JZJR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

JZJR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1027 (5 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/1337
Re:JZJR
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO
Date:5 May 2023
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 23 February 2023 not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) Visa, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
............................[SGD]...........................................
The Hon. John Pascoe AC CVO
CATCHWORDS
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – whether the Applicant committed family violence – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – impediments to removal – reviewable decision set aside
LEGISLATION
Migration Act 1958 (Cth) s 499, 501
CASES
FYBR V MINISTER FOR HOME AFFAIRS [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO
5 May 2023
BACKGROUND

By way of application dated 3 March 2023, the Applicant seeks review of the decision of a delegate of the Respondent dated 23 February 2023 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act). The decision of the delegate was made on the basis that the delegate was neither satisfied that the Applicant passed the character test nor that there was another reason why the cancellation decision should be revoked.
A summary of the circumstances of the application is set out below.
The Applicant is a 64 year old citizen of the United Kingdom (UK). He first arrived in Australia in June 1960 at the age of one.
In November 1994, the Applicant was convicted of unlawful assault and wilfully damage property. He was sentenced to an aggregate fine of $750.
In June 2015 the Applicant was convicted of ex. Presc conc 3hrs – breath – drive vehicle and 2 counts of drive while disqualified. The Applicant was sentenced to a 12-month Community Correction Order.
In September 2021 the Applicant was convicted of 4 counts of Intentionally sexual touch child under 10 years (DV)-T1. For two of the counts the Applicant was sentenced to an aggregate sentence of 3 years and 3 months imprisonment. The other counts were taken into account in Form 1.
The Applicant’s most recent offending took place over a 2 month period, and the victim was a relative, who was living in the same house as him at the time.
The details of the Applicant’s offending were set out in the sentencing remarks of the District Court, dated 21 September 2021, which were before the Tribunal
On 16 February 2022, the Applicant’s visa was mandatorily cancelled under a s 501(3A) of the Act.
On 23 February 2022, the Applicant made representations seeking revocation of the cancellation of his visa.
On 23 February 2023, the delegate refused to revoke the mandatory cancellation of the Applicant’s visa.
LAW
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the five primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)The strength, nature and duration of ties to Australia (Primary Consideration 3);
(d)The best interests of minor children in Australia (Primary Consideration 4); and
(e)Expectations of the Australian community (Primary Consideration 5).
Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
ISSUE
It is agreed by the parties that the Applicant does not pass the ‘character test’ as defined by section 501(6) of the Act as he has a substantial criminal record under s 501(7)(c) of the Act. Therefore, the only issue before the Tribunal is whether there is ‘another reason’ why the original decision, being the mandatory cancellation of the Applicant’s visa, should be revoked pursuant to s 501CA(4) of the Act.
EVIDENCE OF APPLICANT
The Applicant gave evidence that he arrived in Australia from the United Kingdom in 1960, at approximately two years old.
He had returned to the United Kingdom as a tourist on two occasions. On the first occasion he had spent a couple of weeks in the UK and on the second occasion, one week. Although he said he had family in the UK, he said he does not really know them, and there is little contact. The Applicant also said he has no friends in the UK and that, essentially, he did not know anyone there.
The Applicant said that all of his family lived in Australia. His ex-partner lives in the Newcastle area, close to a property the Applicant and his ex-partner previously owned, which was sold. The Applicant’s share of the proceeds from the sale of that property were put into trust for his victim. The Applicant said that this was because he wanted to help her and felt that by doing this, he would atone to some extent for his behaviour towards her.
The Applicant had last had contact with his ex-partner in November 2022, at the time of the sale of the house. This was also the last time he had contact with his son C, who was involved in facilitating the sale of the house.
The Applicant’s daughter S was the mother of his grandchildren, B & H. He had not had contact with his daughter for a long period, until the week prior to the hearing, when she contacted him via text message, essentially saying that she wanted to be able to say goodbye to him and give him a hug, in the event that he was removed from Australia.
The Applicant said that he had texted S back to put the meeting off, although he wanted to re-establish contact, because he felt that Villawood was not the right place for a meeting.
He said that during the time of his imprisonment he had had two videocalls with S, around Christmas 2021 and subsequently.
The Applicant’s last contact with his son C was in November 2022. C is not married and has no children.
The Applicant said that he has sent letters to all of his family, apologising for his behaviour and saying that what he did was ‘horrific’.
Two of the Applicant’s siblings, M and B provided letters of support. He is closest to his sister M, who is now 72 or 73, and ‘not in the best of health’, having been through cancer surgery. The Applicant did not ask her to come to hearing to give evidence on his behalf because he did not want to burden her, given her health issues. The Applicant said that most of his siblings, along with his great nieces and nephews, apart from M live in Victoria. He is in regular daily contact with M, but had his last personal contact with B was approximately 2 and a half years ago. He noted that B has sent two letters in relation to his case.
His sister M, lives in a town in rural New South Wales and he would go there to live with M and her partner if he were released into the community. M has a partner, but no children. Both she and her partner are aware of the Applicant’s offending.
In June 2022, the Applicant was transferred from Long Bay Correctional Centre to Villawood at the end of his prison sentence. He still has a period of approximately 6 months parole to serve.
The Applicant confirmed that all of the documentation relating to his visa cancellation was correct, along with his statements of July 2022, and August 2022.
He also accepted the material contained in the Forensic Psychologist report dated 25 June 2021.
The Applicant was taken to his offending record. The first offence of unlawful assault and wilfully damage property took place in 1994. The Applicant had no adverse interaction with the law previously. On that occasion he said that he had been very stressed as he had ongoing financial pressures, had completed work for the victim of his assault who had then sent him a number of cheques which were dishonoured and did not pay for the work. There was no physical assault of the victim, but the Applicant did smash a television set. The Applicant entered a guilty plea for this offence. He said that he felt bad about his offending on that occasion and that he had to pay a $750 fine and was subject to a good behaviour bond. He was never paid for his work at the victim’s home.
The Applicant also accepted that he had been convicted of a driving offence in June 2015. He said he had had a problem with alcohol and that he had moved from Victoria to New South Wales in order to get away from the ‘drinking culture’. The Applicant said that he had purchased a property in near Newcastle, and he moved there with his family. His motivation for moving to New South Wales was to provide a home for himself, and in particular, for his daughter, who was having financial difficulties and also needed somewhere to live.
He had previously also purchased a café business in Victoria to provide ongoing employment for S who essentially managed the business with the Applicant also attending every day, in order to do whatever was necessary, including, cleaning and running errands. The café business was sold in approximately 2016.
The Applicant said that he received support and counselling from his older brother, P, who helped him settle in. P was a non-drinker and helped the Applicant to put his energy into golf and exercise, rather than drinking. P had moved to Victoria after the Applicant’s most recent offending, and was no longer in contact with the Applicant. P had a partner, but no real social group in the area, which was described as a ‘small country town’, where it was extremely difficult to develop a social network.
The Applicant also accepted that he had wrongly filled in arrival cards when he returned to Australia from overseas travel. He said that he had failed to disclose that he had ‘any criminal convictions’, because he thought that those words referred to serving time in gaol, which he had not done at the time of filling in the arrival cards.
The Applicant accepted the offences for which he had been charged in relation to inappropriately touching his granddaughter. He accepted that he had initially denied the offences to his daughter, but on the next day he had spoken to her, admitted the offences and apologised.
The Applicant said that he did not agree with the remarks of the delegate in relation to his offending becoming more serious over time. But accepted that his granddaughter was vulnerable and that he abused her trust.
The Applicant said that he still could not explain to himself why he committed the offences, and that he was wanting to get some ‘help with that’.
At the time of the offences the Applicant gave evidence that, having left Victoria where he had family and friends, he felt isolated, that he was not coping, and that he had no one to talk to.
The Applicant gave evidence that most of his time in prison had been spent during COVID-19 lockdown, and for that reason and because he was classified as being a ‘low risk’ of re-offending, he had not received any counselling, or psychiatric treatment.
The Applicant said he was not aware of mental health services being available at Villawood, although he had regular contact with doctors there, particularly in relation to his shoulder surgery.
The Applicant did not have any friends that he could talk to and said that he had lost contact with his social circle following his offences.
He described life in Villawood as being lonely and isolated. When asked how he filled in his time, he said he ‘does a lot of reading’. He said his only social support was M.
The Applicant said that he had 6 months of parole to complete if he were to be released into the community, and he believed that psychological counselling would be part of his parole conditions. However, the Applicant said that if he did not receive counselling through his parole officer, he would definitely be seeking it himself, as he wanted to know why he committed the offences against his granddaughter.
He emphasised his contrition and said that such offences would never happen again.
The Applicant acknowledged that he would have to get help if he were released into the community but said that he would be able to get ongoing help through M, who herself has a counsellor. The Applicant said that he would speak to M about organising counselling.
The Applicant said that he had grandnephews and nieces in Victoria, but they were not really part of his life, especially after he had moved to New South Wales, about 6 years ago. He said he keeps in touch with his nieces and nephews, however.
Prior to his offending, the Applicant said that he had a very close relationship with both B and H, and that he took them to school every day, took them fishing and golfing, ‘everything that a grandfather should do’. He had had no contact with the children since his offending. He said his offending had an adverse effect on both B and H. He thought his daughter S had contacted him recently because she was concerned that if the Applicant were removed from Australia ‘she will never get to see him again’. The last exchange of text messages between the Applicant and his daughter occurred on Friday 21 April 2023. The Applicant accepted that his daughter was not looking for explanations of his behaviour but rather was assuming that the Applicant would be removed from Australia.
The Applicant said that prior to his offending he had a very close relationship with S, and that he hoped that in future the relationship would get better. The Applicant said that if he were removed to the UK he would never see his family again ‘realistically speaking’. He felt that he would at least have a chance of reconciling with his family if he were to remain in Australia but would ‘never mend it back there – ever’.
The Applicant said that he had no health problems at the moment. He suffered from gout, had restricted movement in his shoulder, and that he took medication for ongoing pain. The Applicant said that if he were released from Villawood, he would have a small amount of savings, having placed all of the proceeds of the sale of his property in trust for his granddaughter, and transferring his other property to his daughter, because he wanted to ensure that she had somewhere to live. He said that if his health permitted, he would try to find work in his sister’s town if he were released. He said the situation in the UK was completely unknown.
The Applicant accepted that he would need to build another network if he were to live with his sister. He said that he had a ‘close knit’ inner circle of friends in Victoria before he moved to New South Wales, but he had not stayed in contact with those friends, in particular, because they had been part of his problem with alcohol.
The Applicant had worked as a cleaner and gardener whilst in prison, and his supervisor had given a very positive report in relation to his work, and his work ethic, which was before the Tribunal.
The Applicant accepted that there would be assistance available to him if he were to be returned to the UK and that the British Consul had been in contact with him, in relation to available supports. The Applicant had also renewed his British passport. He said ‘plan for the worst, hope for the best’, and said that whatever happened ‘I’m going to try’.
The Applicant last contact with the British consulate about a month ago, although he thought that they had plans to contact him within the next few days.
DECISION
PRIMARY CONSIDERATION 1 - PROTECTION OF THE AUSTRALIAN COMMUNITY:

In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 99.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen re-offend.
I do not give weight to the Applicant’s failure to correctly fill in his arrival card forms and accept his explanation as to why he failed to fill in the forms correctly.
I accept the Applicant’s explanations in relation to his driving offence and assault conviction.
Nature and seriousness of the offending
The Applicant’s four convictions for sexual offences involving a child must be regarded as extremely serious, both because of the nature of the crimes and the length of the sentence imposed. The Applicant’s sexual offending involved a vulnerable child, a member of his family, whose trust was abused by the Applicant on a number of occasions. The seriousness of such crimes can never be downplayed.
Risk to the Australian community should the Applicant reoffend
In looking at this consideration I note the provisions of clause 8.1.2(1) of direction 99.
If the Applicant were to reoffend, there is no doubt that the consequences of reoffending are very serious, and can involve long term, indeed life long, harm to victims. The deleterious and long-lasting effects of sexual abuse on victims are well documented and well understood. In many instances the victims are robbed of the opportunity to lead a normal, happy life in the future.
The Applicant has been placed at low risk of further offending. I note the report of Ms Caroline Hare, forensic psychologist, in her report of 25 June 2021, where she classified the Applicant as being at a low level of risk of sexual reoffending as follows:
[The Applicant] does not evidence attitudes that generally condone child abuse, and I am not of the opinion that he harbours generalised sexual interest in children. Indeed, based on the static and dynamic risk assessments that I applied, I am of the opinion that [the Applicant] presents a low risk of sexual re-offending and few offence-specific treatment needs.
In addition to the above, the corrective services psychologist in their report assessed the Applicant as being in the very low risk range of committing further sex offences.
The Applicant said that he would never reoffend, and I accept that his remorse and determination not to reoffend is genuine.
Overall, despite the Applicant being at low risk of reoffending, I find that this first consideration weighs heavily in favour of non-revocation of the cancellation.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE:
There is no doubt that the Applicant’s offending falls within the definition of family violence for the purpose of Direction 99. The victim was the Applicant’s grand-daughter, and the Applicant was living with her, her mother, and her brother at the time of the offences. He was in a position of trust, which he abused over a period of some months.
Given the nature of his offending, I find that this consideration weighs heavily in favour of non-revocation of the cancellation.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA:
The Applicant has lived in Australia from the age of one. He has no familiarity with the UK, no close ties to that country, and has only visited there on two occasions as a tourist.
The only country the Applicant has ever known, or called home, is Australia. All of his siblings are here. He said that although he has family in the UK, he has no contact with them.
Both of the Applicant’s children live in Australia, as do his grandchildren, although it is highly unlikely that the Applicant will have contact with them. In this regard, I note particularly that the Applicant is the subject of an Apprehended Domestic Violence Order (ADVO) which prohibits him having any contact with his granddaughter until 2028. He has no contact with his grandchildren at this time and has only recently been in contact with his daughter. It cannot be assumed that contact with his daughter will continue, as it appears to have been initiated by her primarily for the purpose of saying goodbye and giving the Applicant a hug before he was possibly removed from Australia.
The Applicant’s brother, B has written in support of the Applicant remaining in Australia, and has said that the family will have a better opportunity of ‘closure’ in relation to the Applicant’s offending than if he were to be returned to the UK.
I accept that the Applicant has very strong ties and daily contact with his sister, M, with whom he would reside if he were to be released into the community. It is clear that M plays a significant role in the Applicant’s life and although it would be possible for her to maintain telephone contact with the Applicant if he were to be removed to the UK, it is clear that such an outcome would be likely to have serious detrimental consequences for both of them.
This is very different to the Applicant being able being able to live with M, if he were allowed to remain in Australia. Mutual support is clearly very important to both of them. This is addressed in the psychological report of Dr Caroline Hare, where it is written:
[The Applicant] may benefit from support to manage his guilt/shame relating to his offending so that he is able to reach out to, and hopefully reconnect with, his friends and family, as this will be important in mitigating his loneliness and keeping him accountable moving forward.
In my view, if the Applicant were not able to remain in Australia it would be likely to have serious detrimental consequences for both the Applicant and his sister.
I accept that the Applicant does not have, at the moment, any real contact with his nieces and nephews, or their families, although he has expressed hope of re-establishing contact with his siblings and wider family. He does not have any friends or connections to any organisations in Australia.
Given the fact that the Applicant is now 64 years old, and arrived in Australia as a very young child, with no real experience of any country other than Australia, I give this consideration very heavy weight in favour of revocation of the delegates decision.
PRIMARY CONSIDERATION 4 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA:
The Applicant has two grandchildren in Australia, B aged 11, and H aged 9.
I accept that when the Applicant was living with his grandchildren and his daughter, he played a significant role in the lives of the children. He took them fishing, and to golf, and walked them to and from school regularly. He said he did everything a grandparent would do. Since his offending, the Applicant has not had any contact with his grandchildren, and as previously noted, there is an ADVO prohibiting him from any contact with his granddaughter, B until 2028.
The Applicant gave evidence that he had very little contact with his grandnieces and grandnephews.
In many cases before the Tribunal, the best interests of minor children weigh heavily in favour of an Applicant. In this case, the Applicant’s behaviour has shattered his family and left him without ongoing meaningful contact with his grandchildren. It is highly unlikely that he will play any role in their lives, at least in the foreseeable future. I note that if the family were able to gain closure in relation to what has occurred then that is likely to be in the best interests of the children. However, there is no certainty that such closure would occur.
For there to be any chance of reconciliation with his immediate family, the Applicant himself needs to gain an understanding of why his offending behaviour occurred. At the hearing he said he did not understand why he committed the offences, and that he really wanted help to understand the reasons for his conduct. This would be an important step towards any reconciliation which must be seen as at least a possibility.
It is hard to see that it is in the best interests of the children for the Applicant to be returned to the UK, even though there may be no immediate benefit to them if the Applicant were to remain in Australia. His daughter has said that she does not care whether or not the Applicant is returned to the UK, so it is unlikely, at least in the short term that she would be seeking any form of reconciliation. She did want to see her father before he could be removed to the UK, but this does not mean she would want the children to see their grandfather, at least in the short to medium term. They may have to make up their own minds when they are much older.
At the very best the benefit to the children of the Applicant remaining in Australia is that it may assuage any possibility of the children experiencing any form of guilt, however unjustified, in relation to their grandfather not being able to live in Australia. This is especially the case if, as foreshadowed in his brother’s letter of support, a tragedy were to occur if he were removed to the UK.
Overall, I give this consideration very limited weight in favour of revocation of the delegates decision, given the nature of the Applicant’s offending and the limited prospects of closure/reestablishment of any family relationship. In making my assessment, I accept that any prospects of closure or reconciliation would be almost impossible if the Applicant were to be removed to the UK.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY:
Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are set out in direction at paragraph 8.5.
In giving weight to this consideration, I have regard to the very serious nature of the Applicant’s offending, including his abuse of trust in relation to his granddaughter. It is well known that sexual offences against children are of very serious concern to the Australian community. Particularly where it involves family members and/or abuse of trust.
The fact that the Applicant has spent all of his formative years, in fact, all but one of his 64 years in Australia, and would be removed to a country with which he has no familiarity, although there are language and cultural similarities, and some equivalence in healthcare, is also relevant in giving weight to this consideration.
After considering all of the relevant circumstances, I give this consideration moderate to heavy weight in favour of non-revocation of the cancellation.
OTHER CONSIDERATIONS – EXTENT OF IMPEDIMENTS:
As previously noted, the Applicant is currently 64 years old, and has spent the whole of his life, since the age of one, in Australia. He has no familiarity with the UK.
The Applicant said that he was in reasonable health, but that he suffers from gout, and that he has restricted movement (about 60%) in his shoulder as a result of an accident which occurred whilst he was in prison.
The Applicant has no family or support in the UK and has no idea as to whether he would be able to find employment in that country.
He said that he would look for work if he were living in Australia but did not know what would happen in the UK. The nature of the Applicant’s offending may make it more difficult for him to resettle. I also note the comments of Dr Caroline Hare, as referred to previously in these reasons.
Although the Respondent put to the Tribunal that the culture of the UK was the same as Australia, and I accept that there are clearly many similarities, it cannot be said that the Applicant would not have some difficulties in adjusting to the UK.
It would appear that he would have support through ‘prisoners abroad’ if he were to be removed to the UK, and I note that the British Consulate has been in contact with the Application in relation to the support services that would be available to him if he were to be returned to the UK.
The Applicant’s sister M is undoubtedly his major support at this time. She is in a position to offer the Applicant considerably more support if he were to be released into the Australian community and lived with her and her partner in rural New South Wales. They speak daily on the phone, and although such contact might be possible in the UK, it would be more complicated, apart from any other reason, because of time differences.
In my view the Applicant’s chances of rehabilitation and access to mental health counselling are much greater if he is to remain in Australia. His brother B hints in his letter before the Tribunal of the risk of suicide if the Applicant were to be removed to the UK. I note that the Applicant was very distressed during the hearing, and I asked him whether he was being treated for depression. He said that he was not, and that he was from a family and a generation where the expectation was that people would cope and deal with issues alone. It is reasonable to conclude that the Applicant’s mental health would be adversely affected if he were to be removed from Australia, and that he would have to wait longer before receiving treatment.
It is also relevant that the Applicant has 6 months parole to serve in New South Wales, and that proper psychiatric analysis and consideration of treatment options are part of his parole conditions. Therefore, there is some certainty that the Applicant will receive treatment if he remains in Australia, and this would not be the case if he were removed to the UK.
Overall, I give this consideration heavy weight in favour of revocation of the cancellation decision.
CONCLUSION
This is a case where the crimes for which the Applicant has been convicted are abhorrent. He has abused the trust of those closest to him, and effectively upended the lives of both his immediate and extended family.
There is some limited explanation of his behaviour in the expert reports before the Tribunal, but the Applicant himself was still searching for answers at the time of hearing, for conduct which was otherwise completely out of character. It is important that the experts agreed the Applicant was a low risk of re-offending.
Given that the Applicant arrived in Australia at one or two years of age, and only ever returned to his country of birth as a tourist, he is effectively an Australian. All of his family, whether alienated from him or not, reside in Australia.
His principal support comes from his sister, M, with whom he would live if released into the community, and on the basis of the evidence given to the Tribunal, would be able to assist the Applicant in finding suitable psychological/psychiatric treatment. In addition, the Applicant has 6 months of parole to serve if he were released into the community, and there is evidence that treatment for mental health would be part of the Applicant’s parole conditions.
Although I accept the evidence that the Applicant would receive assistance through the British Consulate and ‘Prisoners Abroad’ if he were to be returned to the UK, I am of the opinion that the support would not be the equivalent of the support he would receive in Australia, both on parole and living with his sister, M. To the extent that social isolation caused the Applicant’s offending, it is hard to see that he would not experience similar isolation if he were to be returned to the UK.
On balance, although the majority of the primary considerations weigh against revocation of the delegates decision, I find that overall, the balance is in favour of revocation.
Accordingly, the correct and preferable decision is that the decision of the delegate dated 23 February 2023 is set aside, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO

...........................[SGD]........................................
Associate
Dated: 5 May 2023

Date(s) of hearing: 27 & 28 April 2023

Applicant: In person

Solicitors for the Respondent: Hee-Jung Kim

[2023] AATA 1027

5 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Standing

Date(s) of hearing:	27 & 28 April 2023
Applicant:	In person
Solicitors for the Respondent:	Hee-Jung Kim