Kalubuth De Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1848
•22 June 2021
Kalubuth De Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1848 (22 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2122
Re:Neranjan Agrajith KALUBUTH DE SILVA
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:22 June 2021
Place:Sydney
The original cancellation decision is affirmed.
...................................[sgd].....................................
Senior Member M Griffin QC
Catchwords
MIGRATION – mandatory cancellation of visa – Partner (Temporary) (Class UK) Visa (Visa) – where visa was cancelled under section 501(1) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – lack of remorse – refusal to accept responsibility – best interests of minor children - expectations of the Australian community - links to the Australian community – impact on Australian business interests – original cancellation decision affirmed.
Legislation
Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501E
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
22 June 2021
1. The Applicant seeks review of a decision of the Respondent by his Delegate made on 28 March 2021 to refuse to grant a Partner (Temporary) (Class UK) Visa (Visa) under subsection 501(1) of the Migration Act 1958 (Cth) (the Act). Both the Applicant and the Respondent have set out in tables a comprehensive list of facts leading to this decision. The facts are largely not in dispute and insofar as they relate to earlier contact between the Applicant and the Minister, those matters are irrelevant for the purpose of this decision, except when the Tribunal makes specific reference to the relevance of those matters.
FACTS
2. Set out below is an extract of relevant facts taken from the table of facts compiled by the Respondent:
Date Event/Offence 28 September 1987 The Applicant is born in Colombo, Sri Lanka 8 February 2007 The Applicant arrives in Australia on a Student (Temporary) (Class TU) visa 27 April 2011 The Applicant is found guilty in the Brisbane Magistrates Court of:
· Unauthorised Dealing With Shop Goods
He receives a fine and no conviction.
31 August 2012 The Applicant is granted a Skilled (Provisional) (Class VC) visa 18 July 2013 The Applicant applies for a Remaining Relative (Residence) (Class BU) visa and is granted an associated Bridging (Class WB) visa 5 August 2016 The Applicant's Bridging (Class WB) visa is cancelled under paragraph 116(1)(e) of the Act, on the basis that his presence in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. 17 August 2016 The Applicant is detained under section 189 of the Act following the cancellation of his Bridging (Class WB) visa 22 August 2016 The Applicant applies for a Bridging (subclass 050) visa E 24 August 2016 The Applicant's Bridging (subclass 050) visa E is refused by the Department 26 August 2016 The Applicant lodges a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa, on the basis of his relationship to an Australian citizen 28 August 2016 The Applicant's combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa is deemed invalid by the Department 15 September 2016 The Applicant commences judicial review proceedings in the Federal Circuit Court in relation to the Department's decision that his combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa is invalid 27 September 2016 The Applicant lodges an application for a Bridging (Class WE) visa
Date Event/Offence 29 September 2016 The Department refuses the Applicant's application for a Bridging (Class WE) visa, on the basis that the delegate was not satisfied the Applicant would abide by the conditions of that visa The Applicant applies for review of the Department's decision to refuse his application for a Bridging (subclass 050) visa E in the Administrative Appeals Tribunal 7 October 2016 The Administrative Appeals Tribunal remitted the decision to refuse the Applicant's application for a Bridging (Class WE) visa to the Department with a direction that the Applicant meets the criteria for grant of that visa 11 October 2016 The Applicant is granted a Bridging (Class WE) visa.
On the same day, the Applicant's Bridging (Class WE) visa is cancelled under paragraph 116(1)(g) of the Act pursuant to regulation 2.43(1)(p)(ii) of the Migration Regulations, on the basis of his criminal charges.
12 October 2016 The Applicant seeks review of the Department's decision to cancel his Bridging (Class WE) visa in the Administrative Appeals Tribunal 18 October 2016 The Applicant lodges a further combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa Partner (Combined) (Subclass 820/801) visa application 21 October 2016 The Administrative Appeals Tribunal affirms the Department's decision to cancel the Applicant's Bridging (Class WE) visa 31 October 2016 The Applicant withdraws his judicial review proceedings in relation to the Department's decision that his combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa is invalid 9 December 2016 The Applicant's further combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa Partner (Combined) (Subclass 820/801) visa application is refused by the Department on the basis that the criteria are not met 16 December 2016 The Applicant seeks review of the Department's decision to refuse his further combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa Partner (Combined) (Subclass 820/801) visa application in the Administrative Appeal Tribunal 15 February 2017 The Applicant is granted a Criminal Justice Stay (Class ZB) visa (CJSV) and released from immigration detention 20 March 2017 The Administrative Appeals Tribunal remits the decision to refuse his further combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa Partner (Combined) (Subclass 820/801) visa application back to the Department, with a direction that the Applicant meets the criteria of the Partner (Temporary) (Class UK) visa 27 June 2018 The Applicant is convicted in the Brisbane District Court of:
· Rape
He is sentenced to 18 months imprisonment, suspended to be of good behaviour for 18 months after serving six months.
Date Event/Offence 4 July 2018 The Applicant's Partner visa application is referred for a section 501 consideration due to the Applicant's criminal history 5 July 2018 The Applicant appeals his conviction of, and sentence in relation to, rape, in the Supreme Court of Queensland. 16 October 2018 The appeal against the Applicant's conviction is dismissed. The appeal against is sentence is allowed, set aside and reduced to 18 months imprisonment, suspended after serving six months 13 November 2018 The Applicant submits an application for Special Leave to appeal to the High Court of Australia in relation to his conviction for rape 13 December 2019 The High Court of Australia dismisses the Applicant's appeal of the decision of the Supreme Court of Queensland 20 December 2018 Queensland Police cancel the Applicant's Criminal Justice Stay Certificate (CJSC) because the Applicant is due to be released from prison. The associated CJSV is cancelled by operation of law. The Acting Director of Public Prosecutions Queensland issues a CJSC in relation to the Applicant on the basis that his temporary presence in Australia is required for the purposes of the administration of criminal justice 24 December 2018 Upon release from prison, the Applicant is detained under section 189 of the Act as an unlawful non-citizen following cancellation of his CJSV. 10 January 2019 A delegate of the Minister refuses to grant the Applicant a CJSV in association with his CJSC, on the basis that the delegate considered that he did not meet the criteria set out in paragraphs 158(b)(i) and (iii) of the Act, particularly due to his conviction for rape and 18 month prison sentence. 18 March 2020 The Applicant is informed of the Department's intention to refuse his Visa under s 501 of the Act 28 March 2021 A delegate of the Respondent makes a decision under section 501 of the Act to refuse the Applicant's application for a Visa 31 March 2021 The Applicant is notified of the decision to refuse his Visa application under section 501 of the Act 8 April 2021 The Applicant lodges an application for review of the decision to refuse the Visa Evidence produced by the Respondent
3. The Respondent produced Exhibits A and B at the commencement of the hearing. Objection was taken to the material by the Applicant and further submissions were made on the day following the hearing which continued the objections initially raised. The Tribunal allowed cross-examination of the Applicant on these documents. The Tribunal accepts the Applicant’s submissions and considers those exhibits inadmissible against the Applicant as they contain no material relevant to the Respondent’s case against the Applicant. The Tribunal, therefore, gives no weight to Exhibits A and B in these proceedings.
ISSUES
4. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.
5. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.
RELEVANT LEGISLATION AND POLICY
6. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
7. Section 501CA(4) provides that:
(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.
8. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
9. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.
10. The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.
11. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
12. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));
(b)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 (paragraph 5.2(2));
(c)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 (paragraph 5.2(3));
(d)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. However, Australia may 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 (paragraph 5.2(4));
(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).
13. Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.
14. Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).
(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).
(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).
15. These principles are of course dependent upon the facts and circumstances of each case.
16. The primary considerations are:
(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)The best interests of minor children in Australia (Primary Consideration 3); and
(4)Expectations of the Australian community (Primary Consideration 4).
17. The Tribunal must also take into account other considerations insofar as they are relevant.
18. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
THE CHARACTER TEST
19. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record" as defined in s 501(7) of the Act.
20. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
21. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.
EXERCISING THE DISCRETION
22. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.
Primary Consideration 1 – Protection of the Australian community
23. Paragraph 8.1 of Direction No. 90 provides:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
24. Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant's conduct to date
25. Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):
(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
26. Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Seriousness of offending and future risk
27. Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
28. The Applicant was convicted of the offence of rape and sentenced on 27 June 2018. An appeal against conviction was unsuccessful both in the Queensland Court of Criminal Appeal and the High Court, although the Appeal Court varied the sentence to 18 months imprisonment. This is an indication of the level of seriousness of offending.
29. Prior to the Commission of this offence, the Applicant was found guilty of unauthorised dealing with shop goods which resulted in a fine. This offence, in the Tribunal’s view, has minimal relevance but cannot be ignored as it is the first offence which the Applicant committed and was followed by numerous traffic offences, 36 in all which resulted in fines and suspensions and one disqualification of the Applicant's licence.
30. The traffic offending history demonstrates that the Applicant persistently refused to obey the rules and regulations in relation to driving and furthermore, the traffic history itself demonstrates a lack of regard for the safety of other road users and the community in general.
31. As to the offence of rape, the circumstances were set out by the sentencing judge:
The rape involved digital penetration of the complainant, who, at the relevant time, was someone that you did not know well but was sleeping over at a mutual acquaintance's apartment. You were aware that she was intoxicated and she had fallen asleep. You, believing her to be asleep at the relevant time, penetrated her vagina by putting your hand inside her underpants and penetrated her vagina with two fingers. On the evidence, that penetration was quite brief. The complainant at the relevant time was, in fact, not asleep and immediately objected and jumped up and started yelling and screaming and demanding that you leave, and you, in fact, did leave shortly thereafter.
On those brief facts, it is quite apparent that you took advantage of a vulnerable woman, she being vulnerable for two reasons: (1) that she was affected by alcohol, and (2) that you believed her to be asleep at the time…This, of course, is a serious matter. The charge of rape is well-accepted to be a serious charge…
…the fact that you have pleaded not guilty to this charge is relevant when determining the appropriate degree of leniency that should apply on sentence. You have demonstrated no remorse whatsoever for your conduct, and, in fact, during the course of the trial it was suggested to the complainant that she had deliberately fabricated a false complaint because you rejected her advances, something which the jury clearly rejected. Of course, you have not cooperated with the administration of justice, another relevant consideration.
32. Objectively, in accordance with Direction No. 90, the sexual assault of digital penetration, referred to in Queensland as the offence of rape, is properly regarded as a particularly serious offence, made the more so because the victim was thought to be asleep at the time. This is not an offence where the two parties began consensual sexual activity which was taken beyond consent by the offender. The circumstances whereby the Applicant took advantage of the intoxicated victim make this offence subjectively serious.
33. It is particularly concerning, in the Tribunal’s view, that the Applicant in the past has refused to accept responsibility for his offending or indeed, even accept that he offended at all.
34. At G 2, page 166, the Applicant stated:
Even though I'm innocent, I take full responsibility for my actions in this situation
and it's lead-up, and have learnt some very tough lessons. I was only 27 and naive
and irresponsible, but I never intended to hurt anyone in anyway. My bad habits
and the company I kept at the time put me in to social situations that I should have
avoided in the first place. I'm utterly remorseful for everyone I've hurt along the way,
especially my loved ones … I have had a lot of time to reflect on myself and my
past bad judgements, and I have changed my life for the better. I have grown
patient and learnt to act responsibly by always thinking about how my actions will affect other people.
35. In the Applicant’s evidence and at the time of hearing, the Applicant appeared to change his position slightly in terms of acceptance of his criminal conduct. Although the Applicant accepts the consequences to himself and his family of conviction for the offence of rape, the Applicant does not actually accept that he committed the offence. The Tribunal is of the view that the Applicant’s earlier stated refusal to accept responsibility for his conduct by claiming his “innocence” is his real position.
36. As to the assessment of risk of future offending, the Tribunal takes into account the protestations of innocence by the Applicant and his consequential refusal to accept responsibility for his criminal offending. That is of concern to the Tribunal in terms of real and demonstrated rehabilitation. Furthermore, such refusal to accept responsibility for the rape offence raises doubts, not only as to real rehabilitation but also the possibility of future offending.
37. The Tribunal will deal with this in more detail below.
38. In the Applicant’s words quoted above, the Tribunal notes that the Applicant asserts that he has rehabilitated, that he has insight into past offending and that he impliedly will not offend in the future. Furthermore, the Tribunal recognises that there is a powerful reason for the Applicant not to offend in the future should he be allowed to remain in Australia because future offending would carry with it the certainty of the loss of his visa. The Tribunal takes this into account as a strong motivation not to offend in the future.
39. The Tribunal also accepts that there is no evidence that the Applicant has undertaken any preventative or rehabilitation courses.
40. The question of future risk of the Applicant offending assumed enormous importance in these proceedings. The Applicant's family and associates provided evidence and some, including his sister, mother and female partner, gave oral evidence on this topic. All attested to his good character and the fact that they had noticed an enormous change in his attitude and effectively that he was unlikely ever to commit an offence in the future. There is no reason to disbelieve their genuine belief in the opinions expressed, particularly Miss Auty, the Applicant’s partner, who has had virtual daily contact with him and says that he is a changed person in manner and attitude. The Applicant himself gave evidence to the same effect.
41. It is to be noted, however, that many of those who speak well of the Applicant, of the changes observed in him, his rehabilitation and the prospect of him never committing an offence in the future, also believe that he is not guilty of the offence of rape. This needs to be taken into account in an evaluation of their opinions.
42. There is compelling evidence which is objective and which suggests rehabilitation. The time spent by the Applicant both in prison and in immigration detention is regarded as exemplary by the Tribunal. The Applicant is held in high regard by authorities in immigration detention, he has been selected to fulfil an important representative role in the administration of Christmas Island and, in fact, he was instrumental in assisting authorities during riots on that island.
43. The Applicant has not undertaken any rehabilitation courses, and/or sexual offender courses whilst in custody or immigration detention.
44. The Applicant, as stated above, has sworn that he is a changed person, in particular, that he no longer associates with those people with whom he associated at the time of his being charged with rape and that he no longer drinks alcohol which, in any event, was somewhat aberrant behaviour. The Tribunal accepts these statements.
45. The learned Sentencing Judge and, it may be inferred, the Court of Appeal likewise, accepted that the offence of rape was out-of-character behaviour for the Applicant. Whilst this is so, the Tribunal recognises the Applicant was not a first time offender, having committed the offence of shop stealing in 2011 and otherwise did not have an unblemished record with regards to his traffic history which self-demonstrated a worrying disregard for the rules and regulations relating to road users and drivers of motor vehicles. In fact, that history was lengthy and led to a disqualification of licence.
46. It was argued by the Applicant that there were two factors to be taken into account that related to views formed by both police and the Deputy Director of Public Prosecutions as to the risk of future offending by the Applicant. These were statements made in the course of legal proceedings and were contained in Criminal Justice Stay certificates for the purpose of the continuation of a stay visa. The Queensland Police information and assertion in relation to risk was prior to the Applicant's conviction in the Brisbane District Court. The Deputy Director of Public Prosecutions provided a statement and answered certain questions in relation to the certificate on 20 December 2018, the day the Queensland Police cancelled the Applicant's Criminal Justice Stay certificate.
47. It might be inferred that there were fundamental administrative reasons for the cancellation and subsequent approval of a new certificate by the Acting Director of Public Prosecutions of Queensland in those circumstances, including the Applicant’s need to be present in Australia on account of his application for Special Leave to appeal to the High Court.
48. Be that as it may, the basis upon which the Acting Director answered the question for the purpose of the certificate as to whether the Applicant posed a risk of future offending was answered to the effect that the Court of Criminal Appeal, in dealing with the Applicant's sentence, did not regard the Applicant as a risk of future offending. This assertion by the Acting Director is patently erroneous. The Court of Appeal, in dealing with the Applicant's application for leave to appeal against sentence was dealing with the question of whether the sentence was excessive. There was no consideration given expressly to the question of future risk although of course, in any sentence, consideration by a court at nisi prius or on appeal, the risk of misconduct in the future is not an irrelevant consideration. The Court of Appeal was not dealing with the Queensland serious sexual offender legislation which specifically focuses upon risk of future offending. A fair and beneficial re-reading of the leading judgement and with whom the other members of the Court agreed, goes no further than an analysis of the error in calculating the Applicant’s proper sentence imposed by the primary judge. Nothing in the Court’s judgement deals in any meaningful or detailed way with risk of future offending.
49. The submissions, therefore, advanced by the Applicant in relation to the Queensland Police’s attitude to risk and the Acting Director of Public Prosecutions expression of future risk carry little weight in the Tribunal’s opinion.
50. The Applicant’s representative properly pointed out that should the Applicant be released into the community that there are protective factors including importantly, his family, who will be able to assist and control the Applicant in the community. The Tribunal notes, however, that these factors, that is, his family's interest and concern for him being protective factors were present prior to his commission of the offence and indeed also had no sway with him during the time he was committing traffic offences.
51. The Tribunal accepts that the period spent by the Applicant both in prison and in immigration detention has operated, to use the Applicant's own words ‘as a wake-up call’ and is, therefore, a factor which the Tribunal takes into account on the issue of rehabilitation in the Applicant's favour.
52. The Tribunal notes the following letter sent to the Presiding Magistrate who dealt with traffic infringements by the Applicant in 2016. The full text of the Applicant’s statement to the Magistrate is as follows:
I am writing to express my regret at actions regarding the matter before the court and provide indication of my attempts for restoration. There are no excuses for my actions and I accept full responsibility for what I have done.
I've worked hard for many years, through study and my career, and have never been in trouble with the police. I am a caring man, with a wonderful family and great friends whom look up to me. I would never want to be a bad influence on them, however I recognise I have been a bad role model through my conduct. I am embarrassed and regret what I have done. It was humiliating for me to tell my family and partner about this incident, and to see the look of disappointment on their faces.
I have since come to understand the impact upon my loved ones of my decision to drink drive and the danger in which I exposed myself and others to.
I realise that my behaviour was not acceptable and have since engaged with a private psychologist to address my stress with work and personal troubles which I believe to be a lead cause of drinking.
I understand the inflammatory role alcohol has played in my mismanagement of difficult situations and have remained abstinent since the incident and fully intend to maintain this.
I meet with my psychologist on a monthly basis to develop a better understanding of the approach I have taken in the past to manage my stress, and to develop more acceptable responses. I am confident that with this advice, I will be able to make better decisions and learn to control my impulses.
I wish to express my heartfelt remorse and request to consider alternatives to a custodial sentence for the reasons I expressed above. I am willing to accept reasonable alternatives that permit me to continue to develop my skills to ensure there is no risk of future incidents.
53. The Tribunal notes the sentiments expressed by the Applicant in this letter and further notes that these are relevantly identical to the Applicant's submissions made in the present case. As to the question of rehabilitation, the Tribunal notes that following the expression of these sentiments, the Applicant went on to commit the serious offence of rape in 2018.
54. Evidence was produced by tendering a report by a psychologist and she gave evidence at the hearing.
55. The psychologist administered a test instrument described as a risk assessment instrument and scored the Applicant according to that instrument. The Applicant’s representative relied heavily on the score which suggested a virtual negligible risk of offending. The ultimate submission made by the Applicant’s representative was that the Applicant presented an acceptable risk, at the highest, and sought to persuade the Tribunal that, on the evidence, future offending was effectively non-existent or extremely minimal. On much of the material, this submission is an attractive one.
56. Returning to the evidence and the report of the psychologist, although the psychologist said that the risk assessment was predicated on the basis that the Applicant had accepted his offending behaviour, the report given by the psychologist did not deal with the impact of the Applicant's refusal to accept that he had committed the offence of rape. The psychologist accepted that remorse was an important factor in the consideration of risk. However, when asked about the relevance to the question of risk of someone who would not admit the commission of the offence, the psychologist could only say that there were “too many different factors to take into account” and could not proffer any useful opinion as to the impact or effect overall as to the question of risk.
57. Furthermore, it was quite apparent not only from the psychologist’s report but also from her evidence, that she personally harboured some doubts concerning whether the Applicant had actually committed the offence and in this way, the Tribunal was of the opinion that her report was flawed fundamentally by that partiality to the Applicant, siding with him as she appears to have done in his protestations of innocence.
58. The Tribunal is of the view that because of the last matter stated above and also because the psychologist was unable, or unwilling to calculate the effect of non-acceptance of criminal behaviour by the Applicant into the entirety of her expressed opinion, little weight should be attached to the opinions expressed by the psychologist in her report.
59. As to the question of risk of future offending, the Applicant’s representative referred to statements made by Justice Matthews in relation to remorse. Of course, that case may be readily distinguished on the basis that the Applicant/offender in this case refuses to accept his criminal offending.
60. It may be accepted that the Applicant is remorseful for what has happened to himself and how that has impacted on himself, his loved ones, his fiancé and his life in general, including his businesses. That however, in the Tribunal’s opinion, based upon the Applicant's evidence both in a documentary way and in his oral evidence, is as far as the Applicant's remorse extends. The Applicant made it perfectly clear in evidence that he did not accept the commission of the offence and it flows from that he has no remorse whatsoever for the commission of that offence.
61. It is necessary to be particularly careful about the question of remorse. These are not punitive proceedings. Lack of remorse was properly taken into account by the Sentencing Judge in terms of penalty but that lack of remorse has no place in these proceedings in a punitive sense. However, it is clear enough to the Tribunal’s mind and furthermore, it is generally accepted, that there is a direct relationship between lack of remorse and the potential for future offending.
62. The evidence in these proceedings is that the Applicant does not nor has he demonstrated any remorse relevant to the commission of the offence of rape. He is absolutely unrepentant, even given the opportunity by the Tribunal in the absence of any relevant witnesses who could have heard him express remorse.
63. It was pointed out to the Applicant by the Tribunal that some offenders refuse to accept responsibility for offending on the basis of embarrassment either to themselves, to others, or where acceptance of responsibility for offending may damage relationships. The Applicant did not move from his stated position.
64. There is a great deal of evidence which is favourable to the Applicant on the question of risk of future offending, some of which has been dealt with above. What overwhelms and neutralises any acceptable evidence of risk favourable to the Applicant, in this case, however, is the refusal by the Applicant to accept that he offended. The magnitude of that refusal cannot be underestimated, in the Tribunal's opinion, and in the end result, whatever can be said of the Applicant’s good behaviour, rehabilitation, good intentions and positive expressions by those who know him, including family, is entirely negated by his refusal to accept responsibility for his offending.
65. In the result, the Tribunal has come to the conclusion that it is not satisfied that the Applicant is not a risk of future offending although it is impossible to place any particular standard on that apart from the expression which has been set out above.
66. What remains, therefore, in terms of the evaluation of Primary Consideration 1, is the seriousness of the offending. It was a single offence committed against a victim whom the Applicant had come to know briefly. It was committed in circumstances where others were present in the household although there were no observers to the offending behaviour. The Applicant denied that he was affected by alcohol although this may be doubted. It is clear enough that the victim was affected by alcohol and therefore she was in a vulnerable position. The Applicant took advantage of this, and the fact that although she was not asleep, the Applicant believed her to be, and placed his hands inside her underpants and briefly affected digital penetration with two fingers. Although this may be considered to be a prelude to more extensive sexual activity, it is unnecessary to consider this when assessing the seriousness of the offending. There was no violence perpetrated against the victim and the Applicant desisted immediately on being challenged by the victim.
67. Significantly, in assessing the offending, the Tribunal takes into account the lack of remorse and the fact that the Applicant has refused to admit his offending. This is, in the Tribunal’s view, an important consideration in the overall consideration of the seriousness of offending.
68. Ultimately, the Tribunal is of the view that this offending is at a level of such seriousness that it must weigh extremely heavily against the Applicant.
69. In the result, taking all the relevant evidence into account which relates to the notion of future risk and particularly noting, as discussed above, the Applicant's continued protestations of innocence, the Tribunal is not satisfied that the Applicant will not commit offences in the future.
Primary Consideration 2 – Family violence committed by the non-citizen
70. Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
71. Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
72. Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
73. Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
74. There is no evidence to indicate that this consideration has relevance in this matter.
Primary Consideration 3 – Best interests of minor children in Australia
75. Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.
76. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).
77. Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
78. Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
79. The Applicant asserts that there are three minor children who are relevant to this consideration. They are the two children of his sister, A, 4 years, and K, 1 year, and the Applicant also claims to be the uncle of his sister-in-law’s baby daughter.
80. The Applicant himself has no minor children, and in relation to those of his siblings, the Applicant claims to have a close relationship particularly with his niece whom he says he has visited from her birth.
81. Although the Applicant has been in prison and detention since 2018, on the evidence, the Tribunal accepts that he has had very regular contact with his family and there is no reason to suppose that he does not wish to continue a relationship with all his nieces and nephew. It is proper to assume that the children will, to varying degrees, even now appreciate their uncle and his presence in their lives. It is in the best interests of all the minor children that the Applicant remains in Australia. Likewise, should the Applicant be removed, there is no reason to doubt that the Applicant will suffer the loss of those minor children in his life.
82. The Tribunal notes that there are parental figures in the lives of those minor children. Nonetheless, it is clearly in the best interests of the minor children that their uncle remain in Australia and, to that extent, this consideration weighs in the Applicant's favour.
Primary Consideration 4 – Expectations of the Australian community
83. Paragraph 8.4(1) of Direction No. 90 provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
84. Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
85. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
86. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
87. This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.
88. It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
89. In this case, not only has the Applicant committed an offence but that offence is a serious sexual offence. The Applicant has lived in Australia for approximately 14 years, since the age of 19, which is a relevant factor in the Applicant’s favour and the weight to be given to this consideration.
90. The fact that the Applicant has, prior to the sexual offence for which he was sentenced in 2018, a history of committing traffic infringements and had been found guilty in 2011 of a minor property offence is another factor to be taken into account.
91. Paying particular regard to the serious sexual offence committed by the Applicant, the Tribunal is of the view that this consideration bears real weight against the Applicant.
OTHER CONSIDERATIONS
92. A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
International non-refoulement obligations
93. The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.
(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
94. There is no evidence that this consideration is relevant.
Extent of impediments if removed
95. Paragraph 9.2(1) of Direction No. 90 provides:
(1)Decision-makers must consider the extent of any impediments that the noncitizen 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.
96. The Applicant is 33 years of age and there is no evidence that he is or suffers from any ill-health. It is undoubted that the Applicant would suffer significant emotional, social and even economic consequences should he be removed to his country of origin not least because he has lived in Australia for 14 years since he was 19 years of age.
97. An impediment to the removal of the Applicant from Australia is that the Applicant's partner, who would travel with him to Sri Lanka, would have to leave the care of the partner’s aged an unwell mother.
98. His business interests and those of his partner with whom he conducts those business interests, will no doubt suffer should he be returned to Sri Lanka.
99. Having lived in Australia for so long, there is the real likelihood that the Applicant will suffer consequences from language and cultural matters that would necessarily attend an absentee of 14 years. It may be that the social, medical and economic support available to the Applicant will be less attractive then the same standards in Australia. It is a fair assessment of the prospects of removal from Australia and consequent impediments of return to Sri Lanka that this consideration weighs in the Applicant's favour.
Impact on victims
100. Paragraph 9.3(1) of Direction No. 90 provides:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…
101. There is no evidence that this consideration is relevant.
Links to the Australian community
102. Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.
9.4.1. The strength, nature and duration of ties to Australia
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
103. The Applicant has resided in Australia since he was 19 years of age, as a young adult, which the Tribunal accepts is a considerable period of time and provides a positive argument for real weight to be attached to this consideration.
104. Furthermore, all the Applicant’s family live in Australia, including minor children with whom the Tribunal accepts the relationship between the Applicant and those children is a positive one and that those minor children's interests would be best advanced by the Applicant remaining in Australia. The Applicant's partner lives in Australia and both she and the Applicant care for the partner’s aged and unwell mother.
105. It may be supposed that the Applicant's entire life is now settled in Australia with his family, partner and friends.
106. The many testimonials provided by family and friends as to the Applicant’s good character and the regard in which he is held demonstrate the close ties that the Applicant has to Australia and a number of people in Australia.
107. It is accepted that the Applicant has been involved in many charitable works in Australia and has participated personally in those and also been involved in sporting activities.
108. The Applicant’s considerable business interests, although recently affected to some extent by his imprisonment, have been in Australia and it may be accepted that he would continue to increase and expand successful business interests in Australia which, no doubt, would have had the consequences of employing Australians in those businesses.
109. All of these matters go to a conclusion that this consideration, in the Tribunal’s view, weighs heavily in the Applicant's favour.
9.4.2 Impact on Australian business interests
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
110. The Tribunal considers that although there is no impact on major business to the Australian community, the Tribunal does, however, consider that the entrepreneurial skills and the business and management skills of the Applicant are a relevant consideration and that these will be impacted by possible deportation. This is a consideration which is both personal to the Applicant and affects his fiancée, and in this regard, this consideration weighs in the Applicant’s favour.
CONCLUSION
111. Despite the many factors and considerations which weigh in the Applicant's favour and the considerable weight given to those factors and considerations, these are greatly outweighed, to the Tribunal's mind, by the magnitude and seriousness of the commission of the sexual offence for which the Applicant was convicted, by real concerns as to the Applicant’s refusal to accept responsibility for that offence, and the consequences which flow in terms of rehabilitation and risk assessment of the Applicant for future criminal conduct of a similar sexual kind. The expectations of the Australian community, in the Tribunal’s view, also weigh heavily against the Applicant.
112. In the result, the Tribunal is entirely satisfied that the correct decision is that the original decision cancelling the Applicant’s visa should remain.
Order
113. The original cancellation decision is affirmed.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
....................................[sgd]....................................
Associate
Dated: 22 June 2021
Date(s) of hearing: 10 June 2021 Solicitors for the Applicant: Mr Ray Turner, Turner Coulson Immigration Lawyers Solicitors for the Respondent: Ms Emma Letcher-Boldt, Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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