KMZF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 3251
•13 September 2022
KMZF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3251 (13 September 2022)
Division:GENERAL DIVISION
File Number 2022/5232
Re:KMZF
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member George
Date of Decision: 13 September 2022
Date of Written Reasons: 10 October 2022
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 21 June 2022 that the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa not be revoked under subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
............[Sgnd]................................
Senior Member George
Catchwords
MIGRATION – Cancellation of a Class BF transitional (permanent) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – offending very serious – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Alexander v Minister for Home Affairs [2022] HCA 19
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72
Cao v Minister for Immigration & Anor [2007] FMCA 225 (21 March 2007)
ENT19 v Minister for Home Affairs [2021] FCAFC 217
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Kearns v Chief of Army [2022] ADFDAT 3
Minister for Home Affairs v Buadromo [2018] FCAFC 15
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
The Queen v A2 [2019] HCA 35
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
10 October 2022
INTRODUCTION
KMZF (“the Applicant”), a citizen of Uruguay, was born in July 1945 and is aged 77 years.[1] The Applicant was accepted for immigration to Australia in July 1974, together with his spouse and three eldest children, in the then Special Passage Assistance Programme, arriving in August 1974.[2] There is no available record of the Applicant having left Australia.[3]
[1] Exhibit R1, G-Documents, G2, Attachment H, page 2.
[2] Exhibit A3, pages 139-189.
[3] Exhibit R1, G-Documents, G2, Attachment P, page 336.
On 1 September 1994, the Applicant was granted a Class BF transitional (permanent) visa.[4] On 16 February 2021, following criminal offending and a resultant term of imprisonment, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as he failed the “character test”.[5] The Applicant made representations to have his visa cancellation revoked under s 501CA of the Act on 16 March 2021.[6]
[4] Exhibit R4, G-Documents, G2, page 89.
[5] Exhibit R1, G-Documents, G2, pages 89-97.
[6] Exhibit R1, G-Documents, G2, pages 106-126; 129-140.
On 21 June 2022, a delegate was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[7] This is the reviewable decision.
[7] Exhibit R1, G-Documents, G2, page 19.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 23 June 2022.[8] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[8] Exhibit R1, G-Documents, G1, page 1.
The hearing proceeded on 25, 26 and 29 August 2022 by audio-visual means. The Tribunal was assisted by an interpreter of the English and Spanish languages.
The Applicant gave evidence on 25 August 2022. On 26 August 2022, the following witnesses gave evidence:
(a)Mr Rusty Young, a legal consultant and translator;
(b)Ms “A KMZF”, the Applicant’s wife;
(c)Ms “S KMZF”, the Applicant’s daughter;
(d)Mr “J KMZF”, the Applicant’s grandson;
(e)Ms “DRC” the Applicant’s daughter;
(f)Ms “CC”, the Applicant’s granddaughter;
(g)Mr “CC”, the Applicant’s son-in-law; and
(h)Ms “SG”, the sister of the Applicant’s son-in-law.
Closing submissions were made on 29 August 2022.
The Applicant was represented by Mr G Lombard and Mr J N Le Vay of Playfair Visa & Migration Services. The Respondent was represented by Mr M Daly of Mills Oakley Lawyers.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No. 90 (“the Direction”),[9] to revoke the cancellation.
[9] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 24 April 2019, the Applicant was convicted of five counts of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act 1900 (NSW), in the District Court of New South Wales at the Sydney Downing Centre. The sentence was subsequently quashed on appeal in the Court of Criminal Appeal of the Supreme Court of New South Wales. The Applicant was resentenced to a term of five years and six months’ imprisonment, with a non-parole period of two years and nine months.[10]
[10] Exhibit R1, G-Documents, G2, pages 42-49.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In considering whether to exercise its discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA has application.[11]
[11] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND and offending
The Applicant’s evidence is that he was born in Montevideo, in the Republic of Uruguay, in July 1945. One of three sons, the Applicant’s parents separated when he was relatively young. The Applicant was placed into an orphanage by his father, together with a brother. That brother is now deceased. The Applicant married Ms A KMZF in 1969, and they had three children in Uruguay, including his daughter Ms DRC. The Applicant’s other daughter, Ms S KMZF, was born after the family had migrated to Australia.[12] The Applicant has three minor grandchildren in Australia, none of whom he has contact with.[13]
[12] Exhibit A1, statement dated 5 August 2022; Exhibit A3, page 75-80.
[13] Exhibit R1, G-Documents, G2, page 33; Exhibit A1, page 14.
Uruguay “fell into a military crisis and a military dictatorship was established in 1973” and the Applicant feared for himself and his family.[14] After a brief period in Argentina, the Applicant successfully applied to migrate to Australia in the then Special Passage Assistance Programme, and arrived in Sydney in August 1974.[15]
[14] Exhibit A3, page 75.
[15] Exhibit A3, pages 139-189.
In the selection assessment of the then Department of Immigration, the Applicant’s expectations were described as “Appropriate and realistic” with the following comment:
Hope to be able to offer their children a better future and to live a more comfortable life.[16]
[16] Exhibit A3, page 148.
The selection assessment concludes with the final General Comment:
An average working class family who nevertheless impress with their realistic approach & knowledge of Australian conditions.
[The Applicant] has a good of experience in tannery work. Has also had experience in construction so prospects should be bright. Wife has cleft palate and thus her speech is not so distinct, however this should not influence their chances of acceptability.
In general they represent some gain & are suitable for entry.[17]
[17] Exhibit A3, page 150.
After arriving in Australia, the family first settled in Sydney and the Applicant worked for Victa Mowers.[18] The Applicant has not left Australia since his arrival.[19]
[18] Transcript, page 33, line 11.
[19] Transcript, page 182, line 4.
Of the Applicant, his wife, Ms A KMZF, said: “He was everything to me”.[20] They bought their first house in Cabramatta West in 1987 and later moved to the Gold Coast in 2000, where they had a cleaning franchise.[21]
[20] Transcript, page 118, line 5.
[21] Transcript, page 33, lines 41-47.
The Applicant and his wife eventually moved back to New South Wales from the Gold Coast, and settled in Toukley on the Central Coast.[22] Ms A KMZF currently resides at that property, and it is owned “outright”, not being subject to a mortgage.[23] That property is estimated to be worth approximately $750,000.[24] The Applicant’s daughter, Ms S KMZF, and grandson, Mr J KMZF, live nearby.[25]
[22] Transcript, page 34, line 3.
[23] Transcript, page 34, line 33.
[24] Exhibit A4, [2.5]
[25] Exhibit A3, pages 65-66.
Ms A KMZF receives an Age Pension, which would be portable to Uruguay for a period of 26 weeks were she to move there.[26] Ms A KMZF does not have any superannuation and only has a small amount of savings.[27]
[26] Exhibit A4, [2.5]
[27] Exhibit A3, page 74
Prior to his incarceration, the Applicant was able to care for his wife, Ms A KMZF. He says that she is “terminally ill” and that he assisted her to frequently attend hospital for treatment for “cataracts in the eye, cancer in the bones”.[28] Ms A KMZF’s Consultant Endocrinologist has indicated she has been suffering from Type II Diabetes and Breast Cancer since 2008, Dyslipidaemia, Hypertension, Diabetic Retinopathy, and Tachycardia, and has summarised her circumstances in the following terms:
In summary, this lady is not adhering to diabetes self-management due to cognitive impairment and depression. Her husband who used to be the main carer for her is no longer available and she is keen on staying at home in NSW with her daughter rather than with her other children. Her family is keen on her improving her diabetes control but I am not sure how we can achieve that without support and supervision from external parties.[29]
[28] Exhibit A1, statement dated 5 August 2022, page 3.
[29] Exhibit A3, page 86.
Consistent with this, Ms A KMZF’s general practitioner is of the opinion that she “is not safe to live by herself and needs someone who knows her medical conditions and who can monitor her closely for any complications”.[30]
[30] Exhibit A3, page 83.
The Applicant’s daughter, Ms DRC, gave evidence that corroborated that of other witnesses to the effect that her father had been Ms A KMZF’s carer and that Ms A KMZF was “lucky to be alive”.[31]
[31] Exhibit A3, page 63.
Relying upon resources from the Department of Home Affairs,[32] the Applicant has submitted that the likely costs of Ms A KMZF’s treatment would approximate $129,000 over three years.[33]
[32] Exhibit A5.
[33] Exhibit A4, [2.5].
It is not just Ms A KMZF who would require medical treatment if both she and the Applicant were to return to Uruguay. The Court of Criminal Appeal found that:
The Applicant suffers from diverticulitis; Type II Diabetes; high cholesterol; and hypertension. Further, he has been diagnosed as suffering from clinical depression.[34]
[34] Exhibit R4, G-Documents, G2, page 64, paragraph [48].
When the Applicant was cross-examined as to whether he could sell his house to support himself and Ms A KMZF in Uruguay, his evidence was:
Yes, but that would only last a couple of years. I mean I am just really – I’m old, I don’t have a pension. I can’t work. I have a bad back, I have a problem in the spine. I’ve actually got a paper which certifies that I am only able – or allowed – to lift 30 kilos and, you know, I pretty much was given a – I was granted a disability pension before the age pension so I would be categorised as useless there.[35]
[35] Transcript, page 55, lines 21-26.
In addition to the Applicant’s evidence about his physical health, the Applicant also gave evidence as to his need for a psychologist. The following evidence was received from the Applicant under cross-examination:
MR DALY:KMZF, you still don’t know why you indecently assaulted your granddaughter, do you?
KMZF:Psychologist or something like that dig into my brain and – merely on occasion or hundreds of occasion – yes.
INTERPRETER: I wish I had an answer for that but I don’t. Maybe a psychologist can just dig into my brain and try to help me understand why I did that, why that happened. Because the truth is that I never had that urgency before and I looked after thousands – I looked after many kids. I changed nappies, I cleaned them, all sorts of places and ways and I never did anything like that or it crossed my mind. I held them on my lap. I just don’t know what happened.[36]
[Emphasis added]
[36] Transcript, page 74, lines 43-47, page 75, lines 1-8.
The Tribunal notes the evidence of the Applicant’s granddaughter, Ms CC, who says that her grandfather “also has mental health issues and diabetes”.[37] This is a fair summary by a caring lay-person. It is consistent with the “Medical History” and “Psychological Assessment” contained in the report of Clinical and Forensic Psychologist, Dr Katie Seidler dated 29 October 2018.[38] Similarly, it is also consistent with the “Psychiatric/Medical History” contained in the report of Clinical Psychologist Dr Tracy Cahn dated 20 June 2021.[39] Dr Cahn also makes reference to “A recent loss of sexual capacity”, which the Tribunal interprets to mean sexual impotence.[40]
[37] Exhibit A3, page 59.
[38] Exhibit A3, pages 7-8; pages 11-12.
[39] Exhibit A3, pages 29-30.
[40] Transcript, page 82, lines 32-33.
Mr Rusty Young, a legal consultant and translator, conducted research into the actual state benefits that the Applicant (and, by extension, Ms S KMZF)[41] would receive were he (and, by extension, they) to return to Uruguay. Mr Young’s research was conducted by internet searches and by consulting a reputable Uruguayan law firm.[42] The issues of access to pensions and health care in Uruguay are complex.[43]
[41] Exhibit A4, [2.5].
[42] Transcript, pages 104-106.
[43] Transcript, page 212, lines 9-10.
In submissions, the Applicant has characterised Mr Young’s evidence as containing “pessimism about the likely quality of government support for returning Uruguayans”.[44] This pessimism is consistent with the advice that Ms DRC says that she received from “the Uruguayan Consul General” that the Applicant would “most probably not receive any pension [in Uruguay] because of his short working history there”.[45] It is also consistent with the oral evidence of Ms SG, noting however her lack of recent experience of conditions in Uruguay.[46]
[44] Exhibit A4, [2.5].
[45] Exhibit A3, page 63.
[46] Transcript, page 183, lines 9-10.
Prior to his incarceration, the Applicant was also able to assist Ms S KMZF, and Mr J KMZF, who lacked a father figure.[47] Ms S KMZF has asthma and is a diabetic,[48] has anxiety,[49] has schizophrenia and is dyslexic,[50] and has received treatment for a gambling addiction.[51] She has never travelled outside of Australia.[52] She is on a Disability Support Pension (“DSP”),[53] with an income of $460 per fortnight.[54] It is unclear to the Tribunal if Ms S KMZF’s DSP would cease were she to leave Australia, noting the following evidence:
DSP recipients, who remain outside Australia, on a temporary basis for more than four weeks in a rolling 12 month period, will have their payment stopped.
For example, if a DSP recipient departs Australia on a temporary overseas trip on 1 May 2015 the 12-month portability entitlement period commences from that date and ends on 30 April 2016. If the person does not depart overseas again until 20 December 2018, then the 12-month period will commence from that date. Approved temporary absences doe not count towards this 12-month rolling period.
DSP recipients with a severe and permanent disability and no future work capacity will continue to be able to apply for unlimited portability of their pension.[55]
[Emphasis added]
[47] Exhibit A1, statement dated 5 August 2022, page 3
[48] Transcript, page 132, line 20.
[49] Transcript, page 130, line 31.
[50] Transcript, page 168, line 9.
[51] Transcript, page 136, lines 30-31.
[52] Transcript, page 130, line 5.
[53] Transcript, page 130, line 15.
[54] Transcript, page 136, line 45.
[55] Exhibit A3, page 206.
The rule of indefinite portability for some DSP recipients “recognises that highly vulnerable people with a severe and permanent disability and no future work capacity may need to travel to be with their family for care and support”.[56]
[56] Exhibit A3, page 205.
Ms S KMZF and Mr J KMZF normally live together, although Mr J KMZF has stayed temporarily with Ms A KMZF “in order to provide me with physical support”.[57] Mr J KMZF, now aged 21 years old, described the Applicant’s role in his upbringing as:
Pretty much like a father: he would take me to school; pick me up from school; take me to wherever I needed to go; feed me; look after me. Just stuff like that, yes. Just like a father would.[58]
[57] Exhibit A3, page 73.
[58] Transcript, page 141, lines 35-37.
Ms S KMZF does not drive a motor vehicle due to her dyslexia and a fear of driving.[59] Mr J KMZF does not have a driver’s licence, but there are no obstacles to him obtaining one.[60]
[59] Transcript, page 131, line 32-33.
[60] Transcript, page 143, lines 11-14.
The Applicant’s son-in-law, Mr CC, described the Applicant as “The glue in keeping everyone safe and united”.[61] The Tribunal accepts this evidence as far as Ms A KMZF, Ms S KMZF, Mr J KMZF, Ms DRC, Mr CC, Ms CC and Ms SG are concerned. However, it is also evidence that sits uncomfortably with the agreed facts of the Applicant’s offending.
[61] Transcript, page 174, line 19.
It is unnecessary to detail the agreed facts of the five counts of indecent assault of a child under the age 16 years that was perpetrated by the Applicant on his then eight-year-old granddaughter.[62] These agreed facts formed the basis of the sentencing proceedings and were subsequently before the Court of Criminal Appeal.[63] A victim impact statement also formed part of the Crown Case.[64] The Court of Criminal Appeal found that “The offending conduct amounted to a reprehensible taking advantage of a child’s trusting innocence”.[65]
[62] Exhibit R3, R13, pages 31-32.
[63] Exhibit R4, G-Documents, G2, page 61, paragraph [28].
[64] Exhibit R5; Exhibit R1; Exhibit R3, R12, page 30.
[65] Exhibit R4, G-Documents, G2, page 55, paragraph [3].
It is sufficient to summarise the Applicant’s offending in the following terms:[66]
(a)Count One: the Applicant rubbed the victim’s vagina over her clothing;
(b)Count Two: the Applicant rubbed the victim’s vagina inside her clothing;
(c)Count Three: the Applicant kissed the victim with an open mouth;
(d)Count Four: the Applicant kissed and licked the victim in the area of her vagina; and
(e)Count Five: the Applicant rubbed the victim’s vagina inside her clothing.
[66] Exhibit R4, G-Documents, G2, page 60, paragraph [23].
Upon Appeal, the course of the Applicant’s offending was described in the following terms:
Count One occurred in the night or evening, during which the Applicant rubbed his granddaughter’s vagina over her clothing. Counts Two, Three, Four and Five occurred the next morning, when the victim, at the behest of the Applicant, left the bedroom, where she was sleeping with her grandmother, and went into the lounge room and lay down with her grandfather on a mattress. At that time, the Applicant committed the conduct that gave rise to the remainder of the Counts. In other words, Counts Two, Three, Four and Five are part of the one course of criminal conduct.[67]
[67] Exhibit R4, G-Documents, G2, pages 71-2, paragraph [87].
The Court of Criminal Appeal found:
After all of this occurred, the Applicant told the victim not to tell anyone about what he had done. Initially, the victim complied with that request, because she was ashamed and scared.[68]
[Emphasis added]
[68] Exhibit R4, G-Documents, G2, page 62, paragraph [35].
After initially denying the allegations, the Applicant entered a plea of guilty to each of the five Counts on the day the matter was listed for trial.[69] He was imprisoned.
[69] Exhibit R4, G-Documents, G2, pages 62-63, paragraphs [38]-[39].
On 11 October 2021, the Long Bay Parole Unit produced a pre-release report. Regarding the issue of “Sex offending”, that report states:
[The Applicant] remains perplexed as to what triggered his offending behaviour and at times appears to minimise the severity of his actions by describing it as an “accidental touch” rather than acknowledging there were multiple offences over the offending period.[70]
[70] Exhibit A3, page 45.
The Long Bay Parole Unit concluded that the Applicant “has been assessed as being in the Very Low Risk Category of further sexual offending and is ineligible for Sex Offender Programs”.[71]
[71] Exhibit A3, page 46.
This assessment of a “very low risk” is consistent with the findings of Dr Cahn, who relied upon Dr Seidler’s earlier report, conducted interviews with Ms A KMZF and Ms DRC, and applied the Static-99R and the Risk for Sexual Violence Protocol.[72] In her earlier report, Dr Seidler said of the Applicant that:
[The Applicant] could not account for his motivations in abusing the child and he described being ‘absolutely remorseful’ for what he did however, [the Applicant’s] account of this was somewhat superficial and generally self-focussed.[73]
[Emphasis added]
[72] Exhibit A3, pages 32, 40. The Tribunal also notes the Applicant’s detailed summary of psychological reports at pages 52-58.
[73] Exhibit A3, page 11.
Dr Cahn relied upon Dr Seidler’s findings and concluded that the Applicant “could not account for his motivations in abusing the child and he [described] being ‘absolutely remorseful for what he did’.”[74] Dr Cahn later concluded:
I am in agreement with the conclusions reached by Dr Seidler in her (2018) report that [the Applicant] is considered to pose a Low Risk of future sexually abusive behaviour.
[The Applicant’s] score on the Static 99R, reveals him to be in a very low risk category. This scale takes [into] account factors of age and previous criminal sexual offences. This would suggest that [the Applicant] is considered to pose a Low Risk of Future sexually abusive behaviour.[75]
[74] Exhibit A3, page 30.
[75] Exhibit A3, page 35.
Dr Cahn is of the opinion that the Applicant’s motivation to assault his granddaughter could be related to the following factors that require further investigation:
1. An inability to grasp the impact of his actions on his granddaughter.
2. A ‘curiosity’ unrelated to past sexual behaviours
3. A possibility of an Impulse Control Disorder, that would require further assessment
4. An inability to recognise or confuse sexual boundaries
5. A recent loss of sexual capacity[76]
[76] Exhibit A3, page 33.
The evidence indicates that the Applicant has an inability to accept the facts of his offending, despite declarations of remorse,[77] as demonstrated by the following dialogue:
[77] Transcript, page 61, line 44.
MR DALY:I did, KMZF, did you lick the area around your granddaughter’s vagina?
WITNESS: No. Really, what I did – I didn’t dare to go there and I was embarrassing already and I was about to give up and the only thing I did was to [kiss] her naval. The naval and it’s around the naval. But she is a person that is smaller. Is not a big human being, is small. So she made – I don’t know how the idea but I never intended to do that. I had no intention whatsoever to do that but they put it in there and stick it in there and I said, “I didn’t do that.” And they said, “Yes, you did it. Yes, you did it. Yes, yes, yes.” And that’s the way it works sometimes in the court, you know. Because they just push, push, push your truth; not my truth. Someone else’s truth because she is a victim and she said, “My son” – coach for years and years and years and the kid was absolutely believing the mother, was trying to get revenge on me. They said, “What happens?” He heard that but - - -
INTERPRETER: My son separated from his wife because we believe these days that she was influencing her and coaching her for years, made her believe these things and she actually believed them. So – and then he spoke a bit in English, as you heard, and then he go back to say he actually heard her speaking – he heard the conversation between mum and daughter and he was disgusted. He just said, “How can you – why don’t you allow her to say things the way she experienced them, her truth?” And he pretty much just was disgusted and they separated. They separated. May I add something else?
MR DALY:By all means.
INTERPRETER: And my son, we came to the conclusion that things would have turned – happened this way. He probably asked her, “What happened with you and grandpa?” And so he says, “It’s very important for you to say that because you are the youngest one and judges listen to the younger ones, the innocent, the victim.” And so that’s what happened and eventually they just wouldn’t hear me or have – listen to me. And her sister actually told her, you know, “You have – you shouldn’t fear. Nothing’s going to happen to you.”
WITNESS:Don’t be afraid, yes.
MR DALY:KMZF, you gave your granddaughter an open-mouth kiss as well, didn’t you?
WITNESS:No because she – I remember the case. So I couldn’t kiss her. It didn’t happen. She cover herself.
INTERPRETER: No, that didn’t happen. It didn’t happen like that. I remember and this is what happened. That I had the intention of kissing her on the cheek, on the side of the face and when she was laying down and I headed over to give her a kiss, she - - -
WITNESS:Stopped.
INTERPRETER: - - - covered her mouth. So I pretty much wasn’t able to either kiss her on the face or on the mouth for that matter.
WITNESS:It wasn’t intention but that’s the thing - - -
INTERPRETER: It was just the intention of it.[78]
[Emphasis added]
[78] Transcript, page 64, lines 13-46; page 65, lines 1-24.
It was open to the Applicant to accept that he had licked the area around his granddaughter’s vagina (Count Four) and given her an open-mouthed kiss (Count 3). The Applicant pleaded guilty to these offences and received head sentences of four-and-a-half years and 10 months, respectively.[79]
[79] Exhibit R4, G-Documents, G2, page 79, paragraphs [131]-[132].
That the Applicant did not unequivocally accept responsibility for his offending is of deep concern to the Tribunal. It is even more concerning that the Applicant has blamed his daughter-in-law for “coaching” the victim and for seeking “revenge”. It is not just that the Applicant has an inability to grasp the impact of his actions on his granddaughter; he has also demonstrated an inability to grasp the very facts of his offending.
The Applicant’s evidence challenges the accuracy of the assessments by Dr Cahn, Dr Seidler and the Long Bay Parole Unit. Unlike the Tribunal, they were not confronted by circumstances where the Applicant denied, rather than merely minimised, his offending, and then blamed others for his prosecution.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been convicted of five counts of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act 1900 (NSW), against his granddaughter. This was very serious conduct, which took advantage of a child’s trusting innocence, and the Tribunal considers this conduct to be reprehensible.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The victim was aged eight years at the time of the offending by her grandfather. Her age alone made her a vulnerable member of the community, as evidenced too by her initial compliance with the Applicant’s request that she not tell anyone about the offending.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[80]
[80] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
An absence of antecedents indicates that the Applicant was otherwise of good character prior to the offending courses of criminal conduct. Those two courses of conduct took place over a relatively short period of time. Nevertheless, the Court of Criminal Appeal imposed a lengthy sentence of five years and six months’ imprisonment, with a non-parole period of two years and nine months. This is reflective of the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Given the absence of antecedents, and a lack of subsequent offending, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
Given the absence of antecedents, and a lack of subsequent offending, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
This consideration is not relevant, given the Applicant’s lack of antecedents.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction concerns whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
This consideration is not relevant, as the Applicant has not re-offended.
The Tribunal does not consider any of the factors (d), (e), (f) or (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The psychological evidence of Dr Cahn and Dr Seidler indicates that the Applicant has a very low risk of sexual reoffending. This is consistent with the pre-release report of the Long Bay Parole Unit. However, the Tribunal is guarded in accepting the current accuracy of these reports, given the Applicant’s denial of his offending, and his shifting of blame for his prosecution onto the victim’s mother by alleging her coaching of the victim in an act of revenge. There is no evidence before the Tribunal to support this allegation.
For a grandfather to sexually abuse his eight-year-old granddaughter is such a reprehensible taking advantage of a child’s trusting innocence that any risk that it may be repeated is unacceptable. In circumstances where the Applicant denies aspects of his offending, and has shifted blame for his prosecution, the Tribunal regards the risk of the Applicant engaging in further criminal or other serious conduct as unacceptable. This weighs heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
The term “family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful. A non-exhaustive list of family violence includes:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, [of] his or her liberty.
Given the Applicant committed five counts of aggravated indecent assault against his granddaughter, the Applicant’s offending constitutes family violence.
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
Given the Applicant’s lack of antecedents, and a lack of subsequent offending, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.
Given the Applicant’s lack of antecedents, and a lack of subsequent offending, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
The Applicant has denied significant parts of his offending conduct, in particular Count Four. He has shifted blame for his prosecution onto the mother of the victim. Despite his expressions of remorse, the Tribunal is not satisfied that the Applicant accepts anything more than superficial responsibility for his family violence. Furthermore, the evidence before the Tribunal indicates that the Applicant has “An inability to grasp the impact of his actions on his granddaughter”.[81]
[81] Exhibit A3, page 33.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
Given the Applicant’s lack of subsequent offending, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider factors (a), (b) or (d) of paragraph 8.2(3) of the Direction apply to the Applicant’s offending or circumstances. The remaining relevant sub-paragraph (c) of paragraph 8.2(3) of the Direction weighs moderately against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs moderately against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The best interests of minor children in Australia AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(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 refuse or cancel the visa 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.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.3(4) of the Direction requires the Tribunal to consider the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
The victim is no longer a minor.[82]
[82] Exhibit A1, page 4.
The Applicant has three minor grandchildren in Australia, none of whom he has contact with.[83] As there is no evidence of a meaningful relationship between the Applicant and his minor grandchildren, the Tribunal apportions lesser weight to these relationships accordingly. Although there may be a possibility of such a relationship safely developing in due course, as considered by the delegate,[84] the current evidence before the Tribunal does not demonstrate how this is to be achieved.
[83] Exhibit R1, G-Documents, G2, page 33; Exhibit A1, page 14.
[84] Exhibit R1, G-Documents, G2, page 33.
Sub-paragraph (b) of paragraph 8.3(4) of the Direction causes a decision-maker to examine the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
Given that there is no contact between the Applicant and his minor grandchildren, the Tribunal does not envisage him playing a positive parental role in the future.
Sub-paragraph (c) of paragraph 8.3(4) of the Direction points to the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child.
Given that there is no contact between the Applicant and his minor grandchildren, on the evidence before it, the Tribunal does not assess that his past or future conduct will have a negative impact on those minor grandchildren.
Sub-paragraph (d) of paragraph 8.3(4) of the Direction causes a decision-maker to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[85]
[85] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44].
The Tribunal does not regard this consideration to be relevant, given the lack of contact between the Applicant and his minor grandchildren.
Sub-paragraph (e) of paragraph 8.3(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.
Although the evidence before the Tribunal is not specific as to who plays a parental role in the lives of the Applicant’s grandchildren, it is not in contest that the Applicant would not do so, given his lack of contact with them. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (f) of paragraph 8.3(4) of the Direction causes a decision-maker to examine any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
There is no evidence before the Tribunal as to the views of the Applicant’s minor grandchildren. Accordingly, the Tribunal does not consider this consideration to be relevant.
Sub-paragraph (g) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
The Tribunal again notes that there is no contact between the Applicant and his minor grandchildren. Accordingly, the Tribunal does not assess that the Applicant’s minor grandchildren have been, or are at risk of being, subject to, or exposed to, family violence perpetrated by him, or have otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Given the findings made in relation to sub-paragraph (g) above, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider factors (d), (e), (f) and (h) of paragraph 8.3(4) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.3(4) of the Direction, in their totality, weigh neutrally.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs neutrally.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The Tribunal has considered the Applicant’s thoughtful submissions with respect to paragraphs 5.2(5) and 8.4(2) of the Direction, Alexander v Minister for Home Affairs [2022] HCA 19, and whether double jeopardy or extra curial punishment may arise from these proceedings.[86] The Tribunal has formed the view that such circumstances do not arise.
[86] Exhibit A1, pages 20-24.
In Falzon v Minister for Immigration and Border Protection [2018] HCA 2, the majority stated at 357, [88]:
What s 501(3A) does is to require the cancellation of a visa in certain circumstances. It confers a power, which the Minister has a duty to exercise, to determine whether a non-citizen can enter, or remain in, Australia. That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.
Double jeopardy, or extra-curial punishment, does not arise as these proceedings are administrative in nature. This is not a circumstance where an administrative process may be seen to be undermining the operation of the criminal law.[87] These proceedings are a review of the merits of the delegate’s decision. As such, they are far removed from the establishing of criminal liability and the sentencing of guilt. Those are judicial functions that cannot be usurped by this Tribunal.
[87] See, for comparison, Kearns v Chief of Army [2022] ADFDAT 3, [119]-[132].
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[88]
[88] See 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.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision-maker must have regard to.
Analysis – Allocation of weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant moved Australia in 1974 and is now aged 77 years.
(b)The Applicant maintains strong family connections in Australia, although he has committed family violence.
(c)The Applicant has a reasonable employment history in Australia.
(d)The Applicant has committed sexual offences against his granddaughter, who was a vulnerable person.
(e)The Applicant has been imprisoned for his offending.
(f)The Applicant’s crimes are serious and raise character concerns.
The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations of him to obey Australian laws while in Australia by engaging in serious conduct. This weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) International non-refoulement obligations
The Applicant does not pursue claims with respect to Australia’s non-refoulement obligations.[89] However, a claim may arise from the evidence insofar that the Applicant left Uruguay in fear following the establishment of a military dictatorship there in 1973.
[89] Transcript, page 227, lines 32-33.
There is a mention in the Applicant’s evidence that para-militaries “go around taking revenge one against the other”.[90] However, it is unclear to the Tribunal if this evidence is a reflection on current day circumstances Uruguay or the prevailing circumstances of another era. Certainly, the evidence before the Tribunal is not compelling that the Applicant or any member of his family would face a current or real threat of harm in Uruguay.
[90] Transcript, page 54, lines 33-34.
Accordingly, a consideration of Australia’s non-refoulement obligations weighs neutrally.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is aged 77 years and suffers diverticulitis, diabetes, high cholesterol, hypertension, lumbar difficulties, mental health issues, and impotence. However, he remains physically and psychologically prepared to care for his wife Ms A KMZF, and his daughter Ms S KMZF.
The Applicant speaks Spanish, and the Tribunal does not assess from the evidence before it that there are any substantial language or cultural barriers to the Applicant returning to Uruguay.
The Applicant has not lived in Uruguay since 1974 and, although his social network seems limited to his family, nevertheless the Tribunal is satisfied that the Applicant would have more immediate social support available to him if released back into the Australian community than if removed to Uruguay.
The issues of the Applicant’s access to pensions and health care in Uruguay are complex. On the evidence before it, the Tribunal is not satisfied that the Applicant would have a comparable access to government-provided medical and economic support in Uruguay as compared to Australia.
The Tribunal notes that the Applicant has a substantial real estate asset in the family home. This home may need to be mortgaged or sold to provide him with a standard of living in Uruguay that he might otherwise expect in Australia. This is true too if Ms A KMZF were to join the Applicant in Uruguay if she chooses to rely upon his care during a late stage of life, noting the limited portability of her pension, and further noting that this may not be possible given her significant reliance on her current medical treatment.[91]
[91] Exhibit A1, page 19.
On balance of this consideration, the Tribunal is satisfied that the Applicant will face some impediments if removed, and therefore places moderate weight in favour of revoking the Applicant’s mandatory visa cancellation.
(c) Impact on victims
This Other Consideration 9(1)(c) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Where evidence of a victim’s views is available to the Tribunal, those views do not necessarily or always weigh against revoking the Applicant’s mandatory visa cancellation.[92]
[92] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
There is no current evidence before the Tribunal as to the views of the victim as to her views on the impact of the decision to revoke, or not to revoke, the cancellation of her grandfather’s visa. Accordingly, this Other Consideration is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2, respectively:
(a) the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.[93]
[93] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27]
The Applicant has lived in Australia with his family since 1974. This is a significant consideration.
The Applicant has an extended family, which includes the victim.
The Applicant has been of particular of support to Ms A KMZF, Ms S SMZF, and Mr J KMZF. However, that support has been limited since his incarceration and subsequent detention.
The Applicant is regarded highly, and as a cohesive force, by those members of his family who appeared to give evidence.
When able, the Applicant has maintained employment in Australia.
Given the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal places heavy weight in favour of revoking the Applicant’s mandatory visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community: weighs heavily against revocation of the cancellation of the Applicant’s visa.
(b)Primary Consideration 2 – Family violence: weighs moderately against revocation of the cancellation of the Applicant’s visa.
(c)Primary Consideration 3 – Best interests of minor children: weighs neutrally.
(d)Primary Consideration 4 – Expectations of the Australian community: weighs very heavily against revocation of the cancellation of the Applicant’s visa.
(e)Other Consideration (a) – International non-refoulement obligations: weighs neutrally.
(f)Other Consideration (b) – Extent of impediments if removed: weighs moderately in favour of revoking the Applicant’s mandatory visa cancellation.
(g)Other Consideration (c) – Impact on victims: weighs neutrally.
(h)Other Consideration (d) – Links to the Australian community: weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
The Tribunal has considered all of the Considerations in the Direction and the totality of the evidence. The combined weight of these Considerations and the evidence weigh against the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 21 June 2022 that the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa not be revoked under subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
..................[Sgnd]......................................
Associate
Date of Decision:
Date of Written Reasons:
13 September 2022
10 October 2022
Date of Hearing:
25, 26, and 29 August 2022
Solicitor for the Applicant:
Mr G Lombard & Mr J N Le Vay
Playfair Visa and Migration ServicesSolicitor for the Respondent:
Mr M Daly
Mills Oakley Lawyers
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Email trail, July-August 2022, titled: RE: URGENT - FW: KMZF v MICMSMA - 2022/5232 - Summons to produce documents – regarding a Victim Impact Statement dated 7 October 2018, which was included in the summons material provided to the Tribunal and the Applicant’s representative by the NSW Court of Criminal Appeal
R
July-August 2022
24/08/2022
25/08/2022
A1
Applicant's Statement of Facts, Issues and Contentions
A
05/08/2022
05/08/2022
25/08/2022
A2
Consolidated joint consolidated tender bundle index, with amendment to Item 6, to be annotated as: 'Statutory declaration by Daniela Castro’
A
24/08/2022
24/08/2022
25/08/2022
A3
Tender bundles of documents referred to in the consolidated joint consolidated tender bundle index, as annotated in Exhibit A2
A
Various dates
Various dates
25/08/2022
R2
Respondent’s Statement of Facts, Issues and Contentions
R
18/08/2022
18/08/2022
25/08/2022
R3
Respondent’s tender bundle
R
18/08/2022
18/08/2022
25/08/2022
R4
Section 501G Documents
R
06/07/2022
06/07/2022
25/08/2022
R5
Victim Impact Statement dated 7 October 2018, which was included in the summons material provided to the Tribunal and the Applicant’s representative by the NSW Court of Criminal Appeal
R
07/10/2018
09/08/2022
25/08/2022
A4
Closing submissions of Applicant, dated 29/08/2022
A
29/08/2022
29/08/2022
29/08/2022
A5
Notes for Guidance for Medical Officers of the Commonwealth of Australia, Breast Cancer (May
2022)A
May 2022
26/08/2022
29/08/2022
0
12
0