JPGY and Minister for Home Affairs (Migration) - [2019] AATA 86

JPGY and Minister for Home Affairs (Migration) [2019] AATA 86 (5 February 2019)
Division:GENERAL DIVISION
File Number: 2018/6821
Re:JPGY
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:5 February 2019
Place:Melbourne

The Tribunal decides to affirm the decision under review.
.........[sgd]...............................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – cancellation of visa – pleas of guilty – conviction for sexually based offences – consideration of character test – consideration of ministerial Direction No. 65 – primary considerations – other considerations – other relevant matters – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 35
Migration Act 1958 (Cth), ss 499, 500(6F), 501
Migration Regulations 2004, Sch 2
Sex Offenders Registration Act 2004 (Vic).
Cases
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Maxwell v R [1996] HCA 46; 184 CLR 501
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
R v Inglis [1917] VLR 672
Weston v R (2016) 48 VR 413; [2015] VSCA 354
Secondary Materials
Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Dated 22 December 2014)
New Zealand Pharmaceutical Schedule, February 2019, Vol 26, Number 0 (accessed 29 January 2019)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
REASONS FOR DECISION
Senior Member D. J. Morris
5 February 2019
Background

In this matter, the Tribunal has made a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant and any material that might tend to identify him. He is described in these reasons with the pseudonym JPGY. In addition, where necessary the names of other persons related to the offences for which JPGY was convicted have been redacted.
JPGY was born in New Zealand in 1942. He is a citizen of that country. In
December 2012 he immigrated to Australia, accompanied by his wife. On 2 August 2015 JPGY was granted a Class TY Subclass 444 Special Category (Temporary) visa. This is a class of temporary visa granted to a New Zealand citizen allowing him or her to reside in Australia. On 2 June 2017 an officer of the then Department of Immigration and Border Protection gave JPGY a Notice of Intention to Consider Cancellation of his visa and invited him to provide any comments (GD7, p 61). JPGY made representations dated
11 and 28 July 2017 which the delegate said were carefully considered. On
31 October 2018 JPGY’s visa was cancelled by a delegate of the Minister for Home Affairs (the Respondent) under section 501(2) of the Migration Act 1958 (the Act), exercising discretionary power because the delegate was not satisfied that JPGY passes the character test.
JPGY has asked the Tribunal to review this decision. The hearing was held on
25 January 2019. JPGY was represented by the Hon. Peter Slipper, of counsel. The Minister was represented by Mr Jamie Grant of counsel, assisted by
Mr Christopher Orchard of Sparke Helmore Lawyers. JPGY gave evidence and was cross-examined.
The Respondent tendered a volume of documents under section 500(6F) of the Act (‘GD’ documents), which were taken into evidence. The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant (dated 22 January 2018 [sic, should be 2019]) and the Respondent (dated 18 January 2018 [sic, should be 2019]). The following other exhibits were taken into evidence:
·Statement of the Applicant’s brother, received on 28 December 2018 (Exhibit A1);
·Certificate from Dr Sachin Joshi, oncologist, dated 29 November 2018 with a report from Gippsland Cancer Care Centre dated 23 August 2017 and a medical letter from Dr Joshi to Dr Zafar Zafar, general practitioner, dated 24 May 2018 (Exhibit A2);
·Household budget balance sheet prepared by the Applicant (Exhibit A3);
·An earlier Statement of Facts, Issues and Contentions submitted by the Applicant and received on 28 December 2018 (Exhibit R1).
At the commencement of the hearing, Mr Slipper confirmed to the Tribunal that the Statement of Facts, Issues and Contentions submitted by counsel on 23 January 2019 replaced the earlier statement submitted by JPGY before he had legal representation.

Mr Slipper said that JPGY did not now seek to rely on the earlier statement. Mr Grant argued that the earlier statement related to relevant questions requiring consideration by the Tribunal in regard to evaluating JPGY’s remorse for his convictions in undertaking an assessment of risk. The Tribunal accepted this earlier statement into evidence, as tendered by the Respondent, noting that JPGY no longer sought to rely on its contents.
Issues and legislation
The Applicant is entitled to have the delegate’s decision to cancel his visa reviewed, provided he lodges his application for review within nine days after the day he was notified of the decision to cancel the visa (Migration Regulations 2004, Sch 2, and GD2, p 11). It is regrettable that the letter sent to JPGY was not dated and the Tribunal was required to seek confirmation of the date on which the Applicant received the advice, which was provided by the Respondent. It was not disputed by the parties that JPGY lodged his application for review within the prescribed period.
Section 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if:
a.the Minister reasonably suspects that the person does not pass the character test; and
b.the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(e) of the Act states that 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…
On 11 October 2016 JPGY pleaded guilty at the Geelong Magistrates’ Court to three charges of the offence of indecent act with child under sixteen, and was convicted. On the same date he was fined without conviction on one charge of the offence of unlawful assault. The Tribunal had before it a National Police Certificate dated 24 October 2016 (GD6, p 25) which recorded these four matters as the only records held against JPGY. The Respondent accepted contentions made by the Applicant that he had no other convictions recorded against him in Australia, New Zealand or any other country.
In relation to the three sexually based offences, JPGY was convicted and sentenced to a Community Correction Order (CCO) for 18 months, the order to commence on
11 October 2016. In relation to the charge of unlawful assault, the fine imposed by the Court was $500 plus statutory costs. Because of the type of offences, JPGY was also placed on the register established under the Sex Offenders Registration Act 2004 (Vic) for life.
The Tribunal had before it the transcript of proceedings before the Magistrate at Geelong Magistrates’ Court on 11 October 2016 (GD6, p 26). On the basis of this evidence, the Tribunal is satisfied that JPGY was convicted by a Court of three sexually based offences on that date and finds that he does not pass the character test on that basis. The Tribunal notes that this fact was not disputed by the parties.
Having made this finding, the Tribunal must next consider whether there is another reason why JPGY’s visa should not be cancelled.
Minister’s Direction – Direction No. 65
Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(4)The purpose of the Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Relevantly, the Direction includes the following 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 vulnerable members of the community such as minors, 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 a 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.
In the case of deciding whether to cancel a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part A, which are divided into primary considerations and other considerations. The primary considerations in
Part A are set out in paragraph 9(1) of the Direction as follows:
·    Protection of the Australian community from criminal or other serious conduct;
·    The best interests of minor children in Australia; and
·    Expectations of the Australian community.
Other considerations set out in paragraph 10 of the Direction include but are not limited to: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)).
Submissions of the Applicant
Counsel for the Applicant stated that JPGY came to live in Australia in 2012 with his wife, so as to be nearer to their son, their only child, who works in Melbourne. Mr Slipper submitted that the offences of which JPGY was convicted in October 2016 were objectively serious offences, the early pleas of guilty indicate genuine remorse on the part of the Applicant.
Mr Slipper said that pleading guilty shows that JPGY accepts responsibility for his actions and seeks clemency in regard to the question of the cancellation of his visa. He stated that the Applicant has always believed that inappropriate conduct by a male towards a female or other person of any age is abhorrent and accepts his conduct and his behaviour were unacceptable, thoughtless and entirely inappropriate. Mr Slipper said that JPGY’s pleas of guilty sought to spare the victims further trauma.
Mr Slipper noted that JPGY had no previous or subsequent criminal history in Australia or New Zealand and has met all the requirements of his sentence.
Submissions of the Respondent
Mr Grant submitted that JPGY does not attempt to explain the conduct for which he was found guilty, and drew attention to his assertion that, were he to do so, he would be a liar and a hypocrite (Exhibit R1). Mr Grant said that material submitted by JPGY to the Tribunal seeks to prove that he did not commit the conduct giving rise to his convictions, and to explain why he pleaded guilty.
Mr Grant submitted that it is not open to the Tribunal, as a matter of law, to impugn JPGY’s convictions (see Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234 at [25] (SRT) and the authorities referred to in that judgment). Mr Grant said it was open to the Tribunal to take into consideration the material before the Court for the purposes of assessing the nature and seriousness of the Applicant’s conduct, however it cannot do so where the real effect of the evidence, if accepted, would be to go behind the conviction.
Mr Grant drew the Tribunal’s attention to the Full Federal Court decision in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649, where Fisher and Lockhart JJ stated:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
…
The Tribunal’s task includes assessing the deportee’s character and personality, his criminal behaviour, the risk of repetition of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood of harm to him if deported.
Mr Grant said that JPGY’s position makes accurate assessment of the risk he poses to the Australian community difficult because the Applicant seeks to avoid his convictions and refuses to express remorse for his crimes. Mr Grant said that JPGY’s claims that the community corrections assessment officer assessed him as having a low risk of reoffending (Exhibit R1) but that this claim is not corroborated in any report produced for the Tribunal.
Mr Grant conceded that JPGY has the support of his wife and son, but noted that there was nothing to suggest he did not have their support at the time of his offending. The Respondent accepted that the ongoing prohibition on JPGY initiating contact with persons under the age of 18 (referred to by the Applicant in his Personal Circumstances Form at GD11, p 87) may reduce the likelihood of re-offending.
The offending
The Court transcript (GD6, pp 26-60) records that JPGY befriended two girls, Victim One and Victim Two, who at that time lived in the same street as JPGY. The children would often visit JPGY where he would assist them to build items out of scrap materials in his garage. JPGY built a doll’s house for Victim One, and also a table and chair for her, where she practised her reading in his garage (JPGY being a former teacher).
In relation to the first count of indecent assault, on the day of the offending Victim One’s mother entered the garage of JPGY’s house and, submissions to the Court record:
…observed girl 1 lying in a wheelbarrow and the accused standing over her with his hands around her waist. She called out to her teenage son who attended the garage and took girl 1 inside. There was no conversation between the accused and the other parties. Girl 1 was then asked what had occurred inside the house [garage] and girl 1 stated that the accused was tickling her. Girl 1 was then asked where the accused had tickled her and she replied “On my private parts,” and indicated to her vagina, bottom and under her arms.
In relation to the second and third counts of indecent assault, JPGY took Victim One to visit Victim Two at the latter’s house to mark Victim Two’s birthday. Victim Two, as mentioned was a former neighbour, but she and her family had since moved to another residence a short distance away. The prosecutor told the Court:
The children were playing a game on the trampoline with the accused where they would jump near him and he would try to grab their legs and make them fall. During this time the accused was observed by girl 2’s adult sisters to become increasingly inappropriate with the children by stroking their legs when he pulled them down. Girl 1 was wearing loose fitting shorts at the time and the accused was observed by a witness to have his hand up her leg and under her shorts towards her groin area. Girl 1’s t-shirt had also risen up by being dragged across the trampoline and the accused stroked her on the chest and stomach. Following this the accused pulled girl 2 over the edge of the trampoline. Girl 2 was lying on her stomach with her torso hanging off the trampoline, the accused then began pinching girl 2 on the bottom. The accused was confronted by two witnesses in the backyard and told to leave the residence. Girl 1 stayed at the residence and was returned to her home address by girl 2’s father.
The Court heard that, at the time of the offending, Victim One was aged 7 and Victim Two was aged 12.
Evidence of JPGY
JPGY opened his evidence by giving an account of how he felt about the sentence and his level of remorse. He said he was happy to plead guilty, one of the reasons being was to spare the victims further trauma of being cross-examined in Court. He said he was aware that the whole business has caused them a lot of upset.
JPGY said that Victim One is far too young to understand what she said to police and to her parents. He then said that the most serious incident was an isolated incident, and there is no suggestion I tried to do that again. JPGY told the Tribunal that he was deeply regretful that this had occurred, was aware that the consequences may be far-reaching and that there was no chance anything like this will ever happen again.
JPGY gave evidence that the main reason he and his wife moved to Australia was to be near their son. He gave extensive evidence of his health conditions including diagnosed metastatic melanomas. The two main drugs he is prescribed for these metastatic melanomas are Dabrafenib and Trematinib, which are subsidised in Australia but not in New Zealand. He said he must have regular blood tests and a CT scan every three months which are free in Australia, because of his age, but not free in New Zealand. JPGY gave details of his household income, referring to Exhibit A3, and the Tribunal notes that his lawyer in the Court transcript referred to JPGY’s finances being thin.

JPGY said that, after the offending, he and his wife had moved to a new town, more than two hours’ drive from their former residence and well away from Victims One and Two. He said that in their new location they are surrounded by older people and he was not aware of any children living nearby. JPGY said the effect of his convictions is that he and his wife have withdrawn from society and find it hard to make new friendships.
Under cross-examination JPGY outlined that he had a career in the New Zealand army in New Zealand and a posting to the United Kingdom. He also taught and worked for a university in the South Island of New Zealand, and then worked for a technology company until retiring from work just prior to moving to Australia.
JPGY said that he had few friends in his home city in New Zealand, except one family with whom he kept in touch. He said he had two siblings living in the city and one brother living in a town around three hours driving distance from the city. This brother had made a written statement of support (Exhibit A2) and JPGY said he had also provided a substantial financial loan to assist in JPGY’s legal expenses.
Mr Grant asked JPGY about his convictions. The Applicant said that the fact he pleaded guilty shows that he was exhibiting remorse. He said that many of the statements made by Victims One and Two and other witnesses were not accurate and made him sound worse than he was. He said the statements did not reflect what really happened.
JPGY said that if I had actually done everything as described, I was remorseful but that he was not sorry for things he did not do. JPGY said he did not tickle Victim One on the vagina, bottom and under her arms, or put his hand under the shorts of Victim One when she was on the trampoline. JPGY told the Tribunal that he did admit to pinching Victim Two on her bottom.
JPGY was asked what he was remorseful for, and replied that he was remorseful for putting them in the position of having these charges raised but that he was not remorseful for the acts for which he was convicted.
Mr Grant asked JPGY about his statement lodged with the Tribunal which stated that he was unlikely to re-offend. JPGY said he was interviewed after his guilty plea by a female officer attached to the Court in relation to assessment for a CCO and that he saw her write on a form the words ‘unlikely to re-offend.’ JPGY stated that he never received a copy of that document.
JPGY said he attended the rehabilitation course as directed by the Magistrate and found the course content useful in putting things into perspective in regard to modern attitudes to sexual advances.
In answer to a direct question from the Tribunal about what JPGY did accept he did wrong, the Applicant said he accepted that he tickled Victim One. He said the three charges were presented to him and he was asked to plead guilty to all or nothing, which he did.
Consideration of the Direction
Primary consideration: Protection of the Australian community (paragraph 9.1)
The nature and seriousness of the conduct (paragraph 9.1.1)
The Direction requires decision-makers to have regard to factors including, at (1)(a) of the paragraph, the principle that sexual crimes are viewed very seriously and, at (1)(b), the principle that crimes committed against vulnerable members of the community, such as minors, are serious. Section 2 of the Direction, relating to the application of the character test, makes clear that sexually based offences involving a child include indecent dealings with a child (paragraph 7(2)(b)).
There is no doubt in the Tribunal’s mind that the crimes for which JPGY was convicted were serious. While the offences may not have been at the higher end of the offending scale, there are factors which must be considered which are relevant in the circumstances of the offending. JPGY had built up a friendship with Victim One (particularly) and Victim Two, and an acquaintanceship with their families. Victim One’s parents extended trust that their young daughter was able to play and be in the presence of JPGY in a safe manner. The Tribunal notes that the relationship between JPGY and his wife and Victim One and her parents was such that the Applicant and his wife had attended her primary school for ‘grandparent’s day’.
The Tribunal accepts the well-articulated principle set out in SRT that administrative tribunals undertaking merits reviews of administrative decisions may not go behind convictions made by courts of competent jurisdiction. It is also settled law, as the Tribunal made plain during the hearing, that a plea of guilt, such as that entered by JPGY’s legal representative at the Magistrates’ Court on his behalf, means that a person admits to, and accepts, all the elements of the offence. The authority is Maxwell v R [1996] HCA 46; 184 CLR 501, at [19]:
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise. (Footnote: R v Inglis [1917] VLR 671)
(Emphasis added.)
The Courts have accepted that there may be limited cases where a plea of guilt may be impugned. Redlich JA said in Weston v R (2015) 48 VR 413; [2015] VSCA 354, at [109]:
To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit he was guilty, or his plea may have been induced by fraud or other impropriety or that it was not offered with a consciousness of guilt.
A merits review Tribunal, taking account of the principles articulated in SRT, would tread in this area with great trepidation. However, it is nevertheless relevant to note that there was no evidence before the Tribunal that any one of these exceptional circumstances outlined by Redlich JA is applicable to JPGY’s case. The Applicant had legal representation at the Court and it is clear from the transcript (GD6, p 56) that his lawyer sought instructions before entering the pleas of guilt on his behalf. JPGY did not suggest at the Tribunal hearing that the pleas of guilt were entered by mistake. To the contrary, JPGY stated that he in part entered guilty pleas to spare the young complainants from having to give evidence, which the Magistrate noted was to his credit. JPGY also said he would incur significant additional legal costs were he to contest the charges (GD12, p 96).
The Tribunal asked JPGY directly about a statement he made in his earlier written submissions: I now find myself in the unenviable position of having to prove that my guilty pleas were erroneous (GD12, p 96) and asked him if he now repudiated that statement, which JPGY told the Tribunal he did.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 9.1.2)
Mr Slipper said that JPGY had now moved a significant distance away from the places where the offending occurred. He said JPGY was remorseful and accepted his sentence. He said that to remove him from Australia would be a significant disruption to him and his wife of more than 50 years, and would impose a major financial cost in a situation where their life savings had already been spent on legal costs.
Mr Grant submitted there remains a risk that JPGY will re-offend because the Applicant has refused to acknowledge his offending and refuses to express remorse, and that his particular behaviour remains unexplained. Mr Grant noted that JPGY had no prior convictions for any crime. Although the Tribunal did not have the corrections assessment officer’s report before it, on balance the Tribunal is inclined to accept JPGY’s evidence that it was the officer’s view, following her interview with him on the day of the Court appearance, that he would be unlikely to re-offend. However, that view is based only on a short interview that the officer was directed to undertake by the Magistrate during a short adjournment in regard to suitability for a CCO, and cannot be regarded as a detailed forensic assessment. Notably, the officer was making the assessment in regard to a situation where a person had admitted guilt, not with the knowledge of the subsequent partial denials.
The Tribunal notes that JPGY and his wife relocated to be away from Victims One and Two and because of unpleasantness that had developed with their neighbours, Victim One’s family. However, the arguments put forward by the Applicant, and to some degree acknowledged by the Respondent, that the fact that JPGY does not live near young children and therefore is less likely to re-offend seem to be particularly badly founded, when there is clearly a dissonance in the mind of the Applicant about his offending and his acceptance of responsibility for it.
JPGY’s evidence to the Tribunal was frankly inconsistent. He said he was remorseful and accepted the convictions, but when pressed on the elements of his offending, said that he did not accept that he had done wrong, except for his admission of pinching Victim Two. On the one hand he said in his evidence that the offending was an isolated incident that would not happen again, and on the other he denied the facts as accepted by the Court. The Magistrate queried counsel as to whether there was any evidence of dementia and was advised that there was not, but it is clear to the Tribunal that, for whatever reason, there is a major disconnection between JPGY on the one hand saying he accepted that he had done wrong, but then, on the other, actively refusing to accept the facts of the offending. This disjunction remains unexplained.
Mathews J (as a Deputy President of the Tribunal) said in Re: Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
In all the circumstances, the Tribunal may accept Mr Slipper’s contentions that there may be a low risk of re-offending. However, JPGY does display a disregard for the law. It may not be a conscious disregard, but he exhibits a stark and, the Tribunal finds, obdurate refusal to accept the elements of his offending. This is a stance he took in his written submissions to the Department and to the Tribunal, an untenable position where there were convictions (notably following guilty pleas) which Mr Slipper earnestly sought to disaffirm in his submissions on JPGY’s behalf, but a position to which JPGY reverted in his oral evidence.
Because of this troubling attitude of mind which indicates a lack of insight into his actions, and therefore a failure to satisfactorily accept personal responsibility for them, the Tribunal finds, in this assessment, that it is unable to conclude that the risk of JPGY re-offending is an acceptable one. Because of the seriousness of the conduct, the benefit of the doubt in this review cannot reasonably be given to JPGY.
This primary consideration weighs strongly in favour of cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 9.2)
Parties did not put forward any contentions in regard to this consideration. JPGY confirmed to the Tribunal that his adult son was his only child in Australia and that there were no grandchildren or other minor children who are affected by his visa cancellation. The Tribunal therefore did not consider this primary consideration further.
This primary consideration weighs neutrally in terms of the decision under review.
Primary consideration: Expectations of the Australian community (paragraph 9.3)
Mr Grant submitted that the Australian community has a low tolerance for sexual offending against minor children and would not expect JPGY to continue to hold his visa, especially where, in his submission, there is an ongoing risk of harm.
The Tribunal adopts the approach that this consideration must be considered through the lens of hypothetical members of the Australian community who are fully apprised of the particular facts and circumstances of a non-citizen’s conduct. The Tribunal notes that the sexually based offences were committed against two young girls who were neighbours of JPGY. Their parents had tacitly, and by their actions, reposed an element of trust in JPGY and, prior to the offending, had no reason not to believe their daughters were other than safe in his presence. He breached that trust and pleaded guilty to three counts of indecency that, while they may not be at the higher end of offending, would necessarily have had some traumatic effect on the victims, a fact that JPGY himself acknowledged when he stated that he did not want to expose them to the added trauma of having to relive the matters in Court.
The Tribunal considers that informed community members would also take into account that JPGY is an elderly man with a range of significant health conditions, and that the likelihood of him in the future breaching the obligation of all non-citizens (and, for that matter, citizens) to obey Australian laws may be mitigated by these factors.
The Tribunal concludes, based on the betrayal of trust and the offending against minors, that this primary consideration weighs in favour of cancellation of JPGY’s visa.
Other consideration: International non-refoulement obligations (paragraph 10.1)
There was no evidence before the Tribunal that this consideration is engaged. The Tribunal finds that the relevant considerations in the 1951 Convention Relating to the Status of Refugees are not captured in this assessment and JPGY did not cite any other ‘non-convention’ apprehensions in regard to his personal protection were he to be returned to New Zealand. The Tribunal therefore did not consider this other consideration further.
Other consideration: Strength, nature and duration of ties to Australia (paragraph 10.2)
JPGY has only one child, a son who is a New Zealand citizen but who has resided in Australia since 2000. The Applicant said that he and his wife would visit his son about every two weeks before he was taken into immigration detention. JPGY said that if he were repatriated he would be unable to attend his son’s wedding. However, when pressed on this at the hearing, the Applicant said that he was referring to a possible wedding in the future, not one which has been planned. The Tribunal accepts that this should be interpreted as meaning that, if returned to New Zealand, JPGY would inevitably miss some important interactions with his son and his son’s partner.
The Direction requires decision-makers to have regard to how long a non-citizen has resided in Australia, which in this case is just over six years, and that more weight should be given to time that a person had contributed positively to the community. The Tribunal accepts that JPGY and his wife have contributed to the Australian economy by buying real estate in Australia, balanced slightly by the Centrelink payment they receive from the Australian Government to adjust their New Zealand-rated pensions. Balancing that is that JPGY spent almost all of his first 70 years in New Zealand (except for a short stint in Britain) and the nature and strength of his ties to Australia are consequently of recent duration. Apart from tourist visits and his son’s presence in Australia, they commence from the end of 2012.
The Tribunal accepts that repatriation would have an effect on the Applicant’s immediate family in leading to less frequent direct contact with JPGY and his wife’s only child, but notes that their son is in stable employment and, as a New Zealand citizen, that there is no impediment to him travelling to New Zealand to visit his parents.
Because JPGY’s only child resides in Australia, the Tribunal finds that this consideration weighs slightly in favour of revoking the cancellation of the visa.
Other consideration: Impact on Australian business interests (paragraph 10.3)
The Respondent submitted that this consideration was not engaged, and counsel for the Applicant did not demur. JPGY came to Australia after he had retired from remunerative work and has not engaged in business since arriving here in 2012. The Tribunal did not consider this other consideration further.
This consideration weighs neither for nor against the cancellation of the visa.
Other consideration: Impact on victims (paragraph 10.4)
Mr Slipper submitted that there would be no impact on the victims of JPGY’s offending one way or the other, and Mr Grant agreed that this consideration weighs neutrally in this review. The Tribunal notes that JPGY has moved to a different part of the State since the time of the offending and has had no contact with the victims or their families. The Direction requires this other consideration to be taken into account when relevant information is available, and as no such was before the Tribunal, this consideration weighs neither for nor against the visa cancellation decision.
Other consideration: Extent of impediments if removed (paragraph 10.5)
The Direction requires a decision-maker to take into account the extent of impediments for a non-citizen re-establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country. The Tribunal must take into account JPGY’s age and health; any substantial cultural or language barriers he may face; and any social, medical or economic support available to him in New Zealand.
There are no cultural or language barriers that were before the Tribunal. In regard to JPGY’s age and health, there was medical evidence before the Tribunal that he has several inoperable cancers, for which he is receiving palliative treatment in Australia. JPGY submitted that he is on a regular course of two BRAF-inhibitor drugs, Dabrafenib and Trematinib, for his metastatic melanomas, which is corroborated by Dr Joshi’s report (Exhibit A2). JPGY submitted that these drugs are available to him in Australia at a nominal cost of around $12.50 per month because they are subsidised through the Australian Pharmaceutical Benefits Scheme. He further submitted that they are not available through the equivalent subsidised pharmaceutical scheme in New Zealand, the New Zealand Pharmaceutical Schedule, and that therefore the cost to continue this treatment would be, in his estimation, some NZ$120,000 a year, which would be unaffordable with his means.
Noting there is no corroboration of JPGY’s cost assessment, the Tribunal has informed itself under section 33 of the AAT Act and notes that these two medicaments are not available under the New Zealand subsidised pharmaceutical scheme. However, the Tribunal also notes Dr Joshi’s advice to JPGY’s treating general practitioner, Dr Zafar, on 23 August 2017 that JPGY was, at that time completely asymptomatic and that in direct questioning from the Tribunal, the Applicant confirmed that was still the case at the date of the hearing, with the qualification that he has some difficulty balancing on one leg.

The Tribunal also notes that Dr Joshi advised Dr Zafar in May 2018 that JPGY was clinically stable. The Tribunal notes Dr Joshi’s opinion that the course of treatment he had placed JPGY on is more effective than immunotherapy like Keytruda at least in a first line setting. In his August 2017 report, Dr Joshi diagnoses JPGY with stage IV metastatic melanoma. JPGY gave evidence that he had a melanoma in the cerebellum, one near the heart, several in the lungs (and had undergone a lung lobectomy), one on his liver, one on his kidney (he has a horseshoe kidney), one in the groin and one on the buttocks. The Tribunal notes that the drug Keytruda is fully subsidised in New Zealand for persons with melanoma that has spread and which is inoperable, pathology that on the medical evidence characterises JPGY’s condition.
The Tribunal accepts that JPGY’s Australian medical advisers are treating him with drugs which are not subsidised in New Zealand. However, there was no evidence before the Tribunal that this is the sole treatment suitable for the Applicant’s medical conditions; only that Dr Joshi’s view is that use of these drugs may be more effective than the alternatives. The Tribunal is required by paragraph 10.5 of the Direction to consider the medical support available to JPGY in the context of that generally available to other citizens of New Zealand, and finds, on the medical evidence before it, that there are reasonable alternative clinical treatment options available to him if repatriated.
In terms of economic support, JPGY gave evidence that he and his wife receive

New Zealand age pensions and that he also receives a New Zealand Government superannuation pension, payable because of his public service and Army career. In Australia, JPGY and his wife receive a fluctuating ‘top up’ payment from Centrelink to take account of the exchange rate, from time to time, between the New Zealand and Australian currencies. JPGY confirmed that he has maintained bank accounts in New Zealand with a credit card facility. The Tribunal considers that, given the evidence of regular pension and superannuation income, there would be no apparent obstacle to JPGY being extended a short-term bank loan if required. The Tribunal also notes the evidence of JPGY that his brother had significantly assisted him in regard to his legal costs and that there may be family assistance, either financially or in the nature of temporary accommodation, should he be repatriated.
The Tribunal finds that this consideration weighs neutrally in this consideration. There is no evidence that the range of other cancer treatments available to other citizens in

New Zealand would not be equally available to the Applicant.
Other matters
The Tribunal is not restricted only to the considerations in the Direction, and may take into account any other relevant factors. JPGY gave evidence that, if his visa was cancelled, he would be repatriated immediately but that his wife would have to remain behind to sell their house and arrange removal of their effects. JPGY said that he would be on the street in New Zealand. The Tribunal considers that this was a somewhat florid comment, because there is ample evidence of at least two siblings who may be able to offer accommodation, and that JPGY has access to funds and the apparent ability to take out loans. The Tribunal notes that the Applicant has had his house valued and, noting his own assessment that the real estate market in the town where they live is sluggish, considers that the logistics of moving, while perhaps difficult, will not be insurmountable.
Conclusion
The Tribunal has carefully considered the submissions of both parties. The Tribunal gives due regard to the fact that JPGY had no convictions of any kind before 2016 and on the evidence has led a productive and creditable life both in the army and in public service, and in his involvement in the community and particularly in music.
It may be accepted that the offending which precipitated consideration of his visa was not consistent with his previous character, and in fact quite alien to it. However, what is most concerning to the Tribunal is the lack of appreciation of the Applicant of the gravity of his offending and that, in the face of pleas of guilt and a conviction, he still persists in equivocating about accepting responsibility for his serious criminal conduct.
The Tribunal is not unmindful that JPGY is an elderly man in indifferent health and that cancellation of his visa will also have a significant adverse impact upon his wife, who is blameless in this matter and impressed the Tribunal with her consistent and loving support for her husband. Cancellation of the visa will also have some impact on their son in limiting his ability to have regular personal contact with his parents. However, after careful consideration the Tribunal finds that there was serious offending and that a safe assessment of the risk of re-offending cannot be made. The Tribunal therefore finds that the correct and preferable decision is that JPGY’s Class TY Subclass 444 Special Category (Temporary) visa be cancelled.
DECISION
The Tribunal decides to affirm the decision under review.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

……[sgd]……………………………………………
Associate
Dated: 5 February 2019

Date of hearing:  25 January 2019
Counsel for the Applicant:                  The Hon. Peter Slipper
Counsel for the Respondent:             Mr Jamie Grant
Solicitors for the Respondent:           Sparke Helmore Lawyers