KMDC and Minister for Home Affairs (Migration)

KMDC and Minister for Home Affairs (Migration) [2019] AATA 4771 (14 November 2019)
Division:GENERAL DIVISION
File Number: 2019/5379
Re:KMDC
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision

Tribunal:Member Tigiilagi Eteuati
Date:14 November 2019
Place:Brisbane

The decision under review is affirmed.
...........................[sgd].............................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION
Member Tigiilagi Eteuati
14 November 2019
background

This is an application by KMDC (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 15 August 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Employer Nomination (Class EN Subclass 186) visa.
The Applicant first arrived in Australia as a resident on 12 December 2012 as the holder of a Class UC Subclass 457 Temporary visa.[1] The Applicant had visited Australia on four previous occasions as the holder of a Visitor visa. The Applicant was granted an Employer Nomination (Class EN Subclass 186) visa in late 2015 and this was the visa which was cancelled by the Minister.
[1] Exhibit R1, G Documents, G14, pages 48 – 49, Movement Records.
On 2 August 2017 the Applicant was convicted of maintaining an unlawful relationship with a child (between 29 November 2014 and 21 July 2016) and sentenced to 6 years imprisonment with a non-parole period of 15 months.[2]
[2] Exhibit R1, G Documents, G7, page 36, National Police Certificate.
On 13 September 2017, the Minister cancelled the Applicant’s subclass 186 visa under section 501(3A) of the Act.[3] The Applicant was invited to make representations about revocation of the cancellation decision. On 9 October 2017, the Department received representations from the Applicant seeking revocation of the cancellation decision.
[3] Exhibit R1, G Documents, G3, Notice of visa cancellation under s501(3A) of the Migration Act 1958.
On 13 February 2018, the Minister provided the Applicant with a copy of his criminal history record contained in a National Police Certificate dated 5 February 2018 and a copy of the sentencing Judge’s remarks for the offence for which the Applicant was convicted on 2 August 2017. The Applicant was invited to comment on this information. The Applicant has responded on a number of occasions seeking revocation and providing additional information for consideration by the Minister.
On 15 August 2019, the Minister’s delegate decided not to revoke the original cancellation decision. A copy of the reasons for that decision was given to the Applicant by hand on 22 August 2019
On 28 August 2019, the Applicant applied to the Tribunal for review of the Minister’s delegate’s decision not to revoke the original cancellation decision.
The review application was heard by the Tribunal on 4 and 5 November 2019.
For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
issues
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]-[39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
Evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A22 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R3. The evidence contained in these documents is discussed throughout these Reasons: see “Annexure 1”. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence is provided below from paragraph 37 of these Reasons.
does the Applicant pass the character test?
Subsection 501(6) relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
National Police Certificate for the Applicant dated 5 February 2018 shows that on 2 August 2017, the Applicant was convicted of maintaining an unlawful relationship with a child (between 29 November 2014 and 21 July 2016) and sentenced to 6 years imprisonment with a non-parole period of 15 months.[4]
[4] Exhibit R1, G Documents, G7, page 36, National Police Certificate.
The Tribunal is satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of at least 12 months.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (Direction 79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 of the Direction provide a framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa. The principles in paragraph 6.3 are as follows:
a)    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.
b)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
c)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
d)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
e)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
f)     Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
g)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Minister’s Department and the Tribunal and evidence given by witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant gave evidence that he and his four siblings were born and raised by his parents in a remote village in Fiji. The Applicant indicated that his family were poor with limited access to water, electricity, transport, and regular food sources.
The Applicant indicated that he did well in his studies at both primary and secondary school and that he represented his school in athletics, soccer and an oratory contest. The Applicant also indicated that he was the school captain of his school. The Applicant stated that due to financial constraints he was unable to pursue a tertiary education upon his completion of secondary school. The Applicant said that as he was the eldest child he was responsible for supporting his parents on the farm and contributing towards his siblings’ educational expenses.
The Applicant indicated that after secondary school he began working with the ANZ banking group as a teller in his home town of Sigatoka. He said that he progressed through various roles as a customer services officer, a loans manager and in 1997 he was promoted to branch manager. The Applicant indicated that in 2000 or 2001 he was offered to take up the position of branch manager with a larger branch of the bank in Labasa on the smaller of the two largest islands in Fiji, Vanua Levu. At the hearing the Applicant said that he was separated from his wife and children between 2000 and 2006 while he was working on another island on the other side of Fiji. However he said that he would visit his wife and children to a three times a year during that period.
The Applicant was married in 1990 in an arranged marriage, his daughter was born in 1991 and his son was born in 1993. During a sexual offending program which the Applicant completed while in criminal custody,[5] the Applicant reported that he had separated from his wife after 10 years of marriage as his wife struggled with their poor living conditions. The Applicant had told the program that his marriage had broken down as his wife had been unable to fulfil her role within the marriage. The Applicant told the program that he had two other romantic relationships after his marriage had ended. The Applicant told the program that he was considering re-establishing his marriage to his wife. The report prepared by the program stated (unedited):
“Group participants challenged prisoner [Applicant’s name] as to why he would be returning back to a marriage that had previously been unsuccessful.
…
The nature of this type of relationship is unlikely to result in prisoner [Applicant’s name] intimacy needs being met as the relationship is formed as an agreement rather than something that is established for love and intimacy. [Applicant’s name] is aware that his unmet intimacy needs contributed towards the sexual offending and that he needs to meet his intimacy need moving forward in order to reduce his risk of reoffending. Prisoner [Applicant’s name] will use his religion and his friendships in order to meet his intimacy needs. Prisoner [Applicant’s name] has some basic interventions to meet his intimacy needs however he should continue to explore options for meeting his intimacy needs.
Prisoner [Applicant’s name] was asked how he is currently meeting his sexual needs in prison and how he is planning to meet his sexual need once he is released into the community. Currently prisoner [Applicant’s name] reports that he is not masturbating while in custody and he is managing his needs by praying, exercising, and focusing on his religious study. When asked how this is going to be managed within the community he is planning to pray and use his religion to manage his sexual needs. Prisoner [Applicant’s name] was encourage developing alternative ways to manage his sexual needs in the community as the reliance on any one strategy to manage his needs may be unrealistic.”
[5] Exhibit A4, Medium Intensity Sexual Offending Program Completion Report.

Under cross examination during the hearing, the Applicant agreed that he had separated from his wife after 10 years of marriage as she had struggled with their poor living conditions. The Applicant agreed that he had told the program that his marriage was an arranged one rather than one born out of love. The Applicant agreed that he had told the program that he had two other romantic relationships after his marriage ended. The Applicant admitted that a major risk factor and a reason for his offending was because of his unmet intimacy needs and that he needed to meet his intimacy needs moving forward in order to reduce his risk of reoffending.
However, the Applicant later gave evidence that although he had told the program that he had separated from his wife sometime in 2000, they had only been physically separated as he had to move to another town for work. He said that in 2006 he moved back to the same island in Fiji where his wife and children lived but, as he was living in Suva and his wife and children were living in Sigatoka, they were still living a significant distance from each other. The Applicant said that from 2006 he would visit his wife and children on most weekends. He said that in 2009 his wife and children moved to Suva where they return to living together until he departed for Australia in 2012. He said that there had been no intimacy problems with his wife since 2006.
It was put to the Applicant that this explanation did not seem to be consistent with what he had said at the rehabilitation program. The Applicant then explained that when he was talking about intimacy problems during the program he had been referring to the period when he was physically separated from his wife between 2000 and 2006. Again, the Tribunal put to the Applicant that this explanation appeared inconsistent with his claims during the program that a risk factor and part of the reason for his offending was that he had not been intimate with his wife since their separation in 2000. The Applicant then appeared to change his evidence again and claimed that when he was referring to an intimacy deficit during the rehabilitation program, he was referring to the absence of his wife when he moved to Australia without his family in 2012.
The Applicant provided the Tribunal and the Department with a list of his achievements including that he won various awards during his employment at the ANZ bank, that he received a bravery award in 2002 for saving two people during a cyclone, that he had completed an advanced diploma in business studies and management, that had been actively involved in the Apex club, Red Cross and religious organisations, that he paid school fees for three children couldn’t afford to pay for their education, that he helped a number of students to financially secure their bond for study scholarships and that he was the treasurer for a provincial rugby side.
The Applicant indicated that since he had been residing in Australia from December 2012 he had worked as a sales and marketing manager, played soccer and was actively involved in religious and fundraising activities.
The Applicant indicated that there was no risk that he would ever reoffend. The Applicant provided a number of bases for this contention. The Applicant placed reliance on a Queensland Corrective Services report which provided reasons for a decision to classify the Applicant as a HIGH security classification. In that report, the author of the report indicated that the Applicant had been assessed against the STATIC-99R actuarial tool and the results of that testing placed the Applicant in the “low risk category for future sexual offending”. The delegate also indicated that the Applicant achieved an “RoR score of 1 which indicates you fall into the category of prisoners who pose a low risk of future general offending.”
The report indicated that the Applicant had positive and compliant custodial behaviour and that the delegate considered that the Applicant did not pose a risk to others or the safety and security of the corrective services facility at the time.
However, the report noted that the Applicant had not been subjected to a specialised assessment for either violence or substance abuse. In addition, in relation to the nature of the offence for which the Applicant had been found guilty the report stated:
“I considered the offences for which you are currently imprisoned to be serious and violent in nature. You have been sentenced to a total period of six years imprisonment for sexual related offences. I am of the view that your current risk is able to be managed in accordance with a high security classification.”
The Applicant also stated that he was released on bail for a year prior to sentencing, that he had not reoffended during that period, that he had been employed during that period, played soccer and engaged in fundraising activities for children. The Applicant stated that the fact that he was released on bail for a year prior to sentencing indicated that the Applicant was not seen as presenting any risk to the community. The Applicant indicated that during this period he also involved himself in religious activities. The Applicant indicated that during bail he stayed with his sister and her two children in Sydney. He said that one of the children was a minor.
The Applicant indicated that while he was sentenced to 6 years imprisonment, the fact that he was given a non-parole period of 15 months which was effectively 13 months after taking account of time served prior to sentencing, was an indication from the court that the Applicant did not present a risk to the community. The Applicant also argued that the fact that the sentencing judge did not mention that the Applicant was a risk to the community indicated that there was no likelihood that he would reoffend.
The Applicant indicated that, other than the offence for which he was convicted, he has no past criminal history. He indicated that he was extremely remorseful for his offence. The Applicant said that he had never provided any false or misleading information to government officials.
The Applicant indicated that at the time that he was convicted, “I was only a couple of months away from applying for and getting my Citizenship which I was entitled to and, had that occurred, I would not have had my visa cancelled.”[6]
[6] Exhibit A10, Applicant’s submissions dated 17 October 2019, page 2.
The Applicant indicated that he had not committed any offences while in custody and had completed vocational studies including in rural operations, hygienic practices for food safety and first-aid.
The Applicant also indicated that he had worked as an assistant cook preparing meals for correction staff which he said indicated that he did not pose any threat to correction staff.
The Applicant indicated that he had completed an intensive sexual offending program; “New Directions - Medium Intensity Sexual Offending Program” (“MISOP”). This course was completed between 29 May 2018 and 1 November 2018 and consisted of 37 sessions totalling 107 hours of treatment with no absences. The Applicant stated (unedited):[7]
“Sir, as mentioned I am very remorseful for my actions which had immense consequences on the victim and her family and also to my family. I willingly did the MISOP programme to gain maximum treatment. I also had the backing/counselling from my parents and my family. I have completed the course with had identified me as a low risk to the community.”
[7] Exhibit A11, Applicant’s submissions dated 30 September 2019.
The Applicant also appeared to suggest that a decision to remove the Applicant from Australia would call into question the effectiveness and “integrity” of the Australian corrections system, including the MISOP program, in effectively rehabilitating offenders.[8]
[8] Exhibit A10, Applicant’s submissions dated 17 October 2019, page 5.
The Applicant said that if he were returned to Fiji “I will be treated in a very ill manner”.[9] The Applicant indicated that the victim of his offending had family members and ties in Fiji and expressed that he feared retributive violence at the hands of these people if he returned. He said “Violence is virtually seen to be a culturally acceptable form of retribution and that runs parallel to the justice system. I have received verbal threats from the victim’s family”.[10] In his statement of 17 October 2019 the Applicant stated:[11]
“Sir, I have had many threats from the victim’s extended families living in Fiji and if I do get sent to Fiji, my life will be in great danger. I may not survive because of the various dangers they pose for me in Fiji. I will have a protection to worry about and my departure will be a threat to my life and I believe I am owed Australia’s protection in that case. I am not willing to put my life at risk which will obviously endanger my wife and children’s well-being and psychological state here in Australia.
…
Sir, I will be subject to various harm and retributions should I be removed and sent to Fiji. I won’t find any employment. I will also have to lead a very hard life, together with the threats of being badly harmed. This will affect my immediate family here in Australia. Fiji also has a very high rate of unemployment and the situation is currently getting worse. I do not have any support and a place to live in Fiji.”
[9] Exhibit A11, Applicant’s submissions dated 30 September 2019, page 7.
[10] Exhibit A11, Applicant’s submissions dated 30 September 2019, page 9.
[11] Exhibit A10, Applicant’s submissions dated 17 October 2019, page 4.
The Tribunal notes that in the Applicant’s written contentions the Applicant did not address the consideration of Australia’s international non-refoulement obligations. When this was raised with the Applicant’s solicitor at the hearing, the Applicant’s solicitor stated “we are not relying on the consideration, that’s correct.” The Tribunal asked the Applicant’s solicitor whether he was sure about this and the Applicant’s solicitor replied that he was. The Applicant’s solicitor did not address the Tribunal on non-refoulement obligations or any harm that may occur to the Applicant if he were to return to Fiji during his oral submissions. The Tribunal raised this, as well the Applicant’s failure to specifically address certain “other considerations”, with the Applicant’s solicitor. The Applicant’s solicitor stated:
“No, that’s not completely correct, we did touch about the impact that it would have if he is removed from Australia, and that is he has no extended close family in Fiji and when I have mentioned the employment ties, what I said was that, yes, there might be employment ties available to him in Fiji but they would not be the same as those that would be offered in Australia and I’ve drawn the - to his occupation of sales and marketing manager, the fact that that occupation in Australia is in demand by comparison to - and that is Government information. It’s classified as one of the highest occupations in demand. So, it would make little sense to remove him if he’s got skills that we would need.”
In the personal circumstances form which the Applicant completed on 21 September 2017 the Applicant did not mention retributive violence. However, he did claim that he feared returning to Fiji and stated “I will live in fear as I will be prone to attacks. I have already been robbed and bashed twice during my last visit.”[12]
[12] Exhibit R1, G17, page 66, Personal Circumstances Form.
At the hearing neither the Applicant, nor any of the witnesses, gave evidence that the Applicant would be harmed if he returned to Fiji.
The Applicant referred to statements from his family members including his wife, two children, his sister and his parents, arguing that his family members would be adversely affected by his removal. The Applicant said that if he was removed from Australia he would be unable to meet his obligations as a father to his family such as attending his children’s weddings. The Applicant indicated that meeting such obligations was particularly important in his culture.
The Applicant indicated that he believed that if he were removed to Fiji that his wife may become ill or suicidal. The Applicant said that this may impose a burden on Australian welfare. The Applicant said that his wife was becoming old and that she would need support in the future, especially after his children moved out of home.
At the hearing, the Applicant admitted that his wife and children had not spoken to him from the time he was arrested in mid-2016 until around the middle of 2019. The Applicant said that this was because his wife and children were very upset with him and embarrassed by what he had done. He said that he had contacted them in mid-2019, that they had forgiven him and that they were in the process of mending their relationships. The Applicant indicated that during his time on bail and in prison he had been supported by his parents, his sister and other extended family members. He said that his parents, including his father who was a priest in New Zealand had been providing him with counselling and spiritual guidance. The Applicant said that a decision to cancel the Applicant’s visa would have a negative impact on his parents.
The Applicant argued that he could contribute positively to Australia by marketing Australian products and therefore increasing Australian exports. The Applicant also argued that the Australian businesses where family members worked would also be adversely affected by the Applicant’s removal, presumably because the family members would be upset and that this would negatively affect the quality of their work.
The Applicant indicated that he would suffer hardship if returned to Fiji. He indicated that it would be difficult for him to find employment in Fiji given his age. He said that he would also find it difficult adjusting to life in Fiji without his family. He indicated that there was a very high unemployment rate in Fiji, that he had no place to stay, that he may be subjected to retributive violence, that there was a high crime rate in Fiji and that he may have financial difficulty.
The Applicant indicated that his wife and children may “break off” and be “emotionally drained” if he had to return to Fiji. He said that it may be difficult for them to visit him in Fiji as they may be unsafe as members of the victim’s family had threatened the Applicant.
Details of Offending
The victim’s family moved to Australia in 2013. The MISOP report indicated that the Applicant groomed the victim for some nine months prior to the unlawful relationship beginning in November 2014. The my MISOP report stated (unedited):[13]
“…Prisoner [Applicant’s name] had been friends of the victim and family when they were living in Fiji and this is part of the reason that he moved them all to Australia.
The immediate factors that contributed towards the offending behaviour increased once the victim and her family had moved to Australia. Prisoner [Applicant’s name] noticed that the victim was on Facebook late at night and he started to have concerns that she was neglecting her schoolwork and was staying up late at night talking to boys online. He initially approached the victim in front of her mother to discuss her being on the Internet late at night. He started to think that “she will be better protected under me” and saw this as a fatherly protective type of role. In addition he asked to look at the victim’s phone during the conversation as it was at this point that he discovered pornography on the victim’s phone.
Contact with the victim slowly increased with prisoner [Applicant’s name] calling the victim on her mobile phone most evenings between 9.30 and 10pm and the personal phone calls lasting about 30 minutes. As the phone calls became more frequent he used the previously discovered pornography as a way to start to discuss sexual behaviour with the victim. It was at this point prisoner [Applicant’s name] started to think“ I wonder if I can take this to the next level” “Is what I am doing right or wrong” he started to have conflicting thoughts about his intentions and his motivation started to change from a protective fatherly role to one of being a boyfriend or partner with the victim. He started to feel jealous when the victim would talk to other males and he started to feel sexually attracted to the victim, this continued with fantasies of having sex with the victim who was 12 years of age at the time. He felt fearful that he would lose his connection with the victim just like he had lost his previous intimate relationships.
…The first contact occurred at school when the victim was upset he gave her a hug and she hugged him back” He thought at the time “she felt ok and the same for me” “this could escalate to a new level” he reports feeling nervous, happy, shivering, fear and a sense of belonging. Prisoner [Applicant’s name] reports that his grooming behaviour of the victim continued to increase over this period with him helping her to study, it was during this period he considered the victim to be his girlfriend and that they were in a relationship. During the acting out period prisoner [Applicant’s name] started to encourage the victim to have sex with him once she turned 13.
[13] Exhibit A4, Medium Intensity Sexual Offending Program Completion Report, page 4.
The Respondent’s solicitor took the Applicant to police records of events leading to his conviction.[14]
[14] Exhibit R3, Summonsed Records from Queensland Police Services dated 22 October 2019.
Those records indicate that in late November 2014, when the victim was 12 years of age, the Applicant attended the victim’s home where he was drinking with her parents. The Applicant sent a text message to the victim telling her to take her bra off as he was coming to see her in her room. The Applicant entered the victim’s room and told her to lie on the bed. He pulled his pants down and took off the victim’s skirt. The Applicant then tried to insert his penis into the victim’s vagina roughly causing her pain. He was unsuccessful in doing so and left the room.
On the next occasion, the Applicant was drinking with the victim’s parents again, and he sent the victim a text message telling her to leave her door open. The Applicant entered the victim’s room, undressed her and proceeded to lick her vagina. He then penetrated her vagina with his penis before pulling out and ejaculating on the floor. He then told the victim to clean up the ejaculate and to put perfume on the rug “so it doesn’t smell.”
The Applicant admitted that the events recorded in the police records had occurred.
The police records went on to describe numerous other incidents where the Applicant would pick the child up from school after she had been dropped off and take her to various places, including a hotel, his car and his home, where he would have sexual intercourse with her.
The Respondent’s solicitor took the Applicant to a part of the police records which indicated how the Applicant had treated the victim on one occasion where he suspected her of having relations with another boy. That record provided (unedited):[15]
“He began questioning the victim about where she had been planning to go. He started asking the victim if she had slept with any-one else. The defendant took off the victim’s shirt and began checking her body for love bites. The victim was wearing her school uniform. He took off her skirt and undies and he told her to spread her legs. He was looking at her pussy and tried putting one of his fingers in. He told her he was checking if it was closed.
The victim was lying on the back seat of the car and the defendant lay on top of her. He put his dick in her pussy. The victim described that it went in roughly and he wasn’t patient. The defendant said to her ‘I think the first come went inside you?’ He then said, ’I kept it in so long, when I took it out it was still coming out’.
[15] Exhibit R3, Summonsed Records from Queensland Police Services dated 22 October 2019, page 12.

During the hearing, the Applicant admitted that he was jealous and concerned that the victim had been sleeping with someone else so he stripped her and was checking for evidence that she had slept with someone else.
The Applicant admitted that he would pick the victim up shortly after she’d been dropped off at school and returned her to school when school finished.
The sexual abuse of the child lasted from late 2014 to mid-2016, a period of about 18 months. The Applicant indicated that his wife and children arrived in Australia in February 2016 and that he had continued to abuse the child after their arrival. The Applicant admitted that, had the victim’s school not reported the victim’s absenteeism and the Applicant’s conduct been discovered, that there is a possibility he may still be in an unlawful relationship with the victim.
In sentencing the Applicant for the “very serious offence of maintaining a sexual relationship with a child under 16 years” the sentencing judge stated:[16]
“In essence, the relationship started with touching and kissing including French kissing and continued onto groping and ultimately continued on to full penile sexual intercourse. On a number of occasions you ejaculated inside the complainant which is a serious matter. No suggestion of any protection being used, and there is the risk of pregnancy and, indeed, in respect of one of the incidents particularised in respect of incident 5 you rang the complainant when, in fact, you sent the complainant a text message saying, “We need to see if you are pregnant”.
That is a particularly serious feature in this case. It is traumatic enough for a girl of that age to be having a sexual relationship way beyond prematurity and years with a much older man, but the risk of falling pregnant or the risk of sexually transmitted diseases is acute when no protection is taken. I sentence you on the basis that the complainant, it seems, after the initial touching and kissing and so forth, agreed to the conduct. She would be dropped off at school. She would then, on a prearranged meeting with you, leave school, and you would go to various places including your home, hotel rooms and, on an occasion, in the car.
Nevertheless, you were in a clear position of trust. You were a family friend. You were much older than her. Relevantly, you were between 46 and 48 years of age at the time. You should have been looking out for this young girl and protecting her from predators, not being a predator yourself, and the only reason, it seems, is that you were unsatisfied with your marital life, and you needed an outlet, and instead of seeking, perhaps, immoral but at least lawful engagement with an adult woman, you sought to commit this serious criminal offence against a young girl who, as I said, you should have been protecting.
I have had regard to the victim impact statement that shows that this has had a profound impact on the complainant is understandably it would. The law exist not only to protect young girls from predators such as you but also to protect girls from themselves. They are far too immature to make the important decision to engage in consensual sexual intercourse with all the baggage that that comes with. I do not need to go into any further details of it another than it was a sustained sexual relationship of a very young girl, and it showed considerable planning on your part, and it only came to light when the complainant’s school became concerned about her extensive absenteeism.
I accept from submissions from your barrister that not all of her absentee days were as a result of your offending, but nevertheless, it is not a case where you through remorse or realisation of what you were doing ended the relationship. No doubt, this would have continued for as long as it could have, but it came to an end because of the school’s actions….”
[16] Exhibit R1, G Documents, G8, pages 38 – 39, Transcript of Proceedings.
The Psychologist
The Applicant provided the Tribunal with a report prepared by a clinical psychologist (“the Psychologist”), regarding the Applicant’s mental health, required treatment and risk of reoffending. [17]
[17] A3, Psychological Assessment dated 30 October 2019.
The report indicated that the Psychologist was of the view that the Applicant represented a “minimal risk to the community or of re-offending in any way”.
The Psychologist report concluded:
The risks to the community are minimal to non-existent in my opinion. Mr [Applicant’s name] has excellent foundations for building his mental health. These include his wide net of sustained family support and his solid occupational history and capacity for productive work.
Mr [Applicant’s name] will need to have future and timely sessions with a Clinical Psychologists in order that he can have a sounding board and guidance regarding his on-going rehabilitation.
Mr [Applicant’s name] needs to have a comprehensive rehabilitation plan based upon biopsychosocial principles and be subject to regular monitoring in these terms.”
The Psychologist appeared at the hearing before the Tribunal by telephone. At the hearing the Psychologist indicated that there was no significant evidence of any future risk factors regarding the possibility of reoffending. He said that those absent risk factors would include intimacy deficits, prior offending, antisocial attitudes, deviant sexual interest drug use or sexual preoccupations.
The Psychologist indicated that the Applicant had strong family support and that he had participated in an intensive sex offender rehabilitation program and evidenced considerable insight and a sense of responsibility for his actions.
It was put to the Psychologist that the MISOP report had indicated that the Applicant’s primary risk factor was unmet intimacy needs whereas the Psychologist had said that the Applicant did not have any intimacy deficit. The Psychologist denied that he had said that the Applicant did not have any risk factors. Indeed, the Psychologist indicated that intimacy deficits were very common for sexual offenders and warranted a lot of attention. Contrary to his previous evidence, the Psychologist indicated that he had explored a number of risk factors relating to the Applicant and that is why he recommended an ongoing framework of rehabilitation.
It was put to the Psychologist that he had indicated that the Applicant did not display the risk factor of deviant sexual interest. The Psychologist was asked whether the Applicant having sexual relations with a child over a period of almost two years would constitute deviant sexual interest. The Psychologist replied “well, I would have thought so”.
Notwithstanding these apparent inconsistencies, the Psychologist maintained his view that the Applicant represented a “low” risk of reoffending.
The Applicant’s daughter
The Applicant’s daughter provided statements to the Tribunal in support of her father.[18] On the first day of the hearing the Applicant’s solicitor indicated that while both the Applicant’s daughter and his wife lived in Brisbane, they were both unavailable to appear in person at the hearing. The Applicant’s solicitor indicated that the Applicant’s daughter had university commitments and that his wife was working. The Applicant’s daughter and his wife attended the hearing in person on the second day of hearing. The Applicant’s daughter gave evidence before the Tribunal.
[18] Exhibit A12, Letter of Support from the Applicant’s Wife, Daughter and Son dated 25 September 2019; Exhibit A6, Statutory Declaration of the Applicant’s Daughter dated 29 October 2019.
The Applicant’s daughter indicated that she believed that the Applicant posed no threat to the Australian community and that he would never “repeat his offence”. The Applicant’s daughter indicated that if the Applicant had to return to Fiji, this would have an adverse emotional effect on members of her family.
The Applicant’s daughter indicated that she had not spoken to her father between his arrest in mid-2016 and when he contacted them in mid-2019. He said that the Applicant was trying to re-establish a relationship with her, her mother and her brother. She said that for her part, the relationship had largely gone back to normal. She said that her father had been a good father, that he had always been supportive and that he always gave her good advice.
The Applicant’s daughter said that as far as she knew her parents had never separated. She said that her father had apologised to the family for his offending and the harm that he had bought to the family. However, she said that the Applicant had never told her what he had actually done. She said that she understood that his offending consisted of one occasion where he had sexual intercourse with a 14-year-old child in his car.
The Applicant’s daughter said that if her father had to return to Fiji she would remain in Australia. She admitted that for most of the last 20 years her father had not lived with her, her brother and her mother. She said that she helped her father could stay in Australia so that they could live together as a family. She admitted that she could continue to have contact with the Applicant over the telephone and would be able to visit the Applicant although she said it was expensive to travel to Fiji. She said that in their culture it was very important for parents to be present when their children married or had their own children. She said that both she and her brother were at the stage where there were likely to be married and have children.
The Applicant’s wife
The Applicant’s wife provided statements to the Tribunal in support of her husband.[19] The Applicant’s wife attended the hearing in person on the second day of hearing. The Applicant’s wife gave evidence before the Tribunal.
[19] Exhibit A12, Letter of Support from the Applicant’s Wife, Daughter and Son dated 25 September 2019; Exhibit A5, Statutory Declaration from the Applicant’s wife dated 29 October 2019.
The Applicant’s wife said that she had been deeply hurt by the Applicant’s actions. She said that she sincerely believed that he would not reoffend and that he posed no threat to the community. She indicated that she was concerned for a husband’s well-being if he returned to Fiji. She said that if the Applicant had to return to Fiji this would have an adverse effect on her and her children which would lead to their workplaces being adversely affected.
Despite the Applicant’s solicitor having told the Tribunal that the Applicants wife could not attend the first day of hearing owing to work commitments as she worked full-time, the Applicant’s wife told the Tribunal that she was currently unemployed.
The Applicant’s wife said that her husband had been a good husband and a loving father. She said that he was loving and caring and was close to both of their children.
The Applicant’s wife indicated that the Applicant had a brother in Fiji as well as the family of his brother. She said he also had other family in Fiji but she was not in contact with them.
The Applicant’s wife said that she had no contact with the Applicant between his arrest in mid-2016 and mid-2019 when the Applicant apologised to the family for his offending. She said that she had had regular contact with her husband over the telephone since that time.
Consistent with the Applicant’s daughter’s evidence, the Applicant’s wife said that the Applicant had never told her what his offending had involved.
The Applicant’s wife said that she and the Applicant were married in 1990 and that the Applicant had left to work on another island in Fiji in 2000. She described this as a physical separation and indicated that as far as she was concerned she had never been separated from her husband other than for the period between 2016 and 2019 when she had not spoken with him. The Applicant’s wife said the physical separation in Fiji lasted between 2000 and 2009. She said the family was reunited in Suva in 2009 after which time they lived together as a family until the Applicant migrated to Australia in 2012. She said that she and her two children joined the Applicant in Australia in February 2016 shortly before his arrest in mid-2016.
The Applicant’s wife said that if the Applicant returned to Fiji she would remain here. She said that she would maintain contact with the Applicant over the telephone and by visiting him.
The Applicant’s wife said that although they had been physically separated in the past, they remained a couple and would always be intimate sexually with each other when the Applicant would visit them. She said that she was intimate with her husband during their separation from 2000 to the 2009 and that she was intimate with her husband between 2012 and 2016 when he returned to Fiji to visit them. Their intimate relationship had only ceased after the Applicant was arrested in mid-2016.
In addition to the evidence of the witnesses above, the Tribunal also took into account numerous statements made in support of the Applicant including from his sister, his parents, his cousins and a long standing acquaintance.
The Applicant also provided the Tribunal an online article from a Dr Robert Weiss entitled “Is it okay to automatically hate sex offenders?”[20] The article provided two hypothetical scenarios involving men who had downloaded child pornography and indicated that the man in one of the scenarios was more likely to reoffend than the other. The article indicated that there were five primary categories of sexual offenders with some groups more likely to reoffend than others. The Tribunal considers that this article is of no assistance to the Tribunal.
[20] Exhibit A8,
First, the Applicant was not convicted of possessing child pornography. His offences related to actually having sex with a child over a period of approximately 18 months. In addition, there is no expert evidence as to which of the five primary categories identified in the article that the Applicant may have fallen into.
primary consideration A: Protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The nature of the Applicant’s conduct and offending has been described above. The Applicant groomed a 12-year-old child for nine months before he began sexual offences against her in her own home while he was drinking with the child’s parents. For a period of around 18 months the Applicant would pick up the child from school after she had been dropped off and take her to other locations where he would have sexual intercourse with her. He would often ejaculate inside of her. On one occasion when he felt jealous because he thought that she may have been having sex with another boy he stripped her naked in his car, examining her body for evidence that she’d been having sex. He attempting to insert a finger into her vagina “checking if it was closed” before having sexual intercourse with her. Over the 18 months of the Applicant’s offending, the child victim was constantly absent from school owing in large part to the Applicant removing her from school to have intercourse with her. The offending only ceased when the school reported the victim’s extensive absenteeism and the Applicant’s conduct was discovered.
The Applicant’s conduct constituted a serious sexual crime against a female child which is considered to be very serious under the Direction.
For the purposes of these proceedings, the Tribunal is willing to treat the Applicant’s offending as non-violent.
The Applicant’s conduct was committed against a particularly vulnerable young girl which is considered to be serious under the Direction.
The Applicant received a substantial sentence of six years imprisonment which the Tribunal considers is indicative of the seriousness of his offending.
While the Applicant was convicted of one offence of maintaining a sexual relationship with a child under the age of 16, the conduct itself involved repeated instances of offending against the child over a period of 18 months. The conduct began with the Applicant grooming the child before sustaining a sexual relationship with the child for 18 months.
The sentencing judge indicated that the Applicant’s offending had a “profound” impact on the victim.
The Tribunal considers that the Applicant provided misleading information to the Department by indicating that he had no close family ties in Fiji. This is misleading as the Applicant admitted during the hearing that his brother and his brother’s family live in Fiji. However, the Tribunal places no additional weight on this as increasing the seriousness of the offending.
Paragraphs 13.1.1(1)(h) and (i) of the Direction are not relevant in this case.
The Tribunal is of the view that the Applicant’s offending conduct is very serious. The nature of the offending was that, after grooming her for a period of nine months the Applicant sexually abused a young girl by maintaining a sexual relationship with her for a period of 18 months.
After careful consideration, including consideration of the matters listed in paragraph 13.1.1(1) of the Direction, the Tribunal considers that the Applicant’s offence and conduct are very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct

The Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young girls. The effects of that kind of offending have been described by the sentencing judge as “profound” and could include severe psychological injury and potential serious physical injury.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Psychologist was of the view that the Applicant represented a “low” risk of reoffending. This assessment placed weight on the fact that the Applicant had completed the intensive MISOP program.
The Tribunal has also considered that in the security classification report, the author of that report indicated that the Applicant had been assessed using the STATIC-99R tool as falling into a low risk category for future sexual offending. The Applicant had also been assessed as posing a low risk of further general offending. The Tribunal notes that, notwithstanding these assessments, that the Applicant was assessed as not posing a risk to others within the correctional facility, and that the Applicant had been well behaved during his incarceration, Queensland Corrective Services nonetheless decided to give the Applicant a HIGH security classification owing to the serious nature of the offence committed by the Applicant.
The Tribunal has considered a number of matters which would contribute towards a finding that the Applicant’s risk of reoffending is low including that the Applicant has shown remorse, undertaken the intensive MISOP program, undertaken various vocational courses while in prison, was entrusted as an assistant cook while in prison, that he was released on bail for a year prior to being sentenced, that he did not offend during his release on bail, that he exhibited positive and compliant custodial behaviour, that he has no history of criminal behaviour prior to his offending, that he has good prospects of employment, a supportive family, that the Applicant has been counselled by his father who is a priest and that he has throughout his life performed many acts of charity and selflessness such as rescuing two lives in flooding in Fiji. The Tribunal has also taken into account the various statements in support of the Applicant attesting to his good character.
After considering the above matters, the Tribunal is willing to accept the only evidence from a psychologist which is before the Tribunal; the Psychologist’s expert view that the Applicant presents a low risk of reoffending.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offending conduct was very serious and the nature of the conduct was that after grooming her for a period of nine months, the Applicant sexually abused a young girl by maintaining a sexual relationship with her for a period of 18 months.
The Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young girls. The effects of that kind of offending have been described by the sentencing judge as “profound” and could include severe psychological injury and potential serious physical injury.
The Tribunal has found there is a “low” likelihood of the Applicant engaging in further criminal or other serious conduct.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. While the Tribunal considers that there is a “low” likelihood the Applicant will reoffend, the Tribunal does not consider this risk is insignificant given the serious harm that could result from re-offending. If the Applicant repeats his serious offending it will likely result in terrible harm to Australian children. In this case, considering: the seriousness of the conduct; the potential harm to Australian children were the Applicant to reoffend; and the ‘low’ risk of reoffending, the Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
It has never been argued by the Applicant or his solicitor that this consideration is relevant to the current proceedings. The only children who could possibly be affected by a decision not to revoke the cancellation of the Applicant’s visa are two teenage children of the Applicant’s cousin who both live in Sydney. The Applicant indicated that he has nothing to do with these children. He said he thought one of them was 16 years old but could not remember how old the other child was. The Applicant could not recall the suburb where the children resided.
In those circumstances the Tribunal considers that non-revocation of the decision to cancel the Applicant’s visa would have no material impact on the best interests of those children and the Tribunal places no weight on this consideration.
primary Consideration C: The expectations of the Australian Community
Paragraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
These principles were confirmed very recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in paragraph 6.3(5) and paragraph 6.3(7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached by the Applicant’s appalling unlawful behaviour against a young girl over a period of 18 months. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere.[21] In the present matter the Government has acted in accordance with that expectation as was required by section 501(3A) of the Act.
[21] See paragraph 6.3(2) of the Direction.
The Tribunal considers that Applicant’s sexual crime was very serious and the Direction provides that the Australian community considers that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.[22]
[22] See paragraph 6.3(3) of the Direction.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that some weight should be placed, in the Applicant’s favour, on the negative consequences of non-revocation on the Applicant’s family members in Australia.
Conclusion: Primary Consideration C
Given the serious nature of the Applicant’s offending and notwithstanding the negative effects on the Applicant’s family members in Australia if the cancellation of his visa is not revoked, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
other considerations
Paragraph 14 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)strength, nature and duration of ties
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
(a) International non-refoulement obligations and risk of harm to the Applicant
As mentioned above, in his written statements to the Department and the Tribunal the Applicant indicated that he feared retributive violence by the victim’s family members in Fiji. He had also indicated to the Department that he had been beaten and robbed on the last occasion that he was in Fiji.
However, all claims to fear harm in Fiji were abandoned at the hearing. The Applicant’s written contentions did not address the consideration of Australia’s international non-refoulement obligations. When this was raised with the Applicant’s solicitor at the hearing, the Applicant’s solicitor stated “we are not relying on the consideration, that’s correct.” The Tribunal asked the Applicant’s solicitor whether he was sure about this and the Applicant solicitor replied that he was. The Applicant’s solicitor did not address the Tribunal on non-refoulement obligations or any harm that may occur to the Applicant if he were to return to Fiji during his oral submissions. The Tribunal raised this, as well the Applicant’s failure to specifically address certain “other considerations”, with the Applicant’s solicitor. The Applicant’s solicitor stated:
“No, that’s not completely correct, we did touch about the impact that it would have if he is removed from Australia, and that is he has no extended close family in Fiji and when I have mentioned the employment ties, what I said was that, yes, there might be employment ties available to him in Fiji but they would not be the same as those that would be offered in Australia and I’ve drawn the - to his occupation of sales and marketing manager, the fact that that occupation in Australia is in demand by comparison to - and that is Government information. It’s classified as one of the highest occupations in demand. So, it would make little sense to remove him if he’s got skills that we would need.”
In addition, during the hearing, neither the Applicant, nor any of the witnesses gave evidence that the Applicant would be harmed if he returned to Fiji.
Notwithstanding that the Applicant abandoned any reliance on Australia’s international non-refoulement obligations or that he feared any harm if he returned to Fiji, the Tribunal has considered these matters out of an abundance of caution.
The Tribunal is not satisfied that the Applicant received any threats from family members of the victim or anyone else. The Applicant provided no evidence of when the threats occurred, the substance of the threats or who had made the threats. The Tribunal finds that the Applicant has fabricated this claim in order to bolster his chances of success before the Tribunal.
Similarly, the Tribunal does not accept that the Applicant was robbed and bashed on his last visit to Fiji. The Applicant only made this claim in his response to the mandatory cancellation of his visa. The claim was not repeated in any subsequent statements made by the Applicant to either the Department or the Tribunal. Again, there are no details of this claim, when it occurred or what was taken from the Applicant. The Applicant has not put any country information, police reports or other evidence before the Tribunal to support his claim. The Tribunal notes that the Applicant’s solicitor, in his written contentions provided excerpts from the Department of Foreign Affairs and Trade: Fiji Country Brief which outlined Fiji’s recent political history but provided nothing of relevance in relation to the Applicant’s feared harm in Fiji.
The Tribunal is satisfied that there is no real risk that the Applicant would suffer any harm if he were returned to Fiji.
Accordingly, the Tribunal also finds that Australia does not have international non-refoulement obligations in respect of the Applicant.
In these circumstances, the consideration of Australia’s international non-refoulement obligations, and the consideration of any harm that the Applicant may face if returned to Fiji, do not weigh in the Applicant’s favour in this matter. They are neutral considerations.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia as a resident in December 2012. He was 44 years of age at the time. He has lived in Australia ever since, although he has made frequent visits to Fiji. The Applicant became a permanent resident between September and November 2015. His offending began in November 2014, less than two years after arriving as a resident and before he became a permanent resident in late 2015. The Applicant has made a positive contribution to the community through stable employment, undertaking business in Australia and various sporting, religious and charitable activities. However, this contribution has been to a large degree counterbalanced by the negative effects on the community of his offending.
The Tribunal accepts that the Applicant has strong family ties to Australia, most notably to his wife and two children and his sister. The Applicant also has a number of extended family members in Australia, friends and acquaintances. The Tribunal has considered the impact of a decision not to revoke the cancellation of the Applicant’s visa on his family members in Australia.
The Tribunal notes that the Applicant has only resided with his wife and two children for three or four years since 2000 or 2001. The Applicant, his wife and two children lived together between 2009 and 2012 in Fiji before he migrated to Australia. The Applicant’s son is now 26 years old and his daughter is 28 years old. The Applicant has only very recently re-established contact with his wife and two children after having lost contact with them in mid-2016 when he was arrested for his offence. The Applicant had no contact with his wife or two children in the year he was released on bail prior to being convicted on 2 August 2017.
The Tribunal has taken into account the wishes of the Applicant’s family members in Australia, including his wife and two children, that the Applicant be allowed to remain in Australia. The Tribunal accepts that the Applicant’s wife and two children would like the Applicant to remain in Australia with them. The Tribunal accepts that all of the Applicant’s family members in Australia, and especially his immediate family members would be adversely affected if the Applicant were not allowed to remain in Australia. The Tribunal acknowledges that the removal of the Applicant from Australia may prevent the Applicant from fulfilling cultural parental obligations such as attending the weddings of his children and the birth of any grandchildren. The Tribunal has taken into consideration that none of the Applicants family members are willing to return with the Applicant to Fiji.
The Tribunal does not accept the Applicant’s contention that his wife would become ill and suicidal if he were removed from Australia. The Applicant’s wife did not have any contact with the Applicant between mid-2016 and mid-2019, has decided to remain in Australia if the Applicant is removed and did not tell the Tribunal that she would become ill or suicidal if her husband were removed.
The Tribunal finds that the Applicant’s family members will be able to maintain contact with the Applicant by telephone and visits. The Tribunal notes that this is the way that the family members have maintained contact with the Applicant for most of the last 20 years.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction provides:
Impact on Australian business interests if the noncitizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In his written statements the Applicant indicated that Australian business interests would be negatively impacted if he were removed from Australia. He said that his family members would be upset by his absence and suggested that this would affect their performance at work, thereby negatively impacting the businesses where they worked. The Tribunal rejects this argument. The Applicant’s wife is currently unemployed and does not have a business. His daughter has yet to undertake full-time employment. The Applicant’s son appears to continue to function well in his position, so much so that he decided not to attend the hearing, even by telephone, owing to work commitments.

The Applicant also indicated that he could contribute positively to Australia by marketing Australian products and thus increasing Australian exports. The Applicant’s solicitor, in his written submissions indicated that the Applicant was highly employable. At present, the Applicant is not contributing anything to Australian businesses or business interests and the Tribunal does not consider that non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4 of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victim of the Applicant’s behaviour and her family members. In these circumstances, the Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) Theextent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    The non-citizen's age and health;
b)    Whether there are substantial language or cultural barriers; and
c)    Any social, medical and/or economic support available to them in that country.
The Applicant is a man of 51 years of age. There is no evidence that the Applicant suffers from any significant medical condition. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in Fiji. As a citizen of Fiji, the Applicant will be entitled to any social, medical and economic support available to Fiji and citizens in Fiji.
The Applicant was born and raised in Fiji, has a brother residing there and worked for over 25 years there. He has said that he has a number of friends in the banking industry in Fiji although he is not currently in contact with them. Before his arrest, the Applicant visited Fiji multiple times every year since he became a resident in Australia. He was last in Fiji in April 2016, shortly before his arrest.
The Applicant has always been gainfully employed in Fiji including in senior management positions with ANZ bank for most of his career. As just mentioned, he still has friends within the banking industry in Fiji. The Applicant has also attained some tertiary level qualifications. The Applicant has also provided evidence that he is well integrated within the Fijian community having been a member of various sporting, religious and charitable organisations there.
The Tribunal finds that the Applicant is well-placed to re-establish himself in Fiji including by finding employment or operating a business in Fiji. As the sentencing judge remarked of the Applicant “clearly, you are a man with talent and energy and ability.”[23] The Tribunal does not accept the Applicant’s assertion that he will find it difficult to find employment owing to his age and high unemployment rate in Fiji. Indeed, at the hearing the Applicant’s solicitor made the following submission to the Tribunal in relation to the Applicant’s employability in Fiji:
“we did touch about the impact that it would have if he is removed from Australia, and that is he has no extended close family in Fiji and when I have mentioned the employment ties, what I said was that, yes, there might be employment ties available to him in Fiji but they would not be the same as those that would be offered in Australia.”
[23] Exhibit R1, G Documents, G8, Transcript of Proceedings, page 3.
As the Tribunal has found that the Applicant should have no problems supporting himself in Fiji, the Tribunal does not accept that the Applicant will suffer significant financial difficulty or that he will have no place to stay there. In the absence of any evidence, the Tribunal is unwilling to find that there is a high crime rate in Fiji, and even if there was, the Applicant has not reported that any members of his family have been the victims of crime while they were residing in Fiji. The Applicant made a claim in response to the cancellation of his visa that he was bashed and robbed on his last visit to Fiji but this has been rejected by the Tribunal. In addition, the Applicant was quite happy to leave his wife and children to live separately from him in Fiji, both while he was residing in Fiji and when he came to Australia. In those circumstances, the Tribunal does not accept that the Applicant has any serious fears of being the victim of crime in Fiji.
The Tribunal accepts that the Applicant will be upset that he is not able to remain in Australia with his other family members but notes that the Applicant has decided to be absent from his wife and two children for most of their lives and would be accustomed to living away from them. As mentioned above, he will be able to maintain contact with them as he has done over a period of years, that is, through telephone calls and visits (that is, the family members visiting the Applicant in Fiji or possibly, New Zealand).
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes low weight to this consideration in the Applicant’s favour.
Hardship to the Applicant
The Tribunal has also considered the effect of non-revocation on the Applicant in addition to impediments to re-establishing himself in Fiji. The Tribunal considers that the non-revocation of the cancellation of the Applicant’s visa would have a negative effect on the Applicant. In all likelihood the Applicant will never be able to return to Australia, where most of his family members live. The Applicant will not be able to attend family functions in Australia including any family gatherings here, Australian weddings, or the births of any children in Australia.
In addition, it is also possible that the cancellation of the Applicant’s visa and his removal from Australia may prevent the Applicant from visiting other countries including New Zealand, where his parents reside. However, the Tribunal considers that it is more likely that the Applicant’s conviction for a very serious child sexual offence is more likely to prevent the Applicant from entering other countries rather than the cancellation of his visa in Australia.
The Tribunal has also considered the Applicant’s claims that his ageing parents would suffer hardship as they would no longer be able to visit the Applicant in Australia. While that is true, there does not appear to be any reason why the Applicant’s parents could not visit him in Fiji.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes low weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that the Applicant’s offences were very serious and that there would be great harm to Australian children if they were repeated. The Tribunal has also found that the primary consideration of the expectations of the Australian community weighs significantly against revoking cancellation of the Applicant’s visa, notwithstanding the hardship to family members that non-revocation would cause and the short period of time that the Applicant has spent contributing positively to the Australian community.
On the other hand, the Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the Applicant and his family members will be adversely affected if the cancellation decision is not revoked. Finally, the Tribunal has found that the considerations of the extent of impediments if removed and hardship to the Applicant each weigh in favour of revocation of the cancellation decision and attributed low weight to these considerations.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.............................[sgd]......................................
Associate
Dated: 14 November 2019

Date of hearing:

4 and 5 November 2019

Solicitor of the Applicant:

Mr Ruslan Ahmadzai

Solicitor for the Respondent:

Mr Matthew Hawker

Sparke Helmore Lawyers

ANNEXURE 1: EXHIBIT REGISTER

File No             2019/5379
Between           KMDC (Applicant)
And                   Minister for Home Affairs (Respondent)
Heard on          Monday 4 and Tuesday 5 November 2019
At  Brisbane
Before              Member T Eteuati

EXHIBIT

DESCRIPTION OF EVIDENCE

R1

G Documents received 13 September 2019 (Paged 1 – 143)

R2

Beenleigh District Court summonsed records dated 22 October 2019

R3

Queensland Police Service Summonsed Records dated 22 October 2019

A1

Statement of Facts, Issues and Contentions dated 30 October 2019

A2

Transcript of criminal proceedings dated 2 August 2019

A3

Psychological Assessment dated 30 October 2019

A4

Medium Intensity Sexual Offending Program Completion Report dated 21 January 2019

A5

Statutory Declaration of Applicant’s wife dated 29 October 2019

A6

Statutory Declaration of Applicant’s daughter dated 29 October 2019

A7

Copies of Passports of Applicant’s wife and daughter

A8

Article titled ‘Is it OK to Automatically Hate Sex Offenders?’ by Dr Robert Weiss, dated 24 December 2016

A9

Various Medical and Clinical documents

A10

Applicant’s Submissions dated 17 October 2019

A11

Applicant’s Submissions dated 30 September 2019

A12

Letter of Support from the Applicant’s wife, daughter and son dated 25 September 2019

A13

Support Letter from Applicant’s parents dated 12 October 2019

A14

Support Letter from Applicant’s sister dated 9 October 2019

A15

Letter of Support from Applicant’s acquaintance dated 25 September 2019

A16

Support Letter from Applicant’s cousin dated 8 October 2019

A17

Security Classification regarding the Applicant from Queensland Corrective Services dated 10 October 2018

A18

Notice of completion of Certificate III in Rural Operations dated 20 July 2019

A19

Statement of Attainment in SITXFSA001 ‘Use hygienic practices for food safety’ dated 16 May 2018

A20

Statement of Attainment in HLTAID003 ‘Provide first aid’ dated 25 September 2017

A21

Australian Citizenship Certificate for Applicant’s cousin dated 26 January 2010

A22

Australian Citizenship Certificate for Applicant’s sister dated 27 September 1972

[2019] AATA 4771

14 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

EXHIBIT	DESCRIPTION OF EVIDENCE
R1	G Documents received 13 September 2019 (Paged 1 – 143)
R2	Beenleigh District Court summonsed records dated 22 October 2019
R3	Queensland Police Service Summonsed Records dated 22 October 2019
A1	Statement of Facts, Issues and Contentions dated 30 October 2019
A2	Transcript of criminal proceedings dated 2 August 2019
A3	Psychological Assessment dated 30 October 2019
A4	Medium Intensity Sexual Offending Program Completion Report dated 21 January 2019
A5	Statutory Declaration of Applicant’s wife dated 29 October 2019
A6	Statutory Declaration of Applicant’s daughter dated 29 October 2019
A7	Copies of Passports of Applicant’s wife and daughter
A8	Article titled ‘Is it OK to Automatically Hate Sex Offenders?’ by Dr Robert Weiss, dated 24 December 2016
A9	Various Medical and Clinical documents
A10	Applicant’s Submissions dated 17 October 2019
A11	Applicant’s Submissions dated 30 September 2019
A12	Letter of Support from the Applicant’s wife, daughter and son dated 25 September 2019
A13	Support Letter from Applicant’s parents dated 12 October 2019
A14	Support Letter from Applicant’s sister dated 9 October 2019
A15	Letter of Support from Applicant’s acquaintance dated 25 September 2019
A16	Support Letter from Applicant’s cousin dated 8 October 2019
A17	Security Classification regarding the Applicant from Queensland Corrective Services dated 10 October 2018
A18	Notice of completion of Certificate III in Rural Operations dated 20 July 2019
A19	Statement of Attainment in SITXFSA001 ‘Use hygienic practices for food safety’ dated 16 May 2018
A20	Statement of Attainment in HLTAID003 ‘Provide first aid’ dated 25 September 2017
A21	Australian Citizenship Certificate for Applicant’s cousin dated 26 January 2010
A22	Australian Citizenship Certificate for Applicant’s sister dated 27 September 1972