision is that the applicant will be removed to Sierra Leone as soon as it is reasonably practicable, subject to any successful protection visa application. There was no suggestion that it is not reasonably practicable for him to be removed.
[24] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [86] – [98].
Given that the legal consequence is that the applicant would be returned to Sierra Leone, it is my assessment that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked.
The consideration of non-refoulement obligations and risk of harm weigh heavily in favour of revoking the cancellation.
Further, the consequence of non-compliance with Australia’s treaty obligations not only impacts the applicant, it also impacts negatively upon Australia’s reputation and standing in the global community.[25] I consider that this adds further weight in favour of revoking the cancellation.
[25] See Ali v Minister for Home Affairs (2020) 380 ALR 393, 423-424 [91].
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including deprivation of his freedom, violence, a deterioration in his mental health condition and a lack of support if he were to return to Sierra Leone.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
(a)how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia in 2011 at the age of 35 years old. He has resided in Australia for over nine years and has had some employment after initial challenges. He secured his first job in November 2011 working as a customer service officer until he was incarcerated for the offending. He worked in customer service for a bank and had various jobs in marketing and sales from 2014 to 2017. Some of these jobs were lost after background checks revealed his sexual offending. This positive contribution to the Australian community was not for a significant length of time.
It is apparent from numerous positive letters of support that he has made friendships particularly in his neighbourhood and through his daughter’s school.
The applicant’s wife and child are both Australian citizens. His wife is very supportive of him. I consider that he has close and strong family ties to Australia and some social ties. His removal from Australia would have a significant negative impact on his wife but I note that she is employed and therefore financially independent. Further, he has been away from her since he was incarcerated in May 2018.
While this is a factor in favour of revocation, I give it less weight because he began offending in 2012 which was soon after his arrival in 2011.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Impact on victims
There was no evidence in relation to the impact on the victim of a decision to not revoke. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Sierra Leone in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.

The applicant was born in Sierra Leone in 1975 and was educated there, completing a degree from a university in Sierra Leone. He worked in a bank in Sierra Leone from 2002 to 2004 and then started working for an international agency. He met his wife while working in Sudan and they married in 2008. They moved to the Philippines where their daughter was born in November 2010. They moved as a family to Australia in 2011 when the applicant was 35 years old.
The applicant said he has a few friends in Sierra Leone, some of whom hold important positions, but he has not been in contact with them for the last two years. His brother and mother live there but he has not had contact with them for two years. The internet connection is poor in Sierra Leone which would make communicating with his family in Australia difficult.
Much of what I said with respect to risk of harm and non-refoulement is relevant to this factor and I will not repeat it all. The most significant impediments arise from his PTSD (and history of suicidal ideation), depression and bipolar disorder which would not be properly treated and would likely lead to him suffering discrimination and harm. If not properly treated his symptoms would get worse and a downward spiral would be likely, potentially involving substance abuse, further offending, violence and prison.
As discussed above, the other significant impediment is that he would also be at risk of serious harm and deprivation of his liberty because of his sexuality and his past offending of a sexual nature involving males and minors.
This is a factor which weighs strongly in favour of revoking the cancellation decision.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations to determine whether there is another reason to revoke the cancellation decision.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation decision. The primary consideration of the interests of minor children weighs heavily in the applicant’s favour because his daughter is only 10 years old and will be impacted very negatively if he is not released to the community. The other considerations of non-refoulement obligations, strength, nature and duration of ties to Australia and the extent of impediments if removed weigh in favour of revocation.
The most significant factor against revocation is my view that the risk of further offending of a sexual nature against minors represents an unacceptable risk, even if that risk is considered low. It was very clear from the applicant’s behaviour in the witness box and from his previous written statements that he does not accept responsibility for the totality of his offending and that he has not developed an adequate understanding of the seriousness of his actions and their impact on young and innocent members of the community. Another important factor is that his ability to remain drug and alcohol free, and to comply with his medication and treatment regime is untested in the wider community. Both experts agreed that his risk of recidivism would increase if he relapsed into alcohol or drugs or he failed to take his medication.
By cancelling the applicant’s visa, the government is exercising its commitment to protect the Australian community from harm. The primary considerations should generally be given greater weight than the other considerations[26] and I see no reason not to apply that approach in this case.
[26] Direction 79 at 8(4).
This conclusion is reached by applying the principles in paragraph 6.3 of Direction 79 to the specific circumstances of the applicant who has committed serious crimes of a sexual nature against vulnerable members of the community:
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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. By committing the acts of indecent assault and breaching numerous court orders, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and caused real long-lasting harm to his victims.[27]
(b)The Australian community expects that the Australian government should cancel the visas of non-citizens who commit such serious crimes in Australia.[28]
(c)A non-citizen who has committed serious crime, including of a sexual nature against a child should generally expect to forfeit the privilege of staying in Australia.[29]
(d)In this circumstance, the cumulative effect of the criminal offending involving the sexual abuse of children, and the harm that would be caused if it were repeated, is so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations are insufficient to justify not cancelling the visa.[30]
(e)Australia has a low tolerance of any criminal conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. This is applicable to the applicant who lived most of his life overseas and then shortly after arriving in Australia at the age of 35 commenced a seven-year period of offending for which he was incarcerated.[31]
(f)I have considered the serious consequences of this decision on the applicant’s wife and child[32] who will suffer significantly as a result of being separated from their husband and father. This is very unfortunate for them, but it arises because of the conduct of the applicant who represents an unacceptable risk to the Australian community whose protection and expectations I must take into account.
[27] Ibid at 6.3(1).
[28] Ibid at 6.3(2).
[29] Ibid at 6.3(3)
[30] Ibid at 6.3(4).
[31] Ibid at 6.3(5)
[32] Ibid at 6.3(7)
It follows from the application of these guiding principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.
DECISION OF THE TRIBUNAL
The decision of the Tribunal is to affirm the decision under review.

101. I certify that the preceding 100 paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

.......[sgd].................................................................
Associate
Dated: 13 April 2021

Date(s) of hearing:
15 and 16 March 2021

Counsel for the Applicant:
Mr Nicholas Poynder

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr Patrick Knowles

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 860

13 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Jurisdiction

Date(s) of hearing:	15 and 16 March 2021
Counsel for the Applicant:	Mr Nicholas Poynder
Solicitors for the Applicant:	Parish Patience Immigration Lawyers
Counsel for the Respondent:	Mr Patrick Knowles
Solicitors for the Respondent:	Sparke Helmore Lawyers