LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 255
•18 February 2021
LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 255 (18 February 2021)
Division:GENERAL DIVISION
File Number: 2019/7117
Re:LDDW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 18 February 2021
Place:Melbourne
The Tribunal affirms the reviewable decision.
........[sgd]................................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – Visa cancellation – citizen of El Salvador – non-revocation of mandatory visa cancellation – Class BF Transitional (Permanent) visa – sexual offending against a child – failure to pass character test – Part C of Ministerial Direction No. 79 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)Sex Offenders Registration Act 2004 (Vic)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CPJ16 v Minister for Home Affairs [2020] FCAFC 212
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139
EZC18 v MHA [2019] FCA 2143
EZC18 v MHA [2019] FCCA 464
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
LDDW v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] AATA 60
Murphy v Minister for Home Affairs [2018] FCA 1924
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR
MZAAJ v MIBP [2015] FCA 478
MZAAJ v MIBP [2015] FCCA 151
PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 485
R v Leask [2013] WASCA 243
Re Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
SZSPT v MIBP [2014] FCA 1245Varley and Minister for Home Affairs [2019] AATA 376
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
Sentencing Advisory Council, ‘Imprisonment,” < Salvador, updated 22 September 2020, Smartraveller <
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as modified by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October I967).
International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature I0 December 1984, (entered into force 26 June 1987)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
18 February 2021
The Applicant seeks review of a decision, made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa (the visa).
The hearing was held in Melbourne on 3 February 2021. The parties appeared by audio- visual link in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was self-represented. The Minister was represented by Mr Kim, a solicitor from Clayton Utz.
For the following reasons, the Tribunal affirms the reviewable decision.
APPLICANT’S IDENTITY
Pursuant to s 35 of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act), the Tribunal, differently constituted, ordered that the Applicant’s identity not be published. Having regard to the specific circumstances of this case, including past sexual offending against a child, the Tribunal considers it appropriate to continue the confidentiality order and refer to the Applicant by the anonym LDDW. Certain details will be redacted, including the identity of witnesses and other names and information tending to identify LDDW, his victim and other family members.
BACKGROUND
The Applicant is a citizen of El Salvador who migrated to Australia under his sister’s sponsorship in mid-1984.[1] He was then almost 13 years of age. The Applicant undertook secondary schooling in Australia to Year 12[2] and has since been constantly employed.[3] In 1990 he married a Salvadoran woman and they had three children. Two of their children are now adults and the youngest is a teenager.[4]
[1] Exhibit R1, 58; 95.
[2] Ibid, 472 [40].
[3] Ibid, 218; 473-475.
[4] Ibid, 476 [35].
The Applicant separated from his wife in late 2017 and their divorce was finalised in 2019.[5] He claimed that, in the context of their separation, his wife threatened to disclose his indecent acts against their 14-year-old daughter in 2004.[6] She confronted him about this conduct when it occurred 13 years previously and the Applicant admitted to touching their daughter ‘on the wrong parts,’ but the marriage continued.[7]
[5] Ibid, 478 [25].
[6] Ibid, 273; 283.
[7] Ibid, 48 [21]; 119 [21]; 283; 485 [5]-[10].
On 24 January 2018, the Applicant told police that 14 years earlier he committed multiple indecent acts involving his daughter.[8] He made admissions during a police interview on the same day and was charged.[9] His daughter, then 27 years of age, also made a statement to police,[10] as did his wife.[11]
[8] Ibid, 273-274; 283.
[9] Ibid, 289.
[10] Ibid, 302-307.
[11] Ibid, 308-312.
On 18 December 2018, the Applicant was convicted in the Sunshine Magistrates’ Court of six counts of Indecent act with child under 16 and one count of Solicit under 18 for indecent act.[12] He was sentenced to four months’ imprisonment followed by an 18-month Community Corrections Order (CCO).[13] He was also subjected to lifelong reporting obligations under the Sex Offenders Registration Act 2004 (Vic).[14]
[12] Ibid, 28; s 60 Crimes Act 1958 (Vic).
[13] Ibid, 49 [23]-[25].
[14] Ibid, 50 [3]-[5].
On 20 March 2019, while he was serving a fulltime sentence of imprisonment,[15] the Applicant was advised about the mandatory cancellation of his visa under s 501(3A)(a)(ii) of the Act (cancellation decision).[16] In response to an invitation from the Minister, the Applicant made representations advancing reasons why the cancellation decision should be revoked.[17]
[15] Ibid, 85.
[16] Ibid, 78-83; 210.
[17] Ibid, 91-94; 98-122; 211-234.
After completing his sentence in April 2019, the Applicant was taken into immigration detention where he has remained while his applications before the Tribunal and Federal Court of Australia have been considered.
On 24 October 2019, the Minister refused to revoke the cancellation decision under the power conferred by s 501CA(4) of the Act. The Applicant was advised of this in a letter dated 25 October 2019 (non-revocation decision).[18]
[18] Ibid, 11-14.
On 1 November 2019, the Applicant asked the Tribunal to review the non-revocation decision,[19] but on 23 January 2020 the Tribunal, differently constituted, affirmed it;[20]
[19] Ibid, 5-10.
[20] LDDW v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] AATA 60.
The Applicant sought judicial review in the Federal Court of Australia. On 28 September 2020, Steward J set aside the Tribunal’s decision by consent of the parties, giving rise to these proceedings.[21]
[21] VID131/2020 dated 28 September 2020.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment. The character test is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to. Section 501(6)(e) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
Section 501(6)(e) was introduced when the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The Explanatory Memorandum stated:
‘The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test. Currently, such offences may be considered under subsection 501(6) of the Migration Act when deciding whether a person fails the character test, but this amendment removes the subjectivity from this assessment in cases where the person does not fail the substantial criminal record test in subsection 501(7) because a sentence of imprisonment of at least 12 months has not been imposed.’
…
Under s 501CA(3) of the Act the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg. 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Under s 501E(1) of the Act, visa cancellation precludes a person within the migration zone from applying for, or obtaining, certain other classes of visa. Under s 501E(2) of the Act, however, the preclusion does not apply to applications for a Protection Visa or a Bridging Visa pending a person’s removal. Refusal of a Protection Visa application, or cancellation of a Protection Visa, precludes a further Protection Visa application, subject to the favourable exercise of a Ministerial public interest discretion: ss 48 and 48B(1) and (1B) of the Act.
DIRECTION NO. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[22]
[22] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:
…
(2) … A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
By way of general guidance, cl 6.2 of the Direction provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) …
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to under the heading ‘General Guidance’ are reproduced below and constitute a framework within which decision-makers apply relevant considerations:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that, in cases relating to a mandatory visa cancellation, decision-makers ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction are to be applied:
(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.
Clause 14(1) of the Direction states that other considerations must be taken into account where relevant, which 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.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘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.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78]:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The power to cancel the Applicant’s visa arose because of his convictions on 18 December 2018 of sexual offences involving a child, and because at the time of cancellation he was serving a full-time sentence of imprisonment. The Tribunal finds the Applicant does not pass the character test; and accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision under s 501(3A) should be revoked. As Beach J held in BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21]:
19. Now there is a wide decisional freedom as to whether there is satisfaction that a claimed “another reason” for revocation was such a reason. Further, to be satisfied is to feel an actual persuasion of the requisite matter. But if there is no relevant satisfaction then the cancellation decision could not be revoked.
…
21. Put slightly differently, in the present context the power to revoke under s 501CA(4)(b)(ii) a cancellation decision is subject to an implied condition that the state of satisfaction concerning whether there is “another reason” is to be formed on the basis of findings of fact that are reasonably or rationally open to be made on the evidentiary materials before the decision-maker, whether directly or inferentially.
EVIDENCE
On 15 January 2021 a Telephone Directions Hearing (TDH) was conducted to inquire into the Applicant’s non-compliance with scheduling orders made by the Tribunal on 13 November 2020. Under those scheduling orders, the Applicant was required by 11 January 2021 to lodge with the Tribunal and give to the Respondent any witness statements and other evidence on which he intended to rely at the hearing, as well as an outline of submissions.
No documents were lodged by the Applicant on or before 11 January 2021; and he did not contact the Tribunal to explain his non-compliance or seek leave for later filing. An email sent to the Applicant on 12 January 2021 asking for an explanation for the non-compliance was not responded to.
At the TDH on 15 January 2021 the Applicant advised he did not wish to lodge any further materials. He explained that everything he wished to submit was already contained in the materials lodged for the first Tribunal hearing on 9 January 2020 and with the Federal Court for his appeal.
At the current hearing the only documents taken into evidence were those lodged by the Respondent, numbering 742 pages.[23] These include the Applicant’s previously lodged documents, a transcript of the first hearing, records obtained under summons, and the Applicant’s medical records from the International Health and Medical Services (IHMS),[24] which were requested by the Tribunal during the hearing.
[23] Exhibit R1.
[24] IHMS provides primary and mental health care services within the Australian immigration detention network.
Applicant’s Evidence
The Applicant adopted the statements and other materials he previously submitted as true and correct.[25] His oral submissions centred on being given another chance to remain in Australia. The Applicant stated: ‘I know in the eyes of the law I’m a threat to the community and minors, but I’m not. I’ve owned up to my mistake and all I’m asking for is a second chance to prove myself, to have a normal life…and to re-build my relationship with my kids’. He claimed to have learned his lesson and said that if released, one of his ‘first priorities’ was to undertake the rehabilitation and other conditions mandated by his 18-month CCO. The Applicant’s evidence is summarised as follows:
[25] Ibid, 52-55; 57-73; 92-94; 98-115; 116-122; 218-234; 338-340; Emails dated 23 December 2019 between 2:43pm and 6:16pm.
(a)The Applicant lived in El Salvador for the first eight or nine years of his life and said he was the youngest of 12 children. He referred to difficult circumstances early in life, including inattentive parents, which required him to fend for himself and sleep at his grandfather’s house.[26] He claimed in written evidence that while living in El Salvador as a young boy, he saw two of his brothers ‘shot in the head’.[27] The Applicant later clarified that he did not personally witness the shootings, but observed the deceased bodies of his brothers after they were delivered in coffins to his grandfather’s house;
[26] Exhibit R2, 493 [33]-[40].
[27] Ibid, 494 [22].
(b)The Applicant claimed that in or about 1980, his mother took him and one of his sisters to Costa Rica, where they were placed in the care of an older, married sister.[28] He subsequently lost contact with his parents and other siblings in El Salvador and claimed to have received advice that his parents died.[29] He is unaware of what became of his other siblings. The Applicant said he attended school in Costa Rica ‘for about two years’ before migrating to Australia in mid-1984 under his elder sister’s sponsorship.[30] He was almost 13 years of age on arrival and confirmed he has not left Australia since.[31] After completing high school he reported being continuously employed;
[28] Exhibit R1, 469 [40].
[29] Ibid, 494 [25].
[30] Ibid, 232.
[31] Ibid, 95-97.
(c)The Applicant said his older sister and two nieces live in Melbourne while his younger sister lives in a regional town in another state. He last communicated with his younger sister about two weeks ago on social media. He could not recall when he last saw her, stating it was ‘a long time ago…probably five years.’ He claimed, when previously at liberty in the community, to have visited his older sister and her husband in Melbourne monthly. He did not ask his sisters or other relatives and friends to provide statements because he did not want to bother them. The Applicant acknowledged that supportive statements would have been helpful, but decided to ‘deal with [his] problems and issues [him]self;’
(d)When asked about the 2019 statements from his ex-wife and eldest son, the Applicant said his eldest son was the only one he kept in touch with by telephone and social media. He had not spoken to his ex-wife, daughter or youngest son since his statement to police and subsequent arrest over three years ago. He said that his ex-wife was the ‘last person’ he wanted to speak to, because she was the reason he was detained, simply for ‘wanting to have a different life to the one [he] had with her.’ The Applicant recounted his belief that it was a dispute about his wife’s gambling and loss of a business vehicle and ‘day job because of her,’ that led to their separation, divorce, and her threat to reveal ‘what happened in 2004.’ In the context of their separation, the Applicant claimed his ex-wife wanted his assets, including ‘all my superannuation money,’ which then amounted to about $144,000. After their divorce, he said that he retained the superannuation funds for himself. When he last checked the account about five months ago, the balance was approximately $104,000. When asked how in such circumstances his ex-wife agreed to lodge a supportive statement for him in 2019, the Applicant said he approached his eldest son who then approached his ex-wife, who provided the statement;
(e)The Applicant expressed his love for his youngest son who is 13 years of age and undertook his first year of high school in 2020. He wanted to be there to play a more prominent parental role and provide his son with emotional and financial support. The Applicant claimed his son’s ‘disability with learning’ would ‘require a lot of help’. When put to the Applicant that the evidence did not disclose his son suffered a continuing developmental disability, the Applicant responded: ‘Not in the sense of a disability but having a father to talk to and provide financial support.’ When asked how he would advance his aspiration to play a more prominent parental role in his son’s life, the Applicant said he would ‘put pride and everything aside’ to communicate with his ex-wife and see if they can ‘work it out.’ If not, he would seek court orders to resume contact. He currently follows his youngest son’s progress through updates from his eldest son;
(f)When asked how he would advance his aspiration to resume a relationship with his granddaughter, the Applicant said he would try and establish communications with his daughter and if necessary, undertake supervised visits within the constraints of the Sex Offenders Registration Act 2004 (Vic);
(g)When asked about the nieces and nephews he referred to in evidence, the Applicant agreed they were now all adults. He communicates with some of them ‘mainly though Facebook…about a couple of times every two or three weeks.’ None of his relatives had visited him in prison or immigration detention, because they ‘were not aware of [his] circumstances until recently;’
(h)When asked about reported affairs during his marriage as the source of conflict with his ex-wife,[32] the Applicant said there had been one affair, but responded: ‘I would not say that contributed’ to the divorce. When asked about the current relationship he referred to in pre-hearing materials, the Applicant said that relationship, with a woman in the Philippines he had met online, had since ended and he had not spoken to her in over a year;
[32] Ibid, 484 [20].
(i)The Applicant accepted the accuracy of all police and court materials in evidence. However, there were aspects of the statements provided by his daughter and ex-wife to police that he disagreed with, specifically:
(i)In relation to his daughter’s statement, he did not recall telling her to pull her pants down on the occasion referred to.[33] He said it was ‘untrue’ that he treated his daughter any differently after his offending,[34] stating: ‘I only distanced myself from her because I didn’t want to make her feel uncomfortable’;
[33] Ibid, 304 [9].
[34] Ibid, 305[16]
(ii)In relation to his wife’s statement, the Applicant disagreed that he started touching their daughter inappropriately around her breasts when she became a teenager,[35] stating his wife would have told him ‘on the spot’ if she had seen this. He also said he did not initially deny his offending to his wife.[36] He claimed that her request that he leave the family home[37] arose from him forming an online relationship with a woman from the Philippines and advising his wife that he wanted a divorce;
[35] Ibid, 308 [4].
[36] Ibid, 309 [5].
[37] Ibid, 310[11].
(j)When asked about his claim that the relationship with his ex-wife and daughter returned to ‘normal’ after his offending, the Applicant responded:
Everything continued as before the incident. We lived together, relaxed together. She finished school. She got pregnant to her boyfriend…My daughter and I had a normal relationship. No tension and there was absolutely nothing to say there was anything wrong with our marriage and our relationship at that stage. My daughter slept at the house. She forgave me. When my granddaughter was born her father didn’t recognise her as his daughter. My daughter came home and did a beauty course and I took my granddaughter to a primary school a block away…’
(k)The Applicant confirmed he has had no contact with his daughter or granddaughter since his daughter gave her statement to police three years ago. The Applicant was asked whether he had any clearer understanding of the reasons for his offending against his daughter. He claimed to have seen a counsellor in detention and believed his offending was linked to the trauma he experienced as a child. When asked to explain this link, the Applicant responded: ‘Maybe because it was done to me maybe I thought it was OK to do it to my daughter.’ When asked how the sexual abuse he referred to as a child made him feel, the Applicant responded: ‘Disgusted.’ When asked in light of that experience why he acted to make his daughter feel the same way, the Applicant responded: ‘I never thought of that at the moment;’
(l)The Applicant said he disclosed to his counsellor in immigration detention the sexual abuse he was subjected to by one of his brothers and a sister when he was a six or seven-year-old child. He also referred to another episode of sexual abuse, stating an unidentified perpetrator came into his room while he was sleeping, held a knife to his throat, cut his chest as a threat to keep quiet, raped him, then left. During his oral evidence the Applicant pulled down the collar of his shirt to point to a scar on his upper chest as arising from this incident. He said that he did not previously disclose these assaults to other family members[38] and claimed to have only begun to deal with his trauma in immigration detention. The Applicant claimed to have participated in counselling fortnightly for about 18 months. The Applicant was asked about inconsistencies in his evidence about the childhood assaults as follows:
[38] Ibid, 231.
(i)His oral evidence is that an older brother, an older sister and an unidentified man sexually assaulted him as a child. When asked why he had not previously mentioned the unidentified man, including in submissions to the court by his lawyer, who only referred to abuse suffered ‘at the hand of his siblings’,[39] the Applicant said he did not mention the ‘third party’ to his lawyer. When asked why not, the Applicant did not offer an explanation, replying: ‘I simply did not mention it’;
(ii)When asked why the account in his 2019 Personal Circumstances Form was to being ‘rape 2 times by gerillas and 1 time by my older brother,’ the Applicant said the reference to ‘gerillas’ was because ‘it was done to me during the fighting…people having confrontation with the Army.’ When asked why there was no reference to the abuse by an older sister, the Applicant responded: ‘I must have worded it the wrong way’;
(iii)When asked why the submissions on his behalf by Refugee Legal referred to him being ‘sexually abused on numerous occasions, once by his elder brother, once by his sister, and once by a soldier who raped him,’[40] the Applicant said he assumed the unidentified man who came into his room ‘could have been a soldier or guerrilla’.
(m)The Applicant said he did not have any diagnosed medical or psychological conditions but referred to a past suicide attempt after the visa cancellation decision in 2019. He stated that he tried to commit suicide by ‘choking myself with a pair of socks.’ He agreed with a letter from a psychiatric registrar in prison that his mental state subsequently settled with no thoughts of self-harm, which the Applicant said was still the case;
(n)When asked about any conditions arising from his CCO, the Applicant agreed he was required to undertake psychological assessment and offence-specific rehabilitation. He variously claimed to have been unable to undertake these due to the shortness of his prison sentence, low risk or reoffending, unavailability of courses, and shortages of psychologists and psychiatrists. He claimed to have only seen a psychologist once ‘for ten or fifteen minutes’ while in detention. The Applicant said the counselling sessions in detention were directed at his childhood trauma and not the sexual offending against his daughter. The Applicant said if released he would abide by any CCO and rehabilitation requirements. The Applicant did not lodge any medical records. The Tribunal directed the Respondent to enquire about the availability of health records from IHMS or other agencies during the Applicant’s detention by 10 February 2021. These were provided and are discussed later in these reasons;
(o)When asked about the address he previously indicated he would live at if released into the community,[41] the Applicant said he had rented a room from a lady at this house that was close to his previous workplace. When asked if he still intended living there, the Applicant said he would rather relocate to Perth, where he believed work opportunities were better. While organising this, he said a sister in Melbourne had verbally offered him accommodation but agreed there was no corroborating evidence from her. The Applicant said finding work was his ‘first priority’ because he had ‘never been unemployed.’ He would pick fruit or work in aged care because he liked helping elderly people. He claimed to have a Certificate III in Aged Care that enabled him to work in nursing homes, but did not provide corroboration of this qualification or any prospects of work in this field;
(p)The Applicant claimed to have been a Minister of his Spanish church and said he made a positive contribution through preaching, interpreting Spanish services into English for visitors, and helping elderly Spanish people attend church, other appointments and pay bills. He confirmed that he was fluent in spoken Spanish but could not write in that language. There is no corroborating evidence about the Applicant’s work as a religious minister or volunteer work;
(q)When asked if he had previously applied for a Protection Visa, the Applicant said he had not. This was because of advice he received from Refugee Legal to continue with his current application and ‘if unsuccessful, try the next step, which is a Protection Visa;’
[39] Ibid, 31 [12].
[40] Ibid, 99.
[41] Ibid, 232.
Other references
The Tribunal acknowledges Statutory Declarations from the Applicant’s eldest son and ex-wife, both dated 2 April 2019.[42] These refer to the Applicant as ‘hardworking’ and ask that he be given a ‘second chance’ to remain in Australia. Both authors express fears for the Applicant’s safety and ability to provide for himself if returned to El Salvador. The Applicant’s ex-wife stated that she believes he has learned his lesson and does not constitute ‘a danger to our society.’ She referred to the interests of their youngest child as a reason for the Applicant to remain in Australia, but the child’s interests are not particularised.[43] She said the Applicant has no family to rely upon in El Salvador and would be confronted by an unsafe and dangerous environment if returned.
[42] Ibid, 86-87.
[43] Ibid, 87.
The Statutory Declarations from the Applicant’s ex-wife and eldest son are now almost two years old and the Applicant did not call them as witnesses. The precise nature of their current relationship with the Applicant could therefore not be ascertained. The Applicant made it clear he has had no personal contact with his ex-wife for over three years and said she was the ‘last person’ he wanted to speak to. He claimed to speak to his eldest son frequently but did not ask him to provide an updated statement or appear as a witness. The Tribunal is mindful that in considering references from family members, they can provide the best possible perspectives about an Applicant’s crimes, which other members of Australian society might consider unacceptable. In the case of dated evidence such as this, and the circumstances in which the statement from the Applicant’s ex-wife was given, care must be taken about the weight placed on such references.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed 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.
Tribunal consideration: The nature and seriousness of the conduct
The Applicant does not dispute the serious nature of his convictions, or the police, prosecutor and court’s references to his offending.[44] The Tribunal has also had regard for the statements to police by his ex-wife and daughter, reflecting the serious effect his conduct had on them and their family.[45] With the exception of the two previously discussed matters at paragraphs [9] and [16] of his daughter’s statement, the Applicant does not dispute its contents. His daughter said in a statement to police dated 2 February 2018:
[44] Ibid, 30-51; 283-289; 492 [33]-45].
[45] Ibid, 302-311.
1. My full name is…I am 27 years old.
2. In 2004 when I was fourteen years old I was living with my dad,…my mother and my younger brother…. I also have a younger brother… who is ten years old however he was not born until 2007.
3. At this time I was living in a two bedroom unit…with my family and I was sharing a room with my brother… In 2004 I was in Year 8...
4. My mother…worked the early shifts from 7am-3pm…during this time. My father …also worked in a factory…
5. One school morning in 2004, my alarm woke me for school and I decided to stay in bed. My dad…came in to wake me up and I said to him I didn't want to go to school, my younger brother…was also in his bed in our room at the time and mum had already gone to work. My brother was 8 years old in 2004.
6. Dad jumped into bed with me and I was laying on my back and dad was laying on his side so that he had his back towards my brother. Dad and I started talking and he asked me if there was anything going on at school, then dad slid his hand across my breasts and began fondling them over my pyjamas. He said to me my breasts are growing because he can feel them. I told myself dad was checking my development because this was the first time anything like this had happened.
7. A couple of days later I was standing in the kitchen at our family home and my dad came home from work and I went to open the door to let him in and he kissed me on the lips at the front door. Dad and I never kiss on the lips we have always been taught that it's disrespectful to kiss on the lips between a father and a daughter. I moved after he had kissed me because he was really close, when I moved away he told me to come back and give him a proper kiss. I told him no and walked away from him up the hallway. No one else was around when he did this.
8. About a week after this we had family over visiting at our house. My Dad told me to come into the kitchen where he was sitting at the kitchen table, he had [younger brother] on one of his knees. Dad told me to come and sit on his lap also so that he had me sitting on one knee and my brother on the other knee. We started looking at a catalogues' and he put his left hand up my top and touched me on the left breast. I was wearing a t-shirt and a bra; he moved his hand inside my bra and touched me skin to skin on my breast whilst my brother was sitting on his other knee. The rest of the family were busy in the living room.
9. Around this time shortly after on a Saturday morning we were getting ready to go to church. My mum was in the shower getting ready and my dad was ironing his clothes in his bedroom. There was an event going on at the church that day, usually my mum would be on early morning shift from 7-3 but she was home. I walked over to my dad in his bedroom because I needed to have a piece of clothing ironed. When he saw me he told me to pull my pants down, I was wearing my pyjama pants that morning. I said no to him more than once and he kept asking me to do it. Then I just walked away from him.
10. One afternoon again around the same time, my dad and I went to buy some takeout, dad was driving and I was in the passenger seat beside him. After picking up some food from McDonalds…on the way back home he asked me to touch his penis, to grab it. There was no-one else in the car, I touched him over clothing on the penis and it was hard, then I pulled my hand away and we drove home to our house.
11. On a weekend also around this time, my dad was in the shower while I was in our living room. My dad came over to me with a pair of underwear in his hands and asked me why there was white residue on my undies. I told him it was something normal that I had learnt about it in Health Development class that happens to girls.
12. All of this happened around Spring time in 2004 because the weather was warm and I remember wearing shorts at that time of the year.
13. One Saturday morning a couple of months later, I woke up and found my dad on the couch. Dad told me that my mum…found out what he had done to me. He told me that mum approached him about the way he was looking at me. Dad had told me that mum had a gut feeling, that there was something wrong with the way he was looking at me, as in he wasn't looking at me the way a dad should look at his daughter.
14. Later that day mum called the house and told me how could I be so stupid to let him touch me and that she was planning on leaving with my younger brother…but I was to stay and live with my dad. When mum came home from work mum, dad and I all started getting into an argument about what dad had done to me. Mum got very angry at me about what had happened with dad. After they had stopped fighting my mother called her brother, my Uncle... My Uncle…came over to the house and tried to talk to both my parents, trying to calm down the situation. My Uncle had no knowledge of what my parents were arguing about until he came to the house, that's when my mum told him what had happened.
15. After this argument my mum and dad continued to stay and live together up until November last year, 2017.
16. Whenever my mum wasn't home because she was at work, my dad was still taking care of us on the weekends during the day, dad would say to me that if I made any complaints to my mum about him that he would never buy me anything and he would never take me anywhere ever again. He treated my brother lovingly and very different to the way he treated me. Dad was always angry towards me after my mum had found out what he had done.
17. As I got older and became interested in boys my dad said to me I was too young to have a boyfriend and he questioned me as to why I wanted a boyfriend. I just wanted to feel like my friends at school, I just wanted to feel normal. Dad asked me if I wanted a boyfriend so a boyfriend could do what my dad did to me...
18. Dad said, "Did I like it?" referring what he done to me.
19. I continued living with my parents as I had nowhere else to go. I tried to remember to respect my parents and I lived under their roof with a strained relationship trying to carry on as normal. I decided to protect my family from the shame and embarrassment and to not cause issues for my little brothers who adore my dad.
20. When l was 23 years old I was in the car with dad and my daughter…My dad asked me about the incidents that occurred when I was fourteen years old with us. I told him I didn't want to talk about it and he asked me why l didn't stop him from touching me. l told him that I was afraid and he told me that he kept going after the first time because he thought I liked it. He then asked me why didn't I go to mum to tell her what happened and I told him I was just afraid and that he was my dad and was meant to be protecting me.
With the exception of the three previously discussed matters at paragraphs [4], [5] and [11] of his ex-wife’s statement to police, the Applicant does not dispute its contents. This statement, dated 5 February 2018 is in the following terms:
…
4. As our daughter…became a teenager I noticed my husband…started looking at her inappropriately. We were taught in the way we grew up that you should not be touching your children inappropriately. It was around this time that I started noticing [the Applicant] touching [daughter] on her body more often, he would tickle and play with her, touching near and around her breasts and down her sides.
5. I had a dream one night that [the Applicant] was looking at [daughter] in a way that wasn't right, not like a father would look at a daughter. When I woke up I knew something was not right. The next day I confronted [the Applicant] about this and he denied touching [daughter], he told me it was all in my head. I continued asking him what had happened because I believed he was lying to me. Three days later [the Applicant] was in the Kitchen and I went to him, and I said, "you have to tell me what's happened, you are lying to me, something has happened". [The Applicant] said to me, "Yes I have been touching [daughter]."
6. [The Applicant] never really told me what happened between them.
7. [Daughter] was there when I was speaking with [the Applicant] and when I turned to her and asked her what happened she said, "Mum, I don't want to talk about it."
8. I tried to talk to [the Applicant] about what happened but he never specify what he did.
9. After this, we continued living together as a family but it was like hell, [the Applicant] and I had an untrusting and argumentative marriage. When I would finish work on the weekends I would run home to our house so I could check on [daughter]. I was so worried and felt fear about leaving [her] with [the Applicant] whilst I was at work. I would always ask her if she was o.k when I came home and she would tell me she was fine.
10. [Our daughter] moved out with her boyfriend when she was around 19 years old but she came back to live with us about six months later. [She] again moved out when she was 23 years old but she hasn't moved back in with us since then.
11. In around December 2017, [the Applicant] and I separated, I told him to go. He still visits our family home to take care of [youngest child] whilst I am work. About two weeks ago [the Applicant] and I were talking about what he did to [our daughter] and he was saying to me, "How could I prove I am sorry."
I told him, "o.k you have to go to the Police and tell them what you did, what you did was no good, not acceptable."
[The Applicant] asked if I was serious and I told him "yes."
[The Applicant] called me on my phone and he told me that was at the Police Station and he asked me "are you sure?"
I said to him, "yes I am sure."
I rang him later that night and asked him "what happened?".
He said "You don't believe me. I already did my statement to Police."
12. On Saturday the 3rd of February 2018, in the evening I was talking to [the Applicant] on the phone and told him [our daughter] had spoken with Police.
13. [The Applicant] went very quiet on the phone, I told him I was going to make a statement to Police also and I wanted to know what really happened, what he did to [our daughter].
He said, "When you went to work I used to go to her room and went into her bed and I started to touch her, the breasts and the vagina."
14. He also told me about something that happened in the car with [our daughter]. He said, "When we were in the car I was aroused and I asked her if she wants to touch it and I grabbed her hand and placed it on my penis."
15. I remembered after he told me this that when [our daughter] was a teenager the Applicant] was going to McDonalds and she didn't want to go with him. It was only going to be [them] alone in the car. [Daughter] gave me a look which made me think something was wrong because [she] loved to go out with [the Applicant] and to get take-away. I had noticed the change in her, towards him and this was before I knew what had happened.
16. What [the Applicant] did destroyed our marriage, my peace and it affected me mentally. l feel upset about not going to Police earlier and what affect it's had on [our daughter] but I didn't really know what happened until [the Applicant] told me last week.
The sentencing magistrate stated that the Applicant’s offending was ‘serious,’ represented a ‘significant breach of trust,’ and comprised ‘repeated acts of offending against a young, vulnerable victim.’[46] Her Honour considered that an immediate term of imprisonment was warranted.[47]
[46] Ibid, 48 [13]-[14]; 49 [3]-[5].
[47] Ibid, 49 [23]-[24].
Mr Kim submitted that the Applicant’s offending was very serious. He cited R v Leask [2013] WASCA 243 at [89] in support of the serious nature of such crimes:
The court has also repeatedly said that in cases involving sexual offending against children the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender.
Tribunal finding: The nature and seriousness of the conduct
Australian society abhors the sexual exploitation of children and insists that criminal sentences are sufficiently strong to protect children, punish offenders, and powerfully denounce such conduct. The legislature, at the state and Commonwealth level, has set relatively high maximum penalties for sexual crimes against children.[48] Community abhorrence of such crimes arises from the inherent vulnerability of children, whose emotional maturity is not fully developed. They are consequently at a disadvantage when confronted with sexual conduct by adults. That disadvantage is undoubtedly amplified when the conduct is from a trusted figure like a parent. The Applicant has egregiously breached his daughter’s trust.
[48] Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
While it is accepted the Applicant’s convictions in 2018 relate to conduct occurring in 2004, the Tribunal is permitted to consider ‘other conduct to date:’ cl 13.1.1(1). That includes the Applicant’s behaviour in the years after the abuse, when he raised his past conduct with his daughter on several occasions, which could only have added to her distress. The Tribunal accepts the evidence of the Applicant’s daughter and ex-wife about the difficult nature of their family relationship after the Applicant’s offending in 2004,[49] in preference to his implausible claim that his family then resumed a ‘normal’ relationship.[50]
[49] Exhibit R1, 305; 306; 309.
[50] Ibid, 119 [23]; 116 [2.f.].
The following aspects of cl 13.1.1(1) of the Direction are relevant in this matter:
(a)13.1.1(1)(a); (b); (c): The Applicant’s sexual offending against his daughter, who was then a minor child, is viewed seriously regardless of the sentence imposed. A child is undoubtedly a vulnerable member of the community. Her distress could only have been exacerbated on the subsequent occasions the Applicant raised his offending with her;
(b)13.1.1(1)(d): Imprisonment is the most severe sentencing order available to Australian courts, especially in circumstances where an offender has no prior criminal history.[51] Although a four-month sentence of imprisonment and 18-month CCO is not particularly severe, it is noteworthy the Applicant received an immediate sentence of imprisonment as a first-time offender and was placed on the Sex Offenders Register for life. This reflects the objective seriousness of his crimes.
[51] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
The Applicant’s offending is objectively very serious and weighs substantially against revocation.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk an Applicant poses to the Australian community in the event they reoffend, taking into consideration the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this aspect of the Tribunal’s task:
…part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
In Re Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81, Davies J stated at [133]:
…even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
The issue of risk was elaborated upon in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR at [493], where the Full Federal Court held that neither the ordinary meaning of the term ‘real risk,’ nor any requirement of the law, required that the term be assessed solely on a quantitative basis. Their Honours held that when assessed in a qualitative sense, a real risk is one that ‘is not remote, far-fetched or fanciful’. It follows that there is no inconsistency in finding that a risk can be real, despite the probability of it occurring being quantitatively low.
In Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 (Guo), the majority observed at [56]-[57]:
56. The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur…
57. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events…More recently in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 Kenny J noted in at [43] that:
The likelihood of a person engaging in conduct that may harm the community has been said to be a matter that may (perhaps sometimes must) bear on an assessment of the risk of harm to the community occasioned by the visa holder’s continued presence…It is accepted that the likelihood that a person may re-offend and thereby harm the community may properly be seen as an element of the assessment of the risk that that person poses to the Australian community.
During his police interview, the Applicant had little explanation for what motivated the indecent acts against his daughter, beyond curiosity:
He…explained to investigators that he did not have a reason for sexually assaulting his daughter, "I'm still trying to find out the answer myself, why did I did that", "I'm trying to find the answer myself, why did I do it". "I never thought I'd do that to my …daughter".
The accused explained to investigators that he was curious about the complainant's young breasts and was aware he was meant to protect his daughter from harm. "probably cause she was young, young breast", "just for curiousity to see how they feel"…[52]
[52] Ibid, 289.
The Applicant’s sexual offending against his daughter is very serious and he has egregiously breached her trust. His conduct in the years after the offending, by raising his past indecent acts with her, could only have added to her distress. The Applicant’s claim that the relationship with his daughter and family returned to ‘normal’ after his offending is misguided and self-serving revisionism at best. The Tribunal is concerned that he is yet to understand the reasons for his offending and the full extent of its effects on his daughter and family. The Tribunal rejects his claim that it arose from his own purported sexual abuse as a child, which is absent any expert corroboration.
The Applicant’s risk of recidivism is low but real. That conclusion is informed by the continuing lack of an explanation for his offending, incomplete insight, and absence of offence-specific rehabilitation as mandated under his CCO. Moreover, child sex offences fall into a category of offending where the potential harm is so serious that even a low risk of repeat is unacceptable. The deemed community expectation in this matter is that the Applicant’s visa should remain cancelled.
In terms of the best interests of the Applicant’s youngest child and grandchild, others have provided parental care for these children since the Applicant’s arrest over three years ago. There is a dearth of evidence from the primary caregivers of these children. On balance, however, the Tribunal infers from the somewhat dated evidence of the Applicant’s ex-wife, that she foresees some role for the Applicant in their youngest child’s life. The Tribunal therefore accepts that revocation is in that child’s best interests. There is no foreseeable prospect, however, of the Applicant assuming the grandfatherly role he aspires to, because the mother of that child is the victim of the Applicant’s sexual offending in 2004. She cut off all contact with the Applicant following his arrest three years ago and there is no evidence the Applicant’s grandfatherly aspirations would be welcomed.
In terms of non-refoulement obligations, the Applicant’s claims are at a high level of generality and insufficiently advanced to establish that non-refoulement obligations are owed to him. The Applicant is able to make a Protection Visa application and if he did so, his claims could be more comprehensively addressed.
Notwithstanding the Applicant’s failure to call any witnesses or lodge any current statements, the Tribunal accepts he has made some contribution in Australia through work, church-going activities, and volunteering. It is also clear that what ties the Applicant has are in Australia and there are those who would be saddened by his removal. If removed, the impediments confronting the Applicant after a lifetime spent in Australia are considerable. These are ameliorated to an extent by his current good health, ability to speak Spanish and English, a strong history of past employment, and over $100,000 in an Australian superannuation fund to rely upon.
Having weighed all the considerations individually and cumulatively, the Tribunal finds there is not another reason to revoke the cancellation decision. That is because the primary considerations of ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ outweigh the primary consideration Best interests of minor children and the other countervailing considerations in this matter.
DECISION
It follows that the Tribunal affirms the reviewable decision.
I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
……[sgd]…………………………….
AssociateDated: 18 February 2021
Date of hearing: 3 February 2021 Applicant: In person Advocate for the Respondent: Mr Kyu-Won Kim Solicitors for the Respondent: Clayton Utz Lawyers
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