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

[2020] AATA 174

Jeffery and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 174 (14 February 2020)

Division:GENERAL DIVISION

File Number:           2019/8158

Re:Dean Jeffery

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:14 February 2020

Place:Melbourne

The Tribunal sets aside the reviewable decision of 4 December 2019 and substitutes a decision that the mandatory cancellation of the applicant’s visa on 30 November 2018 is revoked.

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

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – reviewable decision set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Migration Regulations 1994 (Cth)
Sex Offenders Registration Act 2004 (Vic)
Sentencing Act 1991 (Vic)
Criminal Code Act 1995 (Cth)
Crimes Act 1958 (Vic)

CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

14 February 2020

INTRODUCTION

1. The applicant seeks review of a decision by a delegate of the Minister, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).

2. The hearing was held in Melbourne on 11 and 12 February 2020. The applicant was represented by Ms Skvortsova of counsel, instructed by Carina Ford Immigration Lawyers. The Minister was represented by Mr Orchard from Sparke Helmore Lawyers.

3. For the reasons that follow, the Tribunal sets aside the reviewable decision of 4 December 2019 and substitutes a decision that the mandatory cancellation of the applicant’s visa on 30 November 2018 is revoked.

   BACKGROUND

4. The applicant is a 45 year old citizen of New Zealand who first arrived in Australia in March 1994 at the age of 19. He has departed and returned to Australia on approximately 14 occasions since.[1]

5. The applicant has two children in Australia with a former partner. His eldest son is an adult, while his youngest son turns 17 in 2020.[2]

6. On 30 November 2018 the applicant’s visa was cancelled on character grounds by a delegate of the Minister.[3] This followed the applicant’s convictions of sexually-based offending against a child.[4] At the time of visa cancellation the applicant was serving a fulltime sentence of imprisonment.

7. The applicant was invited to make representations to have the visa cancellation revoked and did so in December 2018[5] and June 2019.[6]

8. In June 2019 the applicant was released from prison and taken into immigration detention where he presently remains.[7]

9. On 4 December 2019, after considering the applicant’s revocation request, a delegate of the Minister decided not to revoke the visa cancellation decision.[8]

10. On 10 December 2019 the applicant applied to the Tribunal for review of the non-revocation decision.[9]

11. Pursuant to s 500(6L) of the Act the Tribunal must discharge its review function in respect of this application by 26 February 2020.

    LEGISLATIVE FRAMEWORK

12. Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501 of the Act.

13. Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) to introduce s 501(3A) and 501(6)(e), amongst other amendments. The Explanatory Memorandum for the Amendment Act states:

    New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.

    For the purposes of new paragraph 501(6)(e) of the Migration Act, the term “sexually based offences involving a child” would include, but would not be limited to, offences such as child sexual abuse, indecent dealings with a child, possession or distribution of child pornography, internet grooming, and other non-contact carriage services offences. This amendment is intended to apply irrespective of the level of penalty or orders made in relation to the offence. 

    The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test. Currently, such offences may be considered under subsection 501(6) of the Migration Act when deciding whether a person fails the character test, but this amendment removes the subjectivity from this assessment in cases where the person does not fail the substantial criminal record test in subsection 501(7) because a sentence of imprisonment of at least 12 months has not been imposed.[10]

    (emphasis added)

14. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a full-time sentence of imprisonment.

15. The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:

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

    …

    (e)a court in Australia or a foreign country has:

    (i) convicted the person of one or more sexually based         offences involving a child; or

    …

16. Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).

17. Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.

    Direction No. 79

18. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[1]

    [1] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.

19. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’

20. By way of general guidance, cl 6.2 of the Direction provides that:

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2) …

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…cancel a non-citizen’s visa under section 501…The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…

21. The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply relevant considerations:

    6.3      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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

22. Clause 7(1)(a) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at clause 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:

    a.    Protection of the Australian community from criminal or other serious     conduct;

    b.    The best interests of minor children in Australia; and

    c.    Expectations of the Australian community.

23. Clause 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:

    a.    International non-refoulement obligations;

    b.    Strength, nature and duration of ties

    c.    Impact on Australian business interests;

    d.    Impact on victims;

    e.    Extent of impediments if removed.

24. Clause 8(1) of the Direction explains that the reason why there are differing considerations under Parts A, B and C of the Direction, is because non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas visa applicants should have no expectation that a visa application will be approved.

25. Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

26. Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’

27. Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’

28. Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:

    [57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…

    …

    [78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

29. Annex A of the Direction (section 2 at paragraph 7) states that a person will not pass the character test if a court in Australia or a foreign country has convicted them of one or more sexual offences involving a child. These include but are not limited to:

    a.    Child sexual abuse;

    b.    Indecent dealings with a child;

    c.    Possession or distribution of child pornography;

    d.    Internet grooming; and

    e.    Other non-contract carriage service offences.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

30. In July 2018 the applicant was convicted of three charges of ‘Indecent act with child Under 16.’[11] Because of the effect of 501(6)(e)(i) of the Act, the applicant does not pass the character test.

    ISSUE TO BE RESOLVED

31. It follows that the discretion at s 501CA(4)(b)(i) of the Act to revoke the visa cancellation on the basis that the applicant passes the character test is not relevant. It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane:[12]

    ‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’

    EVIDENCE BEFORE THE TRIBUNAL

32. The following documents were taken into evidence:

    (a)G-documents numbering 222 pages;[13]

    (b)Supplementary G-documents numbering 96 pages;[14]

    (c)Applicant’s statement dated 22 January 2020;[15]

    (d)Report of clinical and forensic psychologist Dr A. Chan dated 20 January 2020;[16]

    (e)Statement of the applicant’s fiancée dated 22 January 2020;[17]

    (f)Statutory Declaration of the applicant’s eldest son dated 22 January 2020;[18] and

    (g)Statutory Declaration of the applicant’s youngest son dated 22 January 2020.[19]

33. The Tribunal heard oral evidence from the applicant, his fiancée, eldest son and Dr Chan.

    National Police Certificate

34. The applicant does not dispute the information in his Nationally Coordinated Criminal History Check dated 18 December 2018,[20] which the Tribunal accepts is accurate.

    Sentencing Remarks

35. The Tribunal notes the sentencing remarks in evidence from the Melbourne Magistrates’ Court from July 2018 (“2018 sentencing remarks”),[21] which are discussed later in these reasons.

    Medical Evidence

36. A number of medical reports are in evidence:

    (a)Report of consultant forensic psychologist Dr Karla Lopez (25 September 2017).[22] Dr Lopez highlighted a number of psychological vulnerability factors leading to the applicant’s sexual offending, namely, emotional dysregulation and preoccupied attachment style. Dr Lopez opined that at the time of his offending, the applicant was using sexual fantasy and behaviour to cope with anxiety, which he internalised rather than dealing with constructively. She concluded that his inappropriate coping led to significant cognitive distortions around interpreting the victim’s behaviour. Over time this thinking led to the applicant lowering his inhibitions relating to sexual contact with the child. Once he acted on this distorted thinking, he recognised the damaging effects of his behaviour. Key aspects of Dr Lopez’s report are summarised as follows:

    (i)The applicant’s offending was a ‘single episode…occurring over a period of a day, thus lacking elements of chronicity, diversity and escalation;’

    (ii)The applicant’s account of the offences was consistent with official reports. He  had ‘not attempted to minimise or deny responsibility for his actions;’

    (iii)The applicant had sought offence specific treatment of his own volition, which was considered a positive indicator of his rehabilitative prospects;

    (iv)The applicant had gained insights during counselling into his offending behaviour. He recognised thinking errors, unhealthy fantasy, and using sex as a coping strategy as precursors to his offending. These insights will assist him in deploying relapse prevention strategies. Furthermore he had begun to explore historical issues which may have impacted on his ability to establish long-term intimate adult relationships which was ‘very positive;’

    (v)The applicant lacks sexual deviance and antisocial orientation, which are considered the two best predictors of sexual recidivism. He also does not meet the criteria for existing paraphilias. The applicant’s psychosexual history reflects ‘an ongoing capacity to engage in age-appropriate intimate relationships with adult females’, and he has ‘consistently evidenced sound capacity to establish intimate and non-intimate relationships;’

    (vi)The applicant was not found to be suffering ‘any significant symptomology’ relating to depression, anxiety and stress, nor was there any evidence of a formal diagnosis of past or present mental illness;

    (vii)No problems with substance abuse, homicidal or suicidal ideation were noted;

    (viii)There was no evidence of ‘problems with employment or non-sexual criminality;’

    (ix)Following application of the ‘Static-99 Risk Assessment,’ the applicant was considered to fall in the ‘low risk category,’ representing:

    ‘about 6% likelihood of being reconvicted of a new sexual offence within 5 years post release and a 7% likelihood of being reconvicted of a new sexual offence within 15 years of time at risk.’

    (x)Five factors thought to contribute to reducing the risk of recidivism were identified: strong social support; help-seeking behaviour and treatment engagement; demonstrated ability to instigate constructive coping strategies; knowledge of appropriate relapse prevention strategies; and pro-social plans and ability to carry them out; and

    (xi)Two factors were identified as having the potential to contribute to an increased risk of recidivism: ‘Re-emergence of inappropriate coping’; and ‘Failure to deal with relationship difficulties particularly as they may relate to trauma (from child abuse).’

    (b)Letter from Dr Lopez dated 12 April 2018.[23] Dr Lopez had seen the applicant 11 times and noted his consistent attendance and motivated approach to counselling. She considered the applicant had developed a ‘sound insight into the precursors to his offending,’ and there had been ‘no indications of increased risk of reoffending even during times of heightened stress.’ Dr Lopez opined that he ‘has been able to deal constructively with challenges arising in his life,’ which were ‘positive indicators’ of his ‘commitment to better manage thoughts, feelings and behaviour which previously put him at risk of offending.’

    (c)Reports by clinical psychologist Dr Annabel Chan dated August 2018,[24] June 2019,[25] and 20 January 2020.[26] The first two reports summarise the applicant’s therapy progress following counselling sessions with Dr Chan in 2018, and an hour-long video-link interview in mid-June 2019, as follows:

    (i)The applicant had worked hard to maximise protective factors, including by developing an open and supportive relationship with his fiancée, maintaining stable employment prior to imprisonment, engaging in mindful reflections on his role and boundaries in the context of his sexual and emotional identity, and implementing healthy coping mechanisms;

    (ii)The applicant had reflected on his past offending with remorse and exhibited increased understanding of the reasons for his conduct;

    (iii)There was no evidence of mental state deterioration, reflecting the applicant’s increased resilience, capacity to problem solve, and to regulate his emotions;

    (iv)The applicant constituted a ‘low risk of reoffending’ and had improved his insight, emotional regulation, understanding of sexual boundaries, and problem-solving. Dr Chan concluded that recidivism risk was:

    ‘…much lower than that of the average sexual offender. He has few risk factors and many protective markers including stable mental state, long-term positive engagement in psychological treatment, increase security and is attachment style, strong and stable intimate relationship, no evidence suggestive of deviant sexual interests, and good insight into his mental health triggers. Correspondingly, this also means the level of supervision and resources required to contain his risk of sexual recidivism is low.

    Mr Jeffery’s reported and observed symptomology do not meet the diagnostic criteria for any major mental illness…past emotional difficulties have led him to boundary transgressions when he felt unable to regulate his emotional needs and distress. His resilience and self-regulation have been tested during his incarceration, and it is a testament to the progress he is achieved through his psychotherapy sessions as well is the strength of his bonds with his loved ones that his mental health has not suffered significant deterioration over the past nine months.

    … The progress made…since his offending …is unlikely to have been possible without the emotional support he received from his family and partner. His deportation will mean the loss of all his protective factors. That is, the very things that are keeping him at low risk of recidivism and psychological harm are also the very things he is likely to lose. Hence, deterioration in his mental health would be expected. His teenage sons are…[at]…a developmental stage where having a father figure is especially important in guiding their path into adulthood…[He]…is likely to struggle most with witnessing the resultant distress…of his sons and partner.’

    (d)Dr Chan’s January 2020 report updates her earlier assessments of the applicant’s risk of recidivism.  She concludes on pages 6 and 7 of her report:

    ‘In reviewing Mr Jeffery’s current risk factors using the same SPJ assessment tool…there is no evidence to suggest an increase in any of the risk domains. In fact, given his resilience and proactive help-seeking behaviours have remained high in face (sic) significant stressors facing deportation and isolation (sic), Mr Jeffery’s risk of future sexual offending remains low and is likely lower than before. That is, his risk is much lower than that of the average sexual offender. He has minimal risk factors and many protective markers including increased resilience and insight, long-term positive engagement in psychological treatment, increased security in his attachment style, strong and stable intimate relationship, and no evidence suggesting of deviant sexual interests. Correspondingly, this also means the level of supervision and resources required to contain his risk of sexual recidivism is low.

    Is also known in the sexual risk assessment literature that the risk of perpetuating future sexual harm decreases significantly in samples of sexual offenders as they lived offence free in the community for five years or more. Unfortunately, Mr Jeffery has not been allowed to live in the community since his sentence; however, with a low level of interventions to match his low level of recidivism, Mr Jeffery is likely to thrive offence-free in the community when given the opportunity.’

1. In her oral evidence Dr Chan said she had been involved in the applicant’s case since July 2018 after undertaking a handover with Dr Lopez. Their last session had been on 10 February 2020. Dr Chan explained the methodologies used to assess the applicant’s risk of reoffending. Notwithstanding there being only three available categories of risk (‘low, moderate and high’), Dr Chan opined that the applicant’s risk was ‘lower than the average sex offender’ and ‘on the lower end of low.’ She said the applicant’s approach to counselling and rehabilitation remains proactive and motivated: ‘he works hard in therapy and talks about things that are difficult for him.’

2. Dr Chan considered the protective factors mitigating the applicant’s risk of reoffending had improved over time. She had no concerns about him being around children and thought his low risk of recidivism would be supported by further counselling and engagement with obligations under the Sex Offenders Registration Act 2004 (Vic) (“SORA”). Her perception of risk would be different if there was a ‘perfect storm’ of stressors commensurate with those at the time of his offending, but she considered it highly unlikely this situation would repeat. Dr Chan thought the applicant was now much better placed to respond to any future stressors because work, therapy, a supportive partner, and other protective factors were ‘buffers preventing reoccurrence.’

3. When asked about a discrepancy between the applicant’s and victim’s accounts in a police report, Dr Chan said it was ‘very rare there isn’t a discrepancy.’ She had taken account of the relevant record and stated it did not change her assessment. Moreover, she had never noted the applicant trying to apportion blame on the victim, but had consistently accepted responsibility for his actions. 

   Applicant’s evidence

4. The applicant’s submissions focussed on remorse for his offending, rehabilitative progress, the interests of his sons, strength of his connection to Australia, protective factors, and impediments to repatriation.  His oral evidence is summarised as follows:

   (a)He adopted as ‘true and correct’ two earlier statements in the G-documents[27] and his most recent statement dated 22 January 2020;[28]

   (b)He spoke about his background in New Zealand, including the completion of an apprenticeship before moving to Australia at the age of 19. His mother and sister still live in New Zealand, but both are in medical care. His father also lives in New Zealand, but they do not share a close relationship. The applicant submits he cannot rely on any family support if returned to New Zealand;

   (c)The applicant contextualised his offending as occurring during a period when he was experiencing several concurrent stressors affecting his mental health. These included a severed patella tendon requiring surgery, which caused his employment to be terminated. He was uncertain at the time if he could continue working and was under financial stress. The applicant said he was also dealing with a significant deterioration in his mother’s health in New Zealand requiring him to travel frequently to see her. He found it difficult to balance his obligations to his mother and to his children in Australia. The applicant also referred to an incident that occurred when he was eight or nine years of age involving an older person, which had persistently intruded into his thinking, but which he had not previously sought counselling for. In his oral evidence, the applicant described his mental state at the time of his offending as ‘quite bad;’

   (d)The applicant recalled telling the mother of his victim about his actions within half an hour of the event that constituted ‘Charge 3.’[29] On the next day he contacted a counsellor and reported himself to the Department of Human Services, who called police. He made admissions to police when interviewed. The applicant agreed that a record in evidence accurately described what he had told police.[30] When asked if he had sought to attribute blame on the victim for any of his conduct, the applicant stated ‘No.’ He agreed the mother of the victim was likely to have reported the matter to police, but his primary motivation in self-reporting was to be held accountable. When asked if any of his offending had occurred at the victim’s instigation, the applicant responded: ‘No.’ He was unequivocal about ‘crossing a line’ and that a child under 16 could never give consent to his offending conduct;

   (e)When asked about his ‘Contravene a conduct condition of bail’ conviction, the applicant explained that his residential lease was due to expire and he was in the process of doing an end-of-lease clean prior to moving in with his fiancée. He claimed to have advised his lawyer about the impending move but claimed the notification email to authorities was not delivered. He nevertheless accepted culpability for this offence;

   (f)When asked what efforts he had made to address the causes of his offending, the applicant said he sought professional help from Dr Lopez to ‘understand why I did it.’ While imprisoned he asked corrections staff about sexual offending courses but none were available at the time. He nevertheless worked with a prison men’s group on ‘different ways of dealing with stress’ and completed a drug and alcohol course. After release from prison he engaged in counselling with Dr Chan. The applicant described his relationship with Dr Chan as ‘very trusting.’ He was comfortable talking with her because she ‘knows the whole story.’ He would continue to prioritise the therapeutic relationship with Dr Chan if released and would also undertake any obligations arising from his CCO and the SORA;

   (g)In relation to recidivism risk, the applicant said he was determined to remain law-abiding. He did not believe the circumstances existing during his offending would ever reoccur. He agreed there would be stressors upon release, including his mother’s continuing ill-health and financial pressures, but he was now better prepared to respond. When asked why he would continue with counselling if he did not constitute a risk, the applicant said it was because of the seriousness of what he had done;

   (h)The applicant spoke about his relationship with his two sons and their mother, from whom he separated in approximately 2006. They had since shared parenting responsibilities on a 55:45 basis (in his former partner’s favour). The applicant said he was very involved in his children’s lives, contributed financially to their needs, and was very proud of their achievements. He was open with his children about his convictions, and was amazed and humbled by their continuing support. If returned to New Zealand the applicant said he would ‘try and find a way’ to maintain involvement in his children lives, but that would be a poor alternative to the previous close and easy access they enjoyed;   

   (i)The applicant said that approximately two to three weeks after his relationship with his fiancée commenced, he told her everything about his offending. He did not expect the relationship to continue after that disclosure but it flourished and they remain very much in love. He referred to his fiancée as ‘an incredible support.’ She attended psychological counselling with him and they talked every day by telephone about their future plans. The applicant said he did not have a lot to do with his fiancée’s children from a previous relationship, who lived overseas with their father;

   (j)The applicant said he understood there was work available to him from a former employer in Australia upon release. Given his years of work experience, he did not foresee any difficulties in getting a job. He would apply future earnings to catching up with child support payments to his former partner, repay friends who helped fund his legal costs, and continue with one-on-one counselling with Dr Chan. He intended to move in with his fiancée, continue with their house renovation, and help his fiancée set up a small business;

   (k)The applicant said that after more than 25 years in Australia his life was here. He had worked consistently and paid taxes. He referred to volunteer work and other charitable and sporting contributions he had made. In contrast to a very close circle of family, friends and an established employment network in Australia, he did not have comparable links in New Zealand. He would have trouble funding his resettlement if removed, including re-establishing his tools of trade.

   Evidence of applicant’s fiancée

5. The witness adopted her statement dated 22 January 2020. She has two minor children with a former partner, who she separated from in 2012. The children live overseas with her former partner under a mutual agreement, but will return to Australia later this year. Custody of the children will then be shared on a 50:50 basis. The applicant does not play a parental role for her children and she does not see him playing such a role in the future.

6. The witness said she had known the applicant for 18 years and they have been in a romantic relationship since December 2017. They lived together prior to the applicant’s imprisonment and he had shared the details of his offending with her. She has visited the applicant regularly in prison and immigration detention and they ‘talk for hours’ on the telephone each day. She is confident the applicant will never reoffend.

7. The witness said she and the applicant decided to marry in late 2018 but their plans were put on hold due to his current situation. She would help the applicant prioritise rehabilitative requirements and conditional liberty provisions upon release. By way of example, due to the applicant’s obligations under the SORA, they had discussed how best to manage their living arrangements on those occasions when her children reside with her after returning to Australia. That would likely result in the applicant renting nearby and only living with her during those weeks that her children are residing with their father.

8. If the applicant was returned to New Zealand, the witness said it would be ‘very damaging’ to their relationship. She is an Australian permanent resident and will soon sit her citizenship test. Later in 2020 she will have 50% custody of her children with her former partner, who will then be Australian-based. Under such circumstances, relocating to New Zealand to be with the applicant would be ‘very difficult’ and was not a realistic prospect.

   Evidence of applicant’s eldest son

9. The witness adopted his statement dated 22 January 2020 as true and correct.[31] He reflected on the continuing closeness of the relationship with his father, who had openly shared the details of his offending. He said the applicant is embarrassed and remorseful for his conduct and determined to ‘be a better person.’

10. The witness said current circumstances have taken an emotional and financial toll on the family. His mother now ‘struggles to fund certain things’ in the absence of a financial contribution from the applicant. The witness is concerned that his younger brother, who is currently 16, receives less guidance from the applicant than previously.

11. If the applicant is returned to New Zealand, the witness said he would find it very hard to fund flights and, because of commitments in Australia, could probably only arrange to visit once or twice a year. His younger brother could not afford to fund flights without assistance. Both considered maintaining the relationship with the applicant by telephone as a poor alternative.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community from criminal or other serious conduct

12. Clause 13.1 of the Direction states:

    (1)  When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    (2)  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.

13. Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:

    a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.

    b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    f)     The cumulative effect of repeated offending;

    g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

    Tribunal consideration: The nature and seriousness of the conduct

14. The Tribunal has considered the 2018 sentencing remarks.[32] Her Honour sentenced the applicant as a ‘serious sexual offender,’ imposing a total effective sentence of eight months imprisonment (concurrent).[33] An 18-month CCO was ordered upon release and the applicant must complete the Sex Offender’s Program.[34] By reason of his convictions and sentencing, the applicant became a registered sex offender under the SORA, subjecting him to certain obligations for a period of eight years.[35]

15. The applicant accepts his offending against a child is serious and submits:

    (a)He has no prior history of criminal offences;

    (b)Significant weight was placed during sentencing on the totality of the applicant’s circumstances, which included self-reporting his criminal conduct, cooperating with police, seeking counselling, and entering a guilty plea at the first opportunity;

    (c)The matter was deemed appropriate to be dealt with by the Magistrates’ Court of Victoria, rather than the superior County Court of Victoria, reflecting the less serious nature of the applicant’s offending; and

    (d)The applicant was sentenced to eight months imprisonment in circumstances where the Magistrate noted the potential for a ‘standard’ sentence in the County Court for similar offending was four years. Moreover, it is contended that the sentence imposed ‘evidently did not reflect any risk that he posed to the community at large…[but]…was imposed as a way to denounce his conduct’.[36]

16. The respondent’s submissions can be summarised as follows:

    (a)The sentencing Judge described the offence as ‘serious.’  Clause 13.1.1(1)(a) of the Direction makes plain that sexual crimes are viewed very seriously;

    (b)Clause 13.1.1(1)(b) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. Whilst the applicant was convicted of a sexually based offence, his offending must also be seen in the context of the victim resisting the applicant’s advances;

    (c)Clause 13.1.1(1)(c) of the Direction makes plain that crimes committed against vulnerable members of the community are serious. A child under the age of consent, and particularly a nine-year-old girl, is ‘vulnerable;’ and

    (d)The applicant has been sentenced to terms of imprisonment for his offending as a first-time offender, reflecting the objective seriousness of his crime. Further, the sentencing Judge sentenced the applicant as a ‘serious sexual offender’ and placed him on the Sex Offender Register for a period of eight years.

    Tribunal findings: The nature and seriousness of the conduct

17. The applicant’s offending is objectively serious. That follows from the sexual nature of his crime against a child, who is plainly a vulnerable member of the community. Moreover, the Court’s disposition to award sentences of imprisonment, despite the applicant not having a prior criminal history, reinforces the seriousness of his conduct.

    Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

18. Clause 13.1.2 of the Direction states in part:

    (1)In considering the risk to the Australian community, decision-makers 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 available information and           evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

19. The Australian community accepts some risk in relation to the conduct of non-citizens, depending on its seriousness, and expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.  

20. In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage, at [111], related to unacceptable risk:

    An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

    (footnote omitted)

21. In relation to assessing whether an applicant represents an unacceptable risk of harm, the Tribunal notes the Full Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR at [493], that neither the ordinary meaning of the term ‘real risk,’ nor any requirement of the law, required that the term be assessed solely on a quantitative basis. Their Honours held that when assessed in a qualitative sense, a real risk is one that ‘is not remote, far-fetched or fanciful.’ It follows that there is no inconsistency in finding that a risk can be real, despite the probability of it occurring being quantitatively low or minimal.

1. In the 2018 sentencing remarks, Her Honour stated inter alia:

   ‘You I think were 42; she was nine…You didn’t deny the offending, albeit, the record of interview indicates your view that much of the offending occurred at the instigation of this nine-year-old girl and I find that rather worrying. I accept that you’ve had counselling and you’re commended for doing so, and you also expressed remorse.

   I take into account numerous matters on your behalf, your admissions to police as I said with that caveat that you are of the belief the nine-year-old had instigated the offending, the pleas of guilty which seem to have been entered at the earliest opportunity, acceptance of responsibility and remorse, no criminal history. You’re sentenced as a person of previous good character. You’ve got a good work history. You have taken those steps to have counselling, and though there seems to be a bit of a dispute as to the risk of reoffending, it would seem that you are not a risk of an extreme nature.

   …

   All in all though, you have done what’s in your power to address the underlying issues.’[37]

2. The applicant contextualised his offending as occurring while he was experiencing multiple concurrent stressors arising from his mother’s illness, a serious leg injury, work and financial pressures. He has expressed remorse in written and oral submissions for causing such ‘pain, heartache and confusion’, for which he was ‘deeply ashamed’, stating it would: ‘resonate with me for the rest of my life’.

3. In relation to recidivism risk, the applicant states he now better understands the reasons for his offending and has learned strategies through counselling to ensure there is no repeat. He submits in his 2018 Personal Circumstances Form (“PCF”):

   ‘I will not be reoffending. I immediately took responsibility for my offending and worked with a clinical psycholigist on a fortnightly basis over the past 18 months… I’m aware of the emotional attachments I opened up and engaged in witch deluded my perception.

   I do not want to reoffend. There is nothing I like about what I did. It is the biggest regret of my life. I am paying for my actions in so many ways.

   I have worked with a clinical psycoligist for the past 18 months. A part of the work I did was about re-engaging with friends and community. The ingagment that took place involved connecting with friends and participating in the activities I enjoy (mountain biking, yoga, surfing, bushwalking) and maintaining my connection with my children and family. We where currently working on relationships.’[38]

   (Errors in original)

4. It is submitted on the applicant’s behalf that:

   (a)He has been assessed on five occasions as constituting ‘a low risk of reoffending’, which ‘appears to have reduced further’ in the most recent report by Dr Chan.[39] In her closing submissions Ms Skvortsova recounted the applicant’s proactive approach to build resilience through counselling and ensure he can better cope with future stressors. Ms Skvortsova contended the applicant’s actions demonstrated he is ‘in it for the long haul, not just a phone call’;

   (b)A forensic psychologist has highlighted multiple protective factors preventing recidivism, which is further strengthened by the applicant’s reporting obligations under the SORA and the Specialised Offender Assessment & Treatment Service (“SOATS”) training he would be required to undertake upon release; and

   (c)The applicant poses no appreciable risk to the Australian community.[40]

5. The respondent’s submissions regarding risk can be summarised as follows:

   (a)The nature of harm if the applicant were to reoffend is serious and could involve physical and psychological harm to members of the Australian community;

   (b)Based on Dr Lopez’s assessment about the statistical probability of the applicant being convicted for a new sexual offence during the next 15 years, it cannot be said there is no risk he will reoffend;

   (c)Applying Principle 6.3(4) and cl 13.1.2(1) of the Direction, the seriousness of the potential harm that would be caused should the sexual offence be repeated is so serious that any risk of similar conduct in the future is unacceptable;

   (d)Despite the applicant’s claimed remorse, his suggestion during the police interview that the victim instigated the offending conduct, demonstrates a concerning lack of insight (which was also of concern to the sentencing judge). Mr Orchard said the applicant’s submissions should therefore be treated with skepticism;

   (e)The applicant is likely to experience further stressors if released, including his mother’s continuing ill health and financial pressures. Under such circumstances the Tribunal cannot be satisfied he won’t reoffend; and

   (f)This primary consideration weighs very heavily against revoking the cancellation of the applicant’s visa.

6. In relation to rehabilitation, the Tribunal notes two certificates in evidence regarding the applicant’s completion of a ‘6 Hour AOD & Stress Management Program’ in April 2019, and a ‘Release Related Harm Reduction Program’ in May 2019.[41] The Tribunal also notes evidence about the applicant’s work as a welder and in the maintenance section while imprisoned.[42] Two reports dated November and December 2018, show he tested negative for illicit substances.[43]

   Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

7. The Tribunal finds:

   (a)The applicant has not been previously convicted of any criminal offence. The criminal conduct for which he was convicted occurred on a single day;

   (b)At the time of his offending the applicant was experiencing concurrent personal stressors. The Tribunal accepts Dr Chan’s assessment that he internalised much of the anxiety arising from those stressors rather than dealing with it constructively, which was contextually relevant to his offending;

   (c)In the aftermath of his offending, the applicant took steps to accept responsibility for his conduct, undertook counselling while on bail, pleaded guilty at the first opportunity, was compliant during imprisonment, and undertook some rehabilitative courses;

   (d)The applicant conveys persuasive remorse and unconditional acceptance of the harm his actions have caused. His evidence is strongly indicative of someone determined never to repeat their offending;

   (e)The Tribunal accepts from the expert evidence that the applicant has obtained new insights through a motivated approach to counselling, and adopted more effective strategies to deal with future stressors. Dr Chan’s evidence is that the applicant only scored half of a risk factor in the 20-factor assessment instrument she utilised. She has observed the applicant using the coping mechanisms learned through therapy in his daily life. He actively sought her help by contacting her for counselling while experience high stress in immigration detention; and

   (f)Protective factors highlighted by the expert evidence are persuasive, including a supportive current partner, two loving children, genuine prospects of employment, availability of stable accommodation, and the persistent reminder of reporting obligations under the SORA until 2025. The Tribunal accepts there is a qualitative difference in the supports available to the applicant now, compared to those existing at the time of his offending. The evidence of his fiancée and eldest son is that they are determined to shape their lives around the applicant’s needs and obligations upon release.

8. The Tribunal accepts Mr Orchard’s submission that if the applicant were to reoffend, serious harm may result. But on the evidence, the likelihood of him reoffending is low to the point of remoteness. The Tribunal considers it unlikely the applicant will find himself in contextually-similar circumstances to those existing at the time of his offending. Even if he did, the Tribunal accepts the psychological evidence that he is now better able to respond appropriately and avoid a repeat of his past distorted thinking.

9. The applicant’s offending is undoubtedly serious but based on the totality of the circumstances in this matter, he does not constitute an unacceptable risk. While this primary consideration weighs against revocation, it does so only moderately.

   Tribunal consideration: Best interests of minor children in Australia

10. Clause 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory cancellation decision is expected to be made. It is not required that the applicant have a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision under review should be given individual consideration, to the extent their interests may differ.

11. In considering the best interests of the child, the Direction requires the following factors at cl 13.2(4) to be considered where relevant:

    (a)The nature and duration of the relationship between the child and the non-citizen. 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 (including whether an existing Court order restricts contact);

    (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)The impact of the non-citizen'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 non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

    (e)Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

12. The applicant has one adult son and a younger son who turns 17 in 2020. Prior to imprisonment and immigration detention, he shared custody of his youngest son with his former partner and paid approximately $200 monthly in child support. The evidence discloses that the applicant has played and continues to play an active paternal role in both his sons’ lives. The younger son submits in his statement that he 'would be absolutely crushed' if his father is repatriated to New Zealand. The evidence of the applicant’s former partner is that both children 'idolise' and 'have the greatest respect’ for their father. She considers their younger son’s development may be inhibited if the applicant is unable to remain in Australia.

13. The applicant’s fiancée has two minor children and shares custody with her former partner. Her former partner and both children have lived overseas in recent years. The applicant has no parental role for her children and will only reside with her when her children are living with their father. The interests of these children are not enlivened within the meaning of the Direction and are not considered further.

14. The respondent submits in relation to this primary consideration that less weight should be given to this consideration in circumstances where the applicant’s younger son turns 18 on 28 March 2021. It is further submitted that the children’s mother fulfils the primary parental role, and there is no evidence the applicant would be unable to maintain contact with his younger son in other ways, such as by telephone, electronic and other digital means. The respondent also submits that the younger sons work aspirations may see him living away from Victoria in the future, which the Tribunal found speculative.

    Tribunal findings: Best interests of minor children in Australia

15. The Tribunal is satisfied that the applicant continues to play a prominent parental role for his younger son and they enjoy a close and supportive relationship. He is likely to continue playing that role if allowed to remain in Australia, notwithstanding the relatively limited time until his younger son turns 18.

16. The applicant’s repatriation to New Zealand would have an adverse emotional effect on his younger son. That is not to say they could not maintain contact in other ways, but those are lesser alternatives to the easy and frequent access that has previously characterised their relationship.

17. The Tribunal finds that revoking the mandatory cancellation of the applicant’s visa is in the best interests of his younger son, but given his approaching adulthood, this primary consideration weighs only moderately in favour of revocation.

    Tribunal consideration: Expectations of the Australian community

18. Clause 13.3 of the Direction states:

    ‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

19. In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to a different part of the previous Direction 65 (Part B) relating to visa refusal, the clause is in identical wording as cl 13.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[44] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[45] His Honour summarised the community’s expectations at [101] and [103]:

    101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.

    …

    103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...

20. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[46] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations,’ which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[47]

21. It is submitted on the applicant’s behalf that ‘the Australian community would expect the discretion be exercised in favour of revocation’.[48] In the alternative it is submitted that if the Tribunal finds the expectations of the Australian community weigh against revocation, ‘the weight that ought to be attributed to this consideration – given the other considerations that arise in this matter (including the assessment of reoffending) – is minimal.’[49]

22. The respondent submits that the Australian community would expect that the applicant should not hold a visa on account of the serious crimes he has committed.

    Tribunal findings: Expectations of the Australian community

23. Having lived in Australia for almost all of his adult life, the Australian community is likely to have a somewhat higher tolerance of the applicant’s isolated criminal conduct than would be the case for someone within a more extensive criminal history or who had made less of a community contribution. The applicant has a strong work ethic and has made a positive contribution through employment and other avenues. In relation to his offending he conceded his wrongdoing, sought early counselling, pleaded guilty at the first opportunity, has been a compliant prisoner, and conveys a persuasive commitment to living a law-abiding life. His offending alone, as contextualised by the expert evidence, and occurring as it did on a single day, cannot be regarded as determinative or decisive. The community is likely, as the Tribunal did, to find the expert medical evidence persuasive, including in relation to the ‘low’ risk of recidivism and available protective factors.

24. The serious nature of the applicant’s sexual offending against a child weighs against revocation. The specific circumstances of this case, however, are such that this primary consideration only carries moderate weight.

    OTHER CONSIDERATIONS

    Tribunal consideration: International non-refoulement obligations

25. The applicant did not raise any claims, nor does the evidence disclose that Australia’s non-refoulement obligations are enlivened as a relevant consideration in this matter.

    Tribunal consideration: Strength, nature and duration of ties

26. Clause 14.2(1) of the Direction states:

    … Reflecting the principles at 6.3, decision-makers must have regard to:

    a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has 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, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

27. The Tribunal has taken into consideration the evidence of those closest to the applicant about the importance of his continuing presence in Australia. It is clear that during his long-term residence in Australia he has established strong links to family and friends. His two sons express the continuing love and support they have for their father. His fiancée describes him as the love of her life and intends to stand by him.

1. In addition to his qualifications and work experience in the automotive industry, the applicant has completed a Certificate IV in Training and Assessment,[50] during which he volunteered as a vocational trainer. The Tribunal has also had regard to the applicant’s sporting, community and charitable involvement.

2. The respondent accepts the applicant’s consistent employment in Australia, and that his immediate family would face hardship if he was removed. However, the respondent contends this consideration does not outweigh the protection and expectations of the Australian community noting the serious nature of the applicant’s offending.

   Tribunal findings: Strength, nature and duration of ties

3. More weight is placed on this consideration given the consistently positive contribution the applicant has made through work in particular. He has also undertaken vocational training, volunteer work, contributed to charities, and competed in sporting and community events, which weighs in his favour.

4. The Tribunal accepts the applicant is very close to his family, particularly his two children who are Australian citizens and his fiancée who is an Australian resident. They would suffer significant emotional distress if he were repatriated.

5. The Tribunal accepts the applicant’s strongest family and social ties are to members of the Australian community. While there is no evidence his fiancée and sons could not visit him in New Zealand, this would be a lesser alternative to comparatively easy access in Australia. Repatriation to New Zealand would separate the applicant from his strongest protective factors, sources of emotional support, and therapeutic relationship with Dr Chan. That is not to say he could not form new work and friendship groups, or alternative therapeutic relationships, or receive visits in New Zealand from family and friends, or maintain contact by telephone or social media. But his strongest family ties and the life he has established in Australia since 1994 would be significantly disrupted. This consideration weighs substantially in favour of revocation.

   Impact on Australian business interests

6. Clause 14.3(1) of the Direction states:

   Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

7. The applicant has not raised any claims, nor does the evidence disclose that this is a relevant consideration in this matter.

   Impact on victims

8. Clause 14.4(1), of the Direction states:

   Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

9. There is no evidence from the victim of the applicant’s offending about the impact of a decision in this matter. The Tribunal places no weight on this consideration.

   Tribunal consideration: Extent of impediments if removed

10. Clause 14.5(1) of the Direction states that:

    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.

11. The applicant stated in his December 2018 revocation request that he has no diagnosed medical or psychological conditions,[51] which is supported by Dr Chan’s report. He has worked consistently since arriving in Australia and expresses a desire to return to work upon release. In addition to his trade qualifications and work experience, he also holds a Certificate IV in Training and Assessment.

12. The applicant’s mother, father and sister are New Zealand citizens and live in New Zealand.  He also states in his 2018 PCF that he has three uncles / aunts and five cousins in New Zealand who he did not refer to in his oral evidence. In his most recent statutory declaration, the applicant states he has a continuing relationship with his father, but they are ‘not overly close’. Other relationships with his mother and sister are complicated by illness, such that the applicant cannot rely on any family support in New Zealand.

13. In his 2018 PCF, the applicant stated he has no concerns or fears about what would happen to him if returned to New Zealand.[52] He has since submitted, however, that he ‘faces the loss of ‘protective factors’ – supportive family, partner, ongoing therapeutic relationships with treating clinicians – should he be forced to leave Australia’.[53]

14. The respondent’s submissions can be summarised as follows:

    (a)The applicant is relatively young and whilst he is receiving psychotherapy in Australia, there is no evidence he suffers from mental health issues for which treatment is not available in New Zealand. Further, his parents and other family members reside in New Zealand;

    (b)While the applicant may face some difficulty in re-establishing himself in New Zealand, this factor would only present as a short term hardship and would not preclude resettlement;

    (c)There is no substantial language or cultural barriers for the applicant to overcome given that he resided in New Zealand until he was 19 years old and has regularly returned to New Zealand;

    (d)As a citizen of New Zealand the applicant has the same access to social, medical and economic support as other New Zealand citizens; and

    (e)There are no evident impediments to the applicant being removed to New Zealand.

    Tribunal findings: Extent of impediments if removed

15. The Tribunal finds that the applicant:

    (a)Was born and raised in New Zealand until the age of 19 and retains familiarity with New Zealand. There is no apparent cultural or language impediment;

    (b)There is no evidence the applicant would be unable to work as the result of any medical or psychological condition. He currently expresses an aspiration to find work if released and there is no reason he could not competitively apply for work in his trade either in Australia or New Zealand;

    (c)Repatriation to New Zealand would separate the applicant from protective factors that have contributed to his rehabilitation and low recidivism risk. These include his fiancée, two children, social and work ties, and established therapeutic relationship with Dr Chan. Under such circumstances the applicant’s psychological health could deteriorate. Moreover, his fiancée has recently been granted permanent residency in Australia, will soon sit her citizenship test, and later this year resumes a 50:50 shared care arrangement for her children. The Tribunal is satisfied she has no intention of returning to New Zealand, which would add to the applicant’s sense of isolation;

    (d)The applicant is unable to draw on meaningful support from family members in New Zealand; and

    (e)If repatriated, the applicant would be confronted by the practical impediments of re-establishing himself in a country he last lived in as a teenager. That being said, life in Australia and New Zealand are broadly comparable and there is no evidence he would not have access to the same public housing, income and other support available to all other New Zealand citizens if he required it.

16. On balance, this consideration weighs moderately in favour of revoking the mandatory cancellation of the applicant’s visa.

    Other Considerations

17. No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 14(1) of the Direction.

    CONCLUSION

18. This is a finely-balanced decision given the seriousness with which any sexual offence against a child is understandably viewed. Australian society abhors such offending and insists that sentences are sufficiently strong to protect children, punish offenders, and serve as a powerful denunciation of such conduct.[54] That reflects the inherent vulnerability of children whose emotional maturity is not fully developed, and who are consequently at a disadvantage when confronted with sexual situations.

19. The applicant has no prior convictions and at the time of his offending was experiencing concurrent stressors that he failed to deal with constructively. In the aftermath of his offending he accepted responsibility, undertook offence-specific counselling, pleaded guilty at the earliest opportunity, was a compliant prisoner, and undertook rehabilitative courses. The Tribunal found his expressions of remorse heartfelt and focused as they should be, on the harm caused to the victim and her family. The protective factors highlighted in the evidence are persuasive and include meaningful counselling, improved coping mechanisms, a partner who continues to stand by him, loving children, genuine prospects of fulltime employment, stable accommodation, psychotherapy sessions under the SOATS, and the supervisory constraints of SORA obligations until 2025.

20. While the Tribunal accepts serious harm may result if the applicant were to reoffend, the likelihood of him doing so is considered low to the point of remoteness. Given the specific circumstances of his case, the applicant does not constitute an unacceptable risk.

21. In considering the best interests of the child, it is clear the applicant has played a prominent parental role in the lives of both his children. The Tribunal accepts he has a loving and supportive relationship with his younger son, and is likely to continue to play a positive and meaningful parental role if allowed to remain in Australia. It is in the best interests of his younger son that the mandatory visa cancellation is revoked.

22. Having lived in Australia for almost all of his adult life, the Australian community is likely to have a somewhat higher tolerance of the applicant’s conduct than would be the case for someone with a more extensive criminal history or who had made less of a contribution through work and other avenues. The applicant’s offending alone, within the context described by the expert evidence, cannot be regarded as decisive or determinative. The community is likely, as the Tribunal was, to find the expert medical evidence persuasive.

23. Of the other relevant considerations in this matter, the Tribunal places more weight on ‘Strength, nature and duration of ties’ in the applicant’s favour, by virtue of his consistently positive contribution through employment, completion of vocational training, volunteer work, charitable contributions, and other community involvement. The Tribunal accepts he is very close to his children and fiancée, who would suffer significant emotional distress if he were repatriated. His fiancée’s circumstances are such that she would be unable to join the applicant in New Zealand, which would add to his sense of isolation. Moreover, repatriation would separate him from his strongest protective factors and established therapeutic relationships, with possibly adverse consequences for his mental health.

24. In terms of ‘Extent of impediments if removed’, there is no apparent cultural or language impediment confronting the applicant if repatriated. There is also no evidence he would be unable to work. Perhaps the key impediment is the effect that repatriation would have on the applicant’s current ability to easily interact with his two children, fiancée, and broader family and social network in Australia. This is likely to cause him and them significant emotional distress. In contrast, his familial links in New Zealand are sparse and complicated by illness and other issues. There is potential for the applicant’s psychological health to deteriorate while trying to re-establish himself in a country he last lived in as a teenager, without his therapeutic and personal support network. That being said, life in Australia and New Zealand is broadly comparable. The applicant has a well-established vocational skillset and a consistent work history. There is also no evidence he would be denied the support available to all other New Zealand citizens if he needed it.

25. Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is another reason of sufficient weight or significance to enliven the statutory power to revoke the mandatory cancellation of the applicant’s visa. That is because the primary consideration ‘Best interests of children’ weighs moderately in favour of revocation. Of the relevant other considerations, ‘Strength, nature and duration of ties’ weighs substantially in favour of revocation, and ‘Extent of impediments if removed’ weighs moderately in favour of revocation. These collectively outweigh the two primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community,’ which weigh moderately against revocation.

    DECISION

26. It follows that the Tribunal sets aside the reviewable decision of 4 December 2019 and substitutes a decision that the mandatory cancellation of the applicant’s visa on 30 November 2018 is revoked.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…[sgd]……………………………….
Associate

Dated: 14 February 2020

Date of hearing:

11 & 12 February 2020

Advocate for the Applicant:

Ms Tanya Skvortsova

Solicitors for the Applicant:

Advocate for the Respondent:

Carina Ford Immigration Lawyers

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore Lawyers

[1] Exhibit R1, 168-169.

[2] Ibid, 77-80.

[3] Ibid, 170-174.

[4] Ibid, 22-40.

[5] Ibid, 41-151.

[6] Ibid, 156-167.

[7] Applicant’s Statement of Facts, Issues and Contentions dated 22 January 2020 (“ASFIC”) [6]-[7].

[8] Exhibit R1, 8-20.

[9] Ibid, 1-7.

[10] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50].

[11] Exhibit R1, 22-23.

[12] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [64] per Colvin J.

[13] Exhibit R1.

[14] Exhibit R2.

[15] Exhibit A1.

[16] Exhibit A2.

[17] Exhibit A3.

[18] Exhibit A4.

[19] Exhibit A5.

[20] Exhibit R1, 22-23.

[21] Ibid, 24-40.

[22] Ibid, 110-123.

[23] Ibid, 109.

[24] Ibid, 124-126.

[25] Ibid, 127-146.

[26] Exhibit A5.

[27] Exhibit R1, 90-97; 108.

[28] Exhibit A1.

[29] Exhibit R2, 27 [26].

[30] Ibid, 26-31.

[31] Exhibit A4.

[32] Exhibit R1, 24-40.

[33] Ibid, 37 [21]-[30].

[34] Ibid, 37[31]-38 [1].

[35] Ibid, 38 [10]. The SORA regulates those convicted of sexual offences, imposing reporting of personal details and annual reporting to police in respect of a range of requirements.

[36] ASFIC [36].

[37] Exhibit R1, 36 [18] – 37 [18].

[38] Ibid, 68.

[39] Ibid, [38]-[39].

[40] Ibid, [42].

[41] Ibid, 147-148.

[42] Ibid, 151.

[43] Ibid, 149-150.

[44] FYBR at [66] per Charlesworth J; and [91] per Stewart J.

[45] FYBR at [104] per Stewart J.

[46] FYBR at [75]-[76] per Charlesworth J.

[47] FYBR at [76] per Charlesworth J.

[48] ASFIC, [50].

[49] Ibid.

[50] Ibid, 44; 65.

[51] Ibid, 69.

[52] Ibid.

[53] ASFIC, [62].

[54] Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).