JDZP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 4229
•23 November 2022
JDZP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4229 (23 November 2022)
Division: GENERAL DIVISION
File Number(s): 2022/7252
Re: JDZP
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal: Emeritus Professor P A Fairall, Senior Member
Date:23 November 2022
Date of written reasons: 9 December 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister, dated 1 September 2022, not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked.
............................[SGD].......................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) – Direction No. 90 – sexual offence against child – long term resident – protection of the Australian community – expectations of the Australian community – links to the Australian community – impediments to relocation – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) s 5G, 499, 500, 501, 501CA
CASES
De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCAFC 185
GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3246
Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 539
Leau and Minister for Home Affairs (Migration) [2019] AATA 843
McCutcheon and Minister for Home Affairs (Migration) [2019] AATA 932
RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076
Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361Puni and Minister for Home Affairs (Migration) [2019] AATA 3943
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
9 December 2022
INTRODUCTION
Mr JDZP (the applicant) is a 52-year-old citizen of the United Kingdom. He arrived in Australia on 23 October 1970, before his first birthday. He has not left Australia since, and was apparently unaware, until his visa was cancelled, that he was a non-citizen.
One of the criminal offences referred to below relates to a minor, I have therefore decided to anonymise the applicant’s name to protect the identity of the child.
The applicant and his former de facto partner were drug users. There are three children from the union. There was some family conflict and in 2001 the relationship broke down.[1] His three children were removed by child welfare authorities and placed with his partner’s mother. He has had not had contact with his ex-partner or children since the family separation.
[1] R5, 30.
His parents separated when he was six years old, and his mother re-partnered. His father and stepfather are deceased. He left school in Year 8. He worked for a period in a timber mill, operating a bench saw, but in or around 2012 he injured his back in an industrial accident and has been on Disability Support Pension since. He lives in a caravan on a disused factory site belonging to a friend and occasionally helps around the property with light tasks.
He has a modest criminal record, and until 2021 had not been to prison.[2] The following matters are recorded in his record: three drug related offences in 2013 (no conviction recorded, drug diversion program),[3] drug offences in 1997[4] ($200) and 1990 ($500 fine),[5] wilful and obscene exposure in 1990 ($500 fine); and some minor traffic offences in 2013, 2005 and 1989 (all punished by way of fine).[6] The only serious criminal offence in his record is that in respect of which his visa was cancelled, and for which he was sentenced to 12 month imprisonment with all but 3 months of the sentence suspended.[7]
[2] G4, 23.
[3] R3, 24, 25.
[4] R5, 33; R6, 45.
[5] G4, 24.
[6] R4, 28.
[7] Statement of Facts: R2, 21.
He was released on parole on 22 January 2022 and transferred to immigration detention. He contracted COVID just before the hearing, which was adjourned for a few days to enable him to participate in the hearing. At the time of the hearing, he was residing in an immigration hotel, and still clearly recovering from the effect of the disease.
MANDATORY VISA CANCELLATION
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ by reason of paragraph 501(7)(c) of the Migration Act 1958 (Cth) (‘the Act’) and therefore fails the character test by reason of paragraph 501(6)(a).
On 28 October 2021, the applicant pleaded guilty before the District Court of Queensland to one count of indecent treatment of a child under 12 years, in his care. He was convicted and sentenced to 12 months imprisonment with a non-parole period of 3 months. He was discharged from prison on 27 January 2022.[8]
[8] G6, 31.
On 15 November 2021, a delegate of the Minister cancelled the applicant’s Class BF transitional (permanent) visa, as required by subsection 501(3A). [9]
[9] G16, 51.
On 8 December 2021, the applicant applied to the Minister, in accordance with an invitation to do so, to consider whether to revoke the decision to cancel his visa.[10]
[10] G7, 34.
The applicant provided a statement, in which he said:
The reasons for revocation outweigh reasons for non-revocation, including but not limited to:
Having lived in Australia my whole life – I was a “Ten Pound Pom” who emigrated with my UK citizen parents;
Arriving in Australia when I was 51 weeks old and have never left;
Having significant ties to Australia (education up to year 9 level and employment); and
Having significant family ties to Australia including adult children, brother, nephew, deceased who are buried here.[11]
[11] G7, 35.
He provided an additional supporting statement.
Regarding the court sentencing:
My lawyers did not inform me of all the possible consequences of pleading guilty to the charges. They told me that if I went to trial and lost, I could get 3 to 8 years of incarceration and that pleading guilty would get the best outcome. More recently I learnt that my lawyers knew that deportation could have been a possibility which I was not informed of before deciding to plead guilty.
Additionally, my lawyers did not inform me that a psychiatric evaluation would have helped my case. I feel they have let me down and did not have my best interests at heart.
Before the sentencing, I was advised to say nothing other than Yes/No your Honour and was never given a chance to speak during the session.
I was just going to cop this jail time for something I did not do and get back to my life. Unfortunately, things did not work out as I’d hoped. In future I’ll be very weary of people pretending to be my friend.
I maintain my innocence on this issue.
Regarding leaving the country:
I've never left Australia and have never had the interest to do so. I don't know anyone in the UK. I've never lived there. I was 51 weeks old when we came to Australia as a 10-pound baby. I have degenerative osteoarthritis, as a result I was on a disability pension, unable to work. The prospects for me in the UK are very limited and possibly non-existent given the current state of things.
Australia is my home, where I’m the father of 3 adult children and have worked all my adult life and participated in the community, serving on the Rural Fire Brigade, and helping where I can.
I have a handful of good friends which I help out and they also help me. These friends were and still are shocked at the situation I’m in, and also believe I’m innocent.
I would also like to add, I'll do counselling course's if required and get a psychiatric evaluation for risk of re-offending easement if necessary[12].
[12] G8, 37.
On 1 September 2022, a delegate of the Minister declined to revoke the cancellation of his visa.[13] On 7 September 2022, the applicant applied to this Tribunal for review of the decision not to revoke the cancellation of his visa.[14] He stated:
I have never lived in the UK. I’ve spent all my life in Australia. I don't know anyone in the UK.[15]
[13] G3, 8.
[14] G1, 1.
[15] G2, 6.
The application was heard by teleconference on 18 November 2022. For the record, I note that the hearing was postponed twice, due to illness.
A solicitor from Sparke Helmore lawyers, Mr M. Hawker, appeared for the Respondent. The applicant was not legally represented at the hearing but appeared by video link from hotel quarantine in Adelaide.
FINDING ON THE CHARACTER TEST
The applicant does not dispute that he was, at the time of visa cancellation, serving a sentence of 12 months imprisonment, on a full-time basis, in the Brisbane Correctional Centre, and that he fails the character test. He was convicted on 28 October 2021 and released on 27 January 2022.[16]
[16] G6, 31.
I am satisfied that the applicant fails the character test.
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.In determining whether the Tribunal can be satisfied that ‘there is another reason why the original decision should be revoked’, pursuant to s 501CA(4)(b)(ii) of the Act, the Tribunal must consider the legal consequences of the decision.[17] Having regard to sections 189, 196, and 198 of the Act, the legal consequence of not revoking the cancellation of the applicant’s visa is that he will be liable to be removed to the United Kingdom and be detained in the meantime.
[17] DLJ18 v Minister for Home Affairs [2018] FCA 1650 at [5] (Flick J) and [28] (Bromberg J).
I turn to the question of whether there is ‘another reason’ why the original decision to cancel his visa should be revoked.
The Discretion Under Subsection 501CA(4)
In exercising the discretion under subsection 501CA(4), on the basis of paragraph 4(b)(ii), the Tribunal is required by subsection 499(2A) to comply with Direction No. 90 (the Direction).[18]
[18] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Part 1 of the Direction sets out the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. (emphasis added)
Part 2 of the Direction is entitled Exercising the Discretion. There are four primary considerations (paragraph 8), and five ‘other’ considerations (paragraph 9) that must be considered ‘where relevant to the decision’. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) the extent of impediments if removed, the impact on victims, and links to the Australian community.
The Direction also contains principles and rules relating to the weighing of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that a non-primary consideration may be dominant in the particular circumstances of a case.[19]
Primary Considerations
[19] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Protection of the Australian community: PC1
Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community
Paragraph 8.1(2) provides that decision-makers should also 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 to date: paragraph 8.1(2)(a)
I have described the applicant’s criminal history as recorded by the Nationally Coordinated Criminal History report prepared by the Australian Criminal Intelligence Commission. Apart from the most recent offending against a child, his offending cannot be regarded as other than minor. Eight of the offences attracted fines not exceeding a total of $2,000 and were committed more than twenty years ago. Of the remaining 4 offences, three were committed 9 years ago and no conviction was recorded. The applicant entered into a recognisance to be of good behaviour for 4 months and entered a drug diversion program. The gravamen of his offending is the sexual offence against a child, for which he was sentenced to 12 months imprisonment to be suspended after serving 3 months imprisonment. The period of suspension ends on 27 October 2023.
There are two incidents of concern contained in police files, a complaint of domestic violence in 2011 (involving a slap across his partner’s face),[20] and a reference to possible indecent dealing with a young child in June 1999.[21] I note that no criminal charges arose from either incident. The first incident is dealt with more fully under the heading of Family Violence.
[20] R5, 30
[21] R5, 32.
According to a police statement, in June 1999 an allegation was made by the applicant’s ex de facto partner that he had indecently assaulted an eight year old girl, while at a beach in NSW. When confronted by the child’s mother, the applicant was reported to have threatened to kill himself. The statement records that the applicant admitted touching the girl to his mother and de facto, but that the child’s parents never reported the matter and wanted the applicant to get counselling. According to the complainant, he continued to socialise with the girl and her family. It appears that no charges were laid.[22]
[22] R5, 32.
The applicant denied to the Tribunal that he had touched the girl inappropriately and said that this allegation was pursued by his ex-partner out of spite. In view of the lack of police action, the lack of supporting material or witness statements, and the 22 years that have passed, the Tribunal attaches little to no weight to this report.
Assessing the mature and seriousness of his criminal record
Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending. I note that sexual crimes are viewed very seriously by the Australian Government and the Australian community. I also note the sentences imposed; the frequency of offending and/or whether there is any trend of increasing seriousness; and the cumulative effect of repeated offending.
In relation to the applicant’s sexual offending, I note the Court Brief provided by the Queensland Police Service.[23]
[23] R1, 13.
The defendant in this matter is [JDZP] (50yrs)
The defendant and victim are known to each other. The defendant has known the victim child since she was around 1 years of age as he was close with the victim child’s family.
Between the 3rd of January 2020 and 23rd of March 2020, the victim child stayed the night at the Defendants address at [address withheld]
The victim child stayed with the defendant a total of four times, one night at a time.
The defendant lives in a caravan which is situated within the boundaries of [address]
On an unknown night during one of those occasions where the victim child has stayed in the caravan with the defendant. The victim child was asleep on the bed inside the caravan. The victim child woke up to the defendant on his knees on the bed.
The victim child was laying on her back at the time. The victim child felt the defendant lick her vagina, in between her vagina.
She looked up and saw the defendant looking directly at her face.
The victim child asked the defendant what he was doing, before the defendant asked the victim child if she wanted to play a game called fortnight to which the child agreed.
On the 2nd June 2020, [the child] was having a shower with her younger sister. [the sister] has called out to their mother saying, “[the child] is playing a disgusting game” When asked what the game was [the sister] replied with “She is trying to lick my vagina”. [The mother] spoke with [the child] who disclosed to her what had happened on one of the sleep overs at the defendant’s house. The next day [the mother] reported the matter to the Police, with [JDZP] participating in a s93A statement on the 21st June 2020.
On the 27th July 2020, Police have attended [address] and spoke with the defendant. Police have executed a Crime Scene warrant at the address, taking photographs of the caravan. The defendant was issued his rights and cautions and participated in an electronic record of interview.
The defendant stated that [the child] had slept over at his place approximately four times. He stated that each time both he and [the child] would sleep in his bed. He stated that at first they slept both in the same direction but [the child] kicked him during the night so from then on they slept top to tail. When asked about the allegation made the defendant denied it and stated that on one of the nights [the child] was sleeping in the bed and woke up after having a nightmare, saying “a monster was drooling on me” with the defendant comforting [the child] before she fell back to sleep. This was the only occasion he could remember. He stated he can’t remember the incident outlined to him occurring stating no it didn’t happen.
The defendant was arrested and released on a bail undertaking to appear at the Gatton Magistrates Court on the 31st of August 2020
I have carefully read the comments of the sentencing judge, which resulted in a relatively benign sentence.[24] The learned judge said:
I am required to have regard to the nature of the offence, including any physical harm or threat of physical harm to the child. I accept that in the present case there is no evidence of any physical harm or threat of physical harm to the child. However, the offence does, as I have already said, exhibit some elements of seriousness. It involves skin-on-skin contact when the child was in your care and was particularly young and, therefore, vulnerable. You betrayed your position of trust to take advantage of the circumstance for your own sexual gratification. I do regard the circumstances of the offence and the nature of it as being a feature telling against a finding of exceptional circumstances. [25]
…
I am required to have regard to your prospects of rehabilitation, including the availability of any treatment that might cause you to behave in a way acceptable to the community. I am not in possession, as I have said, of any psychological or psychiatric report as to your circumstances. However, given that you are a mature person, have not committed a similar offence previously, and that you will be a reportable offender after this, it does seem to me that there are at least prospects of your rehabilitation.
I am required to have regard also to your antecedents, age and character. You have otherwise been a useful member of the community and contributed by being a worker raising children and otherwise not committing offences. You are now mature. And it seems to me, in light of the reference that speaks well of you, I should conclude that these are matters which weigh in your favour. I am required to have regard to your remorse. And as I have already indicated, I accept that you are genuinely remorseful. I accept that in your circumstances, it is submitted that the combination of circumstances are such as to amount to exceptional circumstances within the relevant provision. In the end, I am not satisfied with this is so.
Weighing those matters, and the relative importance of them, it seems to me that the serious nature of the offence involving, as it did, particular invasive conduct towards the child - that is, licking the child’s vaginal area, and therefore skin-on-skin contact in circumstances where the child was sleeping in your bed and you were trusted to care for the child and therefore protect the child and the child’s young age - weigh heavily against the finding of the circumstances are exceptional. I do, however, have regard to the matters in your favour, including your demonstrated remorse, your early plea of guilty, your lack of prior history, in determining this question. Ultimately, I am not satisfied with the combination of features result in a conclusion that exceptional circumstances are demonstrated…[26]
[24] G5, 26-28.
[25] G5, 28.
[26] G5, 29.
I note the reference by the judge to remorse. The genuineness of his remorse was questioned by the Minister’s representative during the Tribunal hearing. The applicant was asked whether he accepted that he was guilty of this offence. He said that he was guilty, but it did not happen the way that it was put to him by the police. He was asked to describe what happened. He said that the child was jumping up and down on the bed they were sharing and “flashing” at him. When asked to explain what this meant he said that she was lifting her top up and down. He said that he wanted her to stop her behaviour and said, “stop it or I’ll lick it”. When she did not stop jumping, he thrust his face forwards and put his tongue out and it encountered her body. He said that his conduct was “stupid”, but that he did not act out of sexual gratification. He denied that the girl was asleep when the physical contact occurred.
The Tribunal is required to accept the validity of a criminal conviction which serves as a jurisdictional foundation for these administrative proceedings.[27] It is of course a matter for the Tribunal to determine for itself the seriousness of the offending, but in doing so, the Tribunal should have regard to the Judge’s sentencing comments regarding the seriousness of the offence.
[27] HZCP v Minister for Immigration and Multicultural Affairs [2019] FCAFC 202; GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3246 at [36]; TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 at [118],
I have considered the applicant’s description of the incident. It is troubling that the applicant was unable to confront squarely his sexual impulses towards the child. I see no reason to qualify in any way the learned judge’s description as that of a person acting for sexual gratification. According to his evidence to the Tribunal, the Applicant treated the child in a manner that can only be described as woefully inappropriate and sexualised. If she was jumping on the bed, as opposed to sleeping in it, he could have ignored her behaviour or simply turned away.
His attempt to place some blame on the child (in “flashing” him) was misguided. However, it does not follow from his prevarication that he was lacking in remorse. He was clearly remorseful for his action but of the view that it happened in a slightly different way. He did not deny skin-on-skin contact.
The Tribunal proceeds, as it must, on the basis that the applicant committed the offence of indecent treatment of a child under 12, to which a plea of guilty was entered. He was justly convicted, and his behaviour should be assessed as very serious.
Regarding the charge of indecent and obscene exposure, for which he was arrested on 8 August 1990, he denied that he had deliberately exposed himself or that he was masturbating. The police notes of the incident record the following.
[The applicant was] standing next to the taxi shelter at the taxi rank at Liverpool Police station with 'his penis protruding from his fly in his pants masturbating himself. The victim in company with another female person then boarded a taxi and attended Liverpool Police Station and complained of the matter. Police attended a short time later and spoke to the defendant who was arrested and conveyed to Liverpool Police Station. At Liverpool Police Station the allegation was put to the defendant who admitted to the offence stating " I was drunk, I didn't see the girls there I didn’t mean to offend anyone”. The defendant was then searched and located in the defendants wallet was a plastic bag containing green vegetable matter. The defendant was questioned in relation to the vegetable matter and stated, “That’s mine for my own personal use.” The defendant further stated that he had purchased the drugs in the streets at Liverpool for $5.00 earlier in the night. The total weight of the drugs is 1.5 Grams. The defendant was then charged. [28]
[28] R5, 53, R6, 54.
The Applicant remembered only that the Liverpool Train station toilet was locked and then he relieved himself. He had no greater recall of this incident. He said that he was not in a good place at the time. He was young, drinking a lot, probably very drunk, and just trying to get home. I note that there is no history of indecent exposure in his criminal record, and this appears to have been an isolated incident. It could well be that he was simply relieving himself and that the girls were mistaken on the issue of masturbation. The act of public urination is of course socially unacceptable and reprehensible on its own, and may even have an overtly sexual connotation, depending on the circumstances. However, given that this incident occurred 32 years ago, and has not been repeated in kind, it attracts little weight in my overall assessment.
His very first criminal convictions (not wearing a helmet, minor possession) did not occur until 1989, almost 20 years after arriving in Australia.
It cannot be said that there is a pattern of escalating criminality. The offence for which his visa was cancelled is a solitary example of this kind of offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Paragraph 8.1(2)(b)
Under paragraph 8.1.2(1) the Tribunal is required to consider the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Under paragraph 8.1.2(2), in assessing the risk that may be posed by the applicant to the Australian community, the Tribunal must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The harm that would arise should the applicant engage in any further action of a similar kind involving young children is self-evident. The Tribunal is mindful of the corrosive harm to the community and to individuals associated with sexual offending of this nature. I note the accurate observation of Member Bellamy in GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3246 (GTPT) where she said:
70. The harm from rape and indecent assault against a child cannot be understated. It is uncontroversial that sexual abuse of a child typically causes immediate and long-term emotional and psychological harm to the victim, and that such harm can lead to a range of self-harming behaviour and unhealthy relationships throughout the victim’s life, and even the abuse of others. This all has a ripple effect in the community. A victim’s family members are often impacted, knowing their loved one has been seriously harmed. This kind of conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.
In assessing the likelihood of the applicant engaging in further criminal acts or other serious conduct, I am required to consider information and evidence on the risk of re-offending, including evidence of rehabilitation achieved by the time of the decision. There do not appear to be any relevant reports in the materials before the Tribunal relating to the risk of recidivism.
In terms of paragraph 8.1.2(2)(b), I am required to consider the likelihood of the applicant engaging in further offending.
However, apart from the incident in June 1999 referred to above, this is a solitary example of this kind of offending. The Applicant was sentenced on the basis that he had no relevant or significant criminal history. Although a sentence of imprisonment was imposed, it was suspended for all but 3 months. The judge considered that he was not in any significant position to determine the risk of reoffending. His Honour stated:
On the evidence before me, you have not previously been convicted of any offence related to a child and none since the commission of this offence. There is no basis upon which I would conclude based on this single episode that you present a particular risk or have a sexual attraction to children which would result in a particular risk to children. However, in the absence of material, it seems to me I cannot discount that. So in the end I am not in any significant position to determine precisely any risk of you reoffending, except to gauge that you have not committed such an offence previously. And, of course, you are now a mature man, age 51.[29]
[29] G5, 28.
To this may be added that his status as a non-citizen, with the associated risk of visa cancellation, has been brought home to him in these proceedings and by his prolonged detention in immigration detention (from January to November 2022). Indeed, since his conviction on 28 October 2021, he has spent more than 12 months in either prison or immigration detention. This should serve as a powerful deterrent for the protection of the Australian community.
Conclusion on PC1
PC1 weighs moderately against revocation of the mandatory cancellation.
Family Violence: PC2
There is some material before the Tribunal from which it may be inferred that the applicant has engaged in family violence. There is a police file note made on 4 November 2001 recording:
At 2.00pm the victim attended Cabramatta Police station with her mother. The victim informed police that she had been assaulted by the POI with whom she is in a de facto relationship.
Police obtained the victims details and got a statement of the incident. The victim told police that at 10.30am on the 03/11/2001 the POI slapped her across the face with the open palm of his left hand after an argument over food and money. The two continued to argue later on in the day, in which the POI has grabbed the victim by the hair with both hands and attempted to drag her outside. The POI has then headbutted the victim to the forehead.. After this incident the POI has left the premises to cool off. On the 04/11/2001 the victim and POI have continued to argue again, resulting in the victim leaving the premises.. The victim and POI have three children as a result of the relationship aged 4yrs, 3yrs and lyr. During the first incident the 3yr old and 1yr old were present. . The victim informed police that both she and the POI have a drug problem. The victim has previously used speed but has not used in 6 days, whilst the POI uses speed and marijuana. . Victim informed police that the POI has never assaulted her in the past but has often damaged property inside the house during arguments. . Both the victim and POI are currently unemployed. Victim informed police that there was no firearms on the premises and that the POI did not have a firearms licence. There was no physical signs of injury. The victim told police that she does not wish for police to take action in relation to the assault but wishes for police to take out an AVO on her behalf against the POI. The victim is now residing with her mother at……….[30]
[30] R5 30
When questioned about this incident, the applicant denied that he had hit, slapped or pushed his partner on the occasion in question. He denied that he had pulled her hair. He said that he had “escorted” her from the premises. The complainant told the police that this was the only occasion on which he had been physical with her.
She did not want there to be any follow up action for the assault. The Tribunal did not have the benefit of any sworn testimony from the complainant, but it suggests to me that there was something more happening than him simply “escorting” her to the door. There were children in the house. Unless she was seriously scared of him, and if he had not hit her before she had no reason to be, then the most credible explanation for her reporting the matter to the police in the company of her mother, is that her account was accurate. I do not find the applicant’s account of “escorting” her to the door to be credible. It is frankly hard to believe that the parties did not come to blows on this occasion. They were both drug users. There had been a build up to the row on 4 November.
I therefore find that he did engage in family violence on this occasion. However, this incident happened more than 20 years ago. There is no history of violence against the woman, and according to the complainant’s report to the police it was an isolated incident. I do not attach much if any weight to this report.
Conclusion on PC2
I consider that this consideration is neutral.
Best interests of minor children in Australia affected by the decision: PC3
The Tribunal has not identified any children who may be affected by a decision to remove the applicant from Australia.
I find that PC3 is neutral.
The expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
(emphasis added)
The Respondent contends, consistently with the Direction, that crimes of a sexual nature against children should be regarded as very serious, irrespective of the sentence imposed.
It is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against him or her in any particular case varies according to the seriousness of their offending.[31] Taking into account the serious nature of the offence of indecent dealing with a child under 12, I find that PC4 weighs firmly against him.
[31] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Other Considerations
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
This consideration has no application to this matter.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
As noted above, the applicant has lived in Australia for 50 years. He was one year old when he arrived from the United Kingdom.
There is no significant language or cultural barrier preventing him from returning to the United Kingdom. However, he has known no other country as his home other than Australia. I cannot discount the psychological impact of dislocating him to a foreign country at 52 years of age after a lifetime in Australia. The applicant suffers from some health problems and is presently on the Disability Support Pension because of a workplace injury which removed his capacity for full time employment. He will therefore depend heavily on the British social security system for support. The Tribunal has not been provided with any information relating to his eligibility for benefits in the United Kingdom, given his long residence in Australia. His reintegration will be all the more difficult given the nature of the offending for which his visa was cancelled. This may operate as a serious impediment in establishing himself and maintaining basic living standards.
I consider that OC2 weighs moderately in favour of revoking the mandatory cancellation decision.
Impact on victims: OC3
The Direction provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to this consideration, which is therefore neutral.
Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia: OC4.1
Paragraph 9.4.1 of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has three Australian children, but has no contact with them.
I noted above that the applicant’s first criminal conviction (minor possession) did not occur until some years after arriving in Australia, and until he was injured at work he was gainfully employed, as a forklift operator, in the construction industry and finally in a sawmill.
The applicant has provided references from some friends and employers.
·Mr VO, dated 21 February 2022;[32]
·Mr OO, 11 March 2022;[33]
·Mr AO, 25 May 2022;[34]
·Mrs LM, dated 12 June 2022;[35]
·Mrs TO, 13 August 2022.[36]
[32] G10, 44
[33] G11, 45.
[34] G12, 46.
[35] G13, 47.
[36] G14, 48.
Although the referees evince some understanding of the sexual offence with which he was charged, none appear to have confronted the reality that he was justly convicted. Therefore, the Tribunal must judge their comments through that lens. Two of the five references are written by women. Mrs TO, and Mrs LM.
Mrs TO said:
I consider [JDZP] to be a nice person, who is diligent and helpful, and is a positive and motivating influence on mv husband, I have also found him to be courteous and respectful towards others and someone I consider to be a good support towards [Mr OO] and myself as far as minding our kids for us whenever we’ve had to go out.
From what I’ve witnessed of [JDZP]'s character, it would seem most unlikely, in my personal opinion, that [JDZP] would have committed the 'alleged offending', as it is not in his nature to do anything that would violate the right's of another person let alone a child that would make them feel in any way uncomfortable or threatened. I therefore consider the 'allegation' to be nothing more than a total misrepresentation of his character.
[JDZP] has always been very good around both [Mr OO] and my boys and I have never had any issues in regards to him behaving in an inappropriate manner around them.
I believe [JDZP] should stay in Australia because besides being a loyal and devoted friend towards my husband, who's a diligent hard worker and a good tenant, he is also well liked and respected by both our boy's.[37]
[37] G14, 48.
Mrs LM said:
I am 52 years old, mother of three children, whom are all young adults now. I have worked with children most of my life be it in the Salvation Army church (…) as Sunday school teacher/youth leader and/or for the last 5 years in childcare as a diploma qualified educator. As such I have had quite a lot of child safety training both with the Salvation Army and Child safety services online courses. I have had to report on neglect and seen signs of abuse in children all of which I have reported to my supervisors.
I first met [JDZP] when he purchased a computer from my husband's shop back in 2009. [JDZP] was a good customer who always paid for his orders ahead of time. During the next few years, we became friends, and he would often come over for social occasions and we would often dog sit for him when he would go away on holiday. He treated his dog extremely well and held him in great affection.
I have never had any concerns about [JDZP] with my children growing up, I have never seen any signs that he was predatory or overly affectionate nor secretive to any of my children, my sons, or my daughter or any other children he has been around. Be it at the church activities or day-care children. They have never told me of anything but good things about [JDZP], they haven't ever not wanted to be around him or felt uncomfortable in his presence. They have never felt anything but safe in his presence.
[JDZP] is the type of man that will go out of his way to help anyone, he would give you the shirt off his back if he thought you needed it, ln the 2011 and 2013 floods that tore through our home and business [JDZP] was one of the first people on site to help both emotionally and practically for my husband and me. He has a strong moral code and to have these things said about a man that we hold in such high standing is wrong. [JDZP] is the type of man we need more of in Australia. To deport him over these false allocations [SIC] would be the crime.
Also, to advise him to plead guilty when he is not, is also criminal in my book to use fear of deportation to wrongly convict an innocent man because the council [SIC] don't think he will get past the charges, shows a lack of belief in our judicial system.[38]
[38] G13, 47.
The Tribunal did not have the benefit of hearing from any of the referees in sworn testimony. I attach little weight to the commentary on his prosecution or conviction, but the references do show that he is connected in some degree, and has a supportive group of friends, within the Australian community.
The applicant first arrived in Australia on 23 October 1970, and has not left the country since. He is a long-term resident of Australia. This fact alone does not protect a non-citizen from mandatory visa cancellation as shown by numerous Tribunal decisions.[39]
[39] McCutcheon and Minister for Home Affairs (Migration) [2019] AATA 932, per Groom SM; RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076, per Member Parker; Leau and Minister for Home Affairs (Migration) [2019] AATA 843, per Cowdroy DP; Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361, per Nikolic SM; Puni and Minister for Home Affairs (Migration) [2019] AATA 3943, per Nikolic SM. De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392, per Nikolic SM.
I recently surveyed a small subset of such decisions in Potae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3731, where I said:
In referring to such decisions, it is not suggested that the task of the decision-maker can be reduced to a matrix involving only years of residence on the one hand, and on the other, the frequency and seriousness of offending. A fuller understanding of each case would involve an examination of all the factors to which the Tribunal must have regard in seeking to arrive at the correct and preferable decision. But there are two points that emerge from this short review of decisions. First, as a matter of record, many who fail to have their visas restored after mandatory cancellation are long term residents; and secondly, none of this group had anything less than a well-developed if not egregious criminal record.
The present case bears some similarity to GTPT referred to above. In that case, the decision not to revoke the cancellation decision was set aside. The applicant had come to Australia from the United Kingdom at the age of seven and, as in the present case, had lived in Australia for 51 years. He first offended 34 years after arriving in Australia and committed no further offences after 2002. His degree of social integration was undoubtedly stronger than in the present case, but his sexual offending was also far more serious.
I accept that the applicant has responded to the community in being gainfully employed until his injury. I cannot discount the psychological impact that his removal from Australia might have on his friends and supporters.
The Respondent accepts this consideration weighs in favour of revocation of the cancellation decision, albeit not significantly.
I find that that OC4.1 weighs heavily in favour of revoking the cancellation decision.
(ii) Impact on Australian business interests: OC4.2
I find that there is no evidence of any impact on the sort of Australian business interests referred to in the Direction. This consideration has no application.
CONCLUSION
In weighing the primary and other considerations I note the following:
Factors in favour of non-revocation:
·Safety of the community (PC1) (moderate)
·Expectations of the community (PC4) (firmly)
Factors in favour of revocation:
·Impediment to resettlement (OC2) (moderate)
·Links to the Australian community (OC4.1) (heavy)
Factors that are not engaged:
·Non-refoulement (OC1)
·Family Violence (PC2)
·The best interests of minor children in Australia affected by the decision to remove (PC3)
·Victim impact (OC3)
·Impact on Australian business interests (OC4.2)
Two of the primary considerations weigh against the applicant, and two considerations weigh in his favour. The Direction states that in general primary considerations should generally be given greater weight than the other considerations. However, this is not a rule that applies in every case. It may be that other things being equal, it may be so, but other things are rarely equal, and in this case the combined weight of PC1 and PC 4, even considering his prevarications, do not outweigh countervailing considerations.
In light of his modest criminal record, the low prospect of recidivism, the impediments he faces if removed, and his ties to the Australian community, I consider that there is ‘another reason’ why the original decision not to revoke his visa cancellation should be set aside, even though he fails the character test.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister, dated 1 September 2022, not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of
........................................................................
Associate
Dated: 9 December 2022
Date(s) of hearing: 18 November 2022 Applicant: In person Solicitors for the Respondent: Matthew Hawker
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