LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 60
•23 January 2020
LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 60 (23 January 2020)
Division:GENERAL DIVISION
File Numbers: 2019/7117
Re:LDDW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:23 January 2020
Place:Melbourne
The Tribunal decides to affirm the reviewable decision.
.........[sgd]......................... ......................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of Class BF Transitional (Permanent) visa – applicant is Salvadoran citizen – applicant fails character test by operation of law – sexually based offences involving a child – delegate decides not to revoke mandatory cancellation – consideration by the Tribunal under ministerial Direction No. 79 – primary considerations – protection of Australian community – best interests of minor children in Australia affected by decision – expectations of Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – is there another reason to revoke mandatory cancellation of visa – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 35
Migration Act 1958 (Cth), ss 499, 501, 501CAMigration Regulations 1994 (Cth), reg 2.52
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Lam and Minister for Immigration and Multicultural Affairs; Re [1999] AATA 56
Stone and Minister for Immigration and Ethnic Affairs; Re (1981) 3 ALN 81Secondary Materials
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Migration Act 1958 – Direction No. 75 – direction under section 499 – Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b). (Commenced 7 September 2017)
Migration Act 1958 – Direction No. 79 – direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
23 January 2020
The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act1975 (Cth) prohibiting the publication of the name of the Applicant in these proceedings. Instead he will be known by the anonym ‘LDDW’. The identities of certain other members of his family will be anonymised.
LDDW is a citizen of the Republic of El Salvador. He was born in 1971. He was first granted a visa to enter Australia on 6 June 1984 at the Australian Embassy in Mexico City and arrived in Australia later that same month, aged 12. On 17 June 1984 he was granted a Class BF Transitional (Permanent) visa. He has resided in Australia continuously since his arrival. On 20 March 2019 his visa was cancelled by the Respondent Minister under section 501(3A)(a)(ii) of the Migration Act 1958 (Cth) (the Act) because the Minister was satisfied that LDDW did not pass the character test set out in the Act because of the operation of section 501(6)(e)(i) of the Act, in that a court in Australia has convicted him of one or more sexually based offences involving a child.
After the cancellation of his visa, LDDW was invited by the Department of Home Affairs (the Department) to make representations as to why the mandatory cancellation of his visa should be revoked. He did so in accordance with the time period of 28 days stipulated in the Migration Regulations 1994 (Cth), reg 2.52. On 24 October 2019 a delegate of the Minister decided not to revoke the mandatory cancellation of the visa.
LDDW has brought this decision of the delegate to refuse to revoke the mandatory cancellation of his visa to the Tribunal for review. A hearing was held on 9 January 2020. LDDW represented himself, gave evidence, was questioned by the Tribunal, and was cross-examined by Ms Rachel Noronha of Clayton Utz, representing the Respondent.
The Tribunal had regard to documents collated by the Department which were admitted into evidence (‘G’ documents). The Respondent also submitted a Statement of Facts, Issues and Contentions and four annexures, and the Applicant lodged written submissions, which were taken into account. A schedule of exhibits tendered into evidence by both parties is at the end of these reasons.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepted that the Applicant had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(ii) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
Section 501CA of the Act relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
If the Tribunal finds that LDDW fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In this exercise, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the Respondent must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
Evidence in relation to the character test
Before the Tribunal (G2, p 29) was an Australian Criminal Intelligence Commission criminal history check dated 12 February 2019. This document records that on 18 December 2018 at Sunshine Magistrates’ Court in Victoria LDDW was convicted of the offences of Indecent act with child under 16 (6 charges), and one count of the offence of Solicit child under 18 for indecent act.
The Tribunal also had before it (G2, p 30-51) a Court transcript of a hearing on 18 December 2018 which showed that LDDW was sentenced to an aggregate term of imprisonment for these offences of four months, to be followed by an 18-month community corrections order (CCO) (G2, p 49). He was also placed on the Sex Offender Register under the relevant State legislation, with reporting obligations to Victoria Police for life.
The Tribunal also had before it (G2, p 85) a Department note dated 20 March 2019 recording that the Victorian Department of Justice and Regulation had confirmed that LDDW was on that date serving a sentence of full-time imprisonment at Hopkins Correctional Centre in Victoria.
Finding in relation to the character test
On the basis of this evidence, the Tribunal finds that LDDW fails the character test in section 501(3A) of the Act. The remaining task is for the Tribunal to determine whether there is ‘another reason’ why the mandatory cancellation of his visa should be revoked.
THE MINISTERIAL DIRECTION
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The Minister has made such a direction, Direction No. 79 (‘the Direction’). The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(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.
In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
THE APPLICANT’S OFFENDING
A police brief produced under summons by Victoria Police outlined LDDW’s offending. At the hearing, LDDW was asked if he accepted the contents of the material produced under summons, and the Tribunal emphasised that this was the police narrative of the charges which were laid, together with their inclusion of certain admissions and comments that LDDW made at interview. LDDW said that, although he had not read the police brief, he did not dispute any of the contents of the material produced under summons.
The offending occurred in 2004 at LDDW’s family home where he lived at that time with his wife (who will be called ‘AW’), daughter (‘AD’) and son (‘AS’). Another son (‘AY’) was born three years later. The complainant is the biological daughter of LDDW. At the time of the incidents, the complainant was 14 years of age.
In terms of the seven occasions which underpinned the charges of which LDDW was convicted by the Court, on the first occasion LDDW admitted going to his daughter’s bedroom, a room she shared with her younger brother. Both of the children were in bed. LDDW got into bed with AD and touched her on the breast and vagina, under her clothing. On a second occasion while visiting family at another location, LDDW requested his daughter to remove her pants to expose her vagina. On a third occasion, LDDW was with his daughter in his car at a drive-through restaurant. He asked his daughter to touch him on his erect penis, over his clothing. On the fourth occasion, whilst the family were all walking home from a family event, LDDW, who was walking behind the other two with AD, grabbed some leaves and pushed them down his daughter’s blouse, touching her breast.
On the fifth occasion, at their residence, LDDW requested his daughter several times to pull her pants down, which she refused to do. On the sixth occasion, LDDW was in the family home with his young son on his knee. He asked his daughter to sit on his other knee, which she did. LDDW then moved his hand under AD’s t-shirt and bra and touched her breast. On the seventh occasion, AD came into her parent’s bedroom at their home and sat on the bed. Both her parents were present, but her mother was facing away. LDDW put his hand under AD’s skirt and touched her vagina.
All of these incidents occurred within a three week period. LDDW said that shortly after the last instance, his wife approached him and asked him if he had ever offended against their daughter. LDDW said he admitted he had touched her ‘on the wrong parts’.
LDDW continued to remain married to AW. In 2017 they separated and LDDW moved out of the family home. LDDW said during an argument with his wife at the end of 2017 about him being in contact with another woman (‘LC’), AW told him that she had obtained legal advice and would report him to police what he had done to their daughter.
In January 2018 LDDW attended the local Police Station where he reported that he had sexually assaulted his daughter by touching her intimately when she was a child. LDDW was subsequently arrested and interviewed by the Victoria Police Sexual Offences & Child Abuse Investigation Team regarding his revelations. The investigation team then contacted the complainant (then aged 27) who attended the police station and made a statement that LDDW had assaulted her when she was 14 years of age but she had been previously ‘afraid’ to disclose this.
The Tribunal had before it a signed statement from AD dated 2 February 2018 which outlined the nature of the incidents in the manner referred to above. In relation to what took place after the assaults ceased, AD wrote:
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 he would never buy me anything and he would never take me anywhere again. He treated my brother lovingly and in very different to the way he treated me. Dad was always angry towards me after my mum found out what he had done.
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. I told him that was not the reason for wanting a boyfriend.
Dad said, “Did I like it,” referring to what he had done to me.
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.
When I was 23 years old I was in the car with dad and my daughter and we were coming back from Coles in Sunshine. 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 I didn’t stop him from touching me. I told him I was afraid and he told me he kept going after the first time because he thought I liked it. He then asked me why I didn’t 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.
The Tribunal also had before it a signed statement to police from AW, dated 5 February 2018. In the statement, AW said she had confronted her husband in 2004 and he admitted, in the presence of AD, at that time to ‘touching’ his daughter. AW said LDDW did not go into detail and their daughter said she didn’t want to talk about it.
AW wrote:
After this, we continued living together as a family but it was like hell. [LDDW] and I had an untrusting and argumentative marriage. When I would finish work on the weekends I would run home so I could check on [AD]. I was so worried and felt fear about leaving [AD] with [LDDW] 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.
[AD] moved out with her boyfriend when she was around 19 years old but she came back to live with us about six months later. [AD] again moved out when she was 23 years old but hasn’t moved back in with us since then.
In around December 2017, [LDDW] and I separated, I told him to go. He still visits our family home to take care of [AY] whilst I am at work. About two weeks ago [LDDW] and I were talking about what he did to [AD] 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’S EVIDENCE
LDDW told the Tribunal he was born in a country town of San Jose Juyavel in El Salvador in 1971. He resided there until around the age of eight years when, at the beginning of 1979 he said his mother decided to take him and his sister (who is one year older) out of the country to Costa Rica.
In Costa Rica he was placed in a household with an older sister he had previously not known. He said his mother left him there and returned to El Salvador. LDDW said he stayed in Costa Rice for about three years and then his older sister applied for him, his sister and his two nieces to migrate with her to Australia.
He arrived in Australia in 1984 (G2, p 95), with his sister, her husband, his two nieces and his other sister.
LDDW told the Tribunal that his two sisters still reside in Australia, one in South Australia and one in Melbourne. He said he has contact with his sister in South Australia about twice a year for significant anniversaries, and ‘chats’ with the sister in Melbourne and visits ‘every now and then.’ Both of his sisters have adult children.
LDDW said he had no other relatives in Australia before he emigrated in 1984. He initially stayed in a migrant hostel in Melbourne and then has lived in various suburbs of Melbourne. LDDW said he did not attend school in El Salvador but did attend school during his time in Costa Rica. He said in Australia he attended a Melbourne high school from year 8 to year 12, completing his schooling in 1989.
LDDW said, after leaving school his sister could not afford for him to undertake a technical education course so he obtained employment with a major manufacturer in Melbourne in 1990.
LDDW remained with this company and an associated company for around seven years. He worked both on car assembly lines and in fitting accessories to cars. In time he became more senior and at one stage had several others working to him.
LDDW changed jobs in 1997 (G2, p 68) and commenced a series of other jobs, as a valet car driver, a delivery driver and then returned to the auto accessories business. He has had consistent employment since leaving school up until the time he was imprisoned in 2018.
The Applicant said he also worked a part-time job cleaning offices and undertook a course in aged care, gaining a certificate. He said he worked at a nursing home on a casual basis helping residents with showering, their meals and their activities of daily living.
LDDW said he helped build a local church in his suburb which focussed on supporting the Spanish-speaking community there. He said he assisted in a range of church activities including driving elderly parishioners to attend services and playing in the local church band. LDDW said that the services at the church are primarily in Spanish but he was asked by the pastor to assist with bringing guests who spoke in English to services, because he said the younger members of the congregation were more likely to speak English than their parents and grandparents.
LDDW said he met his former wife, AW, in 1988 through the church they then both attended. They married in 1990. The daughter, AD, was born later that same year. Their older son, AS, was born in 1996 and another son, AY, in 2007. LDDW said that AD now has one daughter of her own, whom he estimates is six or seven years of age.
LDDW said that his marriage to AW effectively ended in 2017 when they separated and he moved out of the family home. He said that he initiated divorce proceedings and told the Tribunal that the divorce was finalised in November 2019.
In terms of his contact with AD, LDDW said that before he made his admissions to the police in early 2018 his daughter used to come and stay with him and his wife during school holidays, but that from the time she was interviewed by the police he said AD broke contact, not only with him but also with AW and AS.
In terms of his contact with his older son, AS, LDDW said that he had regular contact with him. He said AS has contacted him in detention and had supplied certain things that he had needed. AS is currently studying at university.
In terms of his youngest child, LDDW said AY lives with his ex-wife. LDDW said when AY was around the age of five, his parents noticed he had trouble dealing with loud noise. He and AW took their son to various doctors and eventually to a specialist. AY was then assessed and LDDW said he was advised that AY had autism and that the condition was not severe but had affected his learning and his speech.
LDDW said that AY had assistance at kindergarten with a speech therapist providing instructions to the teachers. As he had progressed to primary school, AY had undertaken regular speech therapy sessions every fortnight. LDDW said because his shift finished earlier than AW’s, he had picked up AY from school and taken him home and helped him with his language development, listening to CDs on how to pronounce words, and that he had done this with the cooperation of AW. LDDW said that AY had improved ‘quite a lot’ in his language and would be moving on to high school at the commencement of the 2020 school year.
In terms of when he went to the police station at the beginning of 2018, LDDW said he had been living in a share house for around a year. He said he had been helping his AW with certain household expenses, paying half the rent and half the utility bills. LDDW said even though he had left the marital home, AW agreed that he could still pick up AY and take him to her home after school where he prepared dinner and did minor household chores.
LDDW said his wife developed a gambling addiction. The Applicant said he decided to leave the relationship and around the same time he met a woman, LC, who was visiting her sister in Melbourne from the Philippines. After LC returned to her own country, LDDW commenced a correspondence with her on-line and they developed a relationship. LDDW said that he had paid for LC to visit Australia twice, so that she could both visit her sister and see him. He told the Tribunal that LC is a widow with two children and he had been sending funds to her to assist in her living expenses, which is why he was doing the part-time cleaning and aged care work. LDDW said he disclosed his past offending to LC after about two months of corresponding with her.
LDDW said that AW found out that he was communicating with LC and then stopped him picking up AY after school. LDDW said that AW spoke to a therapist and told the therapist about the past offending and AW told him the therapist had advised ‘she had the right to put me in prison’. LDDW said this, and the fact that he was seeing LC, led to the argument with AW where he said he would hand himself in to the police.
In answer to the Tribunal, LDDW agreed that when he arrived at the police station he telephoned AW and asked her if she was sure she wanted him to make the admissions. She confirmed she was, so he went ahead and spoke to the police. This led to the charges being laid.
LDDW agreed that he had had a number of extra-marital affairs during his marriage, but that the arguments he had with AW were about money, not about his infidelity.
LDDW said that after he admitted in 2004 to improper conduct with AD, ‘we lived as normal’. He said his wife was angry with him and also angry with their daughter. LDDW said that AW asked AD in his presence why she had let the offending happen, and said that AD replied at the time that she thought it was her father showing that ‘he loved me’. LDDW said that he and AW ‘put it behind them’.
In terms of his physical health, LDDW said that he had been prescribed medication for hypertension in the past but no longer took the medication. He said he also attended his general practitioner about feeling depressed, and suicidal ideation. LDDW said that his general practitioner suggested he go on a mental health plan but he did not follow this up, he just wanted to end his life at that time.
In regard to more recent medical care, LDDW said he tried to commit suicide in prison. That is corroborated in a letter from Dr Joanne Maher, a psychiatric registrar at the Ballert Yaram-boo-ee Forensic Mental Service at Ravenhall Correctional Centre wherein Dr Maher refers to a suicide attempt in April 2019. LDDW said that incident was when he was at Hopkins Correctional Centre and he was transferred to Ravenhall because the latter had better health facilities. He said he finished his sentence at Ravenhall and then, on release, was taken into immigration detention.
Dr Maher relevantly wrote (G2, p 88):
We have diagnosed [LDDW] with an acute stress reaction triggered by multiple psychosocial factors. It is important to note that [LDDW] left El Salvador at age eight and endured trauma whilst there. The news of his deportation triggered memories of this trauma. [LDDW] also appears to have suffered a depressive episode in 2018 for which he attended his GP but declined treatment.
LDDW in his evidence said that there was a slight error in this paragraph in that it was in 2017, not 2018, that he went to see his general practitioner.
Under cross-examination, LDDW was asked about the conditions of the court-imposed 18-month CCO to undertake any assessment and treatment as directed by Werribee Community Corrections (G2, p 49). LDDW said he did not know what treatment was anticipated because he had immediately entered immigration detention on release from prison so had been unable to comply with this part of the CCO.
LDDW said he applied in prison for a mental health assessment but was told that his sentence was too short and he had a low risk of re-offending so he was not eligible. LDDW was asked about two psychiatric reports referred to by the sentencing Magistrate. LDDW said he remembered seeing a person called Kim Dowes and a forensic psychologist called David Ball, because the Magistrate had asked for reports before sentencing.
LDDW was asked about whether he still suffered from the acute stress reaction mentioned by Dr Maher. He said that he gets nervous seeing prison or detention officers and even ‘at the sound of keys’. He said he had great trouble sleeping and felt he may have had only two or three nights of uninterrupted sleep since entering custody.
When asked if he was taking any medication for his sleep problems or anxiety, LDDW said he was not; he said he did not want to take anything because he had seen how it had affected others in detention.
At Yongah Hill Immigration Detention Centre where LDDW is currently housed, he said that he had commenced counselling with the torture and trauma team to deal with his past trauma ‘and what I did to my daughter’. He said he saw a counsellor once every two weeks and these sessions had helped him to cope, and deploy techniques to focus rather than dwell on past traumatic experiences. When asked how these sessions had assisted in understanding why he committed the offences against AD, LDDW said that he had not yet got onto that topic with his counsellor, and had been so far concentrating on experiences in his childhood in El Salvador.
LDDW confirmed that he believed he was the youngest of twelve siblings. He said two of his brothers had died by shooting in El Salvador and that both of his parents had died since he had come to Australia. He said his older sister had asked a friend who was visiting El Salvador to make inquiries about the whereabouts of his parents and this friend reported back that his father had died of liver failure due to his alcoholism, and his mother had also died, but he did not know the cause. LDDW said he had a maternal grandfather in his home town that he often stayed with when very young, but that grandfather had long since passed away.
LDDW said that he may have one brother and two sisters still in El Salvador but had had no contact with them and ‘didn’t know if anyone was left there’.
CONSIDERATION
The Tribunal, as mentioned above, is obliged by section 499(2) of the Act to have regard for the contents of Direction No. 79.
Primary consideration – Protection of the Australian community (paragraph 13.1)
The Direction states that decision-makers should give consideration to (a) the nature and seriousness of the non-citizen’s conduct to date, and (b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraphs 13.1.1.1(1)(a) and (b) state the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously and crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
This part of the Direction also directs the Tribunal to consider the frequency of the offending and whether there is any trend of increased seriousness.
In this respect, there is no doubt to the Tribunal that LDDW’s offending was very serious. He has admitted to seven sexually-based offences against his daughter AD, committed when she was aged 14.
The offending appears from the summonsed material to have occurred over a three week period in 2004, sometimes in the unknowing presence of LDDW’s then wife AW, and his older son AS. The sentencing Magistrate said, in her remarks when passing sentence (G2, p 48-49):
Now, the offences that bring [LDDW] before the court, there can be no doubt they are serious offending. They are against a vulnerable victim, being his daughter, who was 14 at the time, and they do affect a significant breach of trust in relation to this matter. This offend [sic] occurred quite some time ago and much has been made about the admissions and I think defence has been quite balanced in their submissions, that they accept it arises out of essentially his partner confronting him at the time.
…
Now, I have read and considered the psychological assessment reports that have been provided to the court, and I accept that they say there is a low risk of offending and he presents with a genuine sense of remorse in relation to these offences. But I’ve also heard the victim impact statement and I have taken the opportunity – again, whilst on the bench, the summary was handed up – of reading the offences that bring him before the court.
It is offending that’s occurred over a period of times. It is repeated acts of offending against a young, vulnerable victim. As much as I accept that [LDDW] seems to have good prospects of rehabilitation, in my view, it still warrants an immediate term of imprisonment with a community corrections order to follow on that.
In terms of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the community should the person engage in further criminal or other serious conduct, and the likelihood of the non-citizen engaging in other serious conduct, taking into account available information and evidence on the risk of re-offending.
The Tribunal does not have the psychological reports referred to by the sentencing Magistrate before it, but it can take proper notice from the remarks of Her Honour the sentencing Magistrate that there may be a low risk of re-offending. The Respondent accepted in submissions that LDDW has exhibited remorse.
However, while the Tribunal may accept that this offending was, for want of a more apt word, ‘contained’ in the sense of the victim being a member of LDDW’s own family, I cannot accept LDDW’s submissions that this element means he is not a risk to the community at large.
What LDDW did was to prey on a young girl in a sexual sense who was entitled to accept his protection as a parent. He betrayed that trust, and exploited the fact that she was aged 14 and confused at that age of maturation about what her appropriate response should be.
The Tribunal notes that LDDW did not cavil with the information provided under summons which included AD’s statement that, after he had admitted his conduct to his wife, he behaved towards her in a way different from the way he treated her brothers. It would appear from AW’s statement that LDDW’s actions in 2004 significantly undermined the normal level of trust that is an essential ingredient in any family. This is illustrated by AW’s remark to police that the family environment after she confronted LDDW was ‘like hell, an untrusting and argumentative marriage.’
I accept LDDW’s point that because he was immediately taken into immigration detention, he has been unable to comply with the potential treatment orders within the CCO, but conclude that, presented with circumstances where a victim might be hampered in how they might defend themselves or respond, there remains a real risk of further offending of this nature. As Her Honour Justice Mathews stated, speaking as a presidential member of this Tribunal in Re: Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
I note that LDDW was charged after he presented himself to the police and made admissions, and the police took statements from AW and AD. The prosecutor, in addressing the Court (G2, p 45) pointed out that LDDW made two sets of admissions. The first was to his wife when she confronted him in 2004. The second was to the police in January 2018 after his wife told him to report it. The prosecutor said that LDDW did not approach the police ‘of his own volition’.
I consider that this is a reasonable summation of what occurred. At the hearing I asked LDDW if it was correct that he rang his wife when he got to the police station to double-check with her that she still wanted him to present himself, and she confirmed that she did. In his submissions to the Department (G2, p 71), LDDW relevantly wrote:
The reason why I didn’t come forward at the beginning is because my wife and I we decided to forget it and move on. Now in 2017 I decided to leave my wife because the marriage was not working due to her casino pokies. She decided to tell the police about what happened 14 years ago even though my daughter and I had a good relationship.....My wife said to me that if I leave her she will use what happen 14 years ago as an excuse to put me in jail as a revenge, my wife told me that what happen between me and my daughter was in the past but to get back at me for leaving her she will use that as an excuse as payback.
The prosecutor went on, in his address to the Court to say (G2, p 46):
Your Honour, this offending, I submit, is particularly aggravating for the following reasons. There’s seven separate incidents within a month. It constitutes persistent offending. It’s a significant breach of trust between father and daughter. There’s been victim blaming and another child present on three separate occasions, and the potential harm that that child could have been exposed to should he have witnessed the behaviour. By victim blaming, I mean that the accused asked the victim why she allowed it to occur, and he said that she thought – that he thought that she liked it, as was reflected in the summary.
To the extent that it may be suggested in the papers, the Tribunal does not accept that any purported link between childhood traumas that LDDW may have experienced in El Salvador, accepting his childhood before moving to Costa Rica was severely disrupted, could constitute a causative link to his offending against his daughter many years later. It is to LDDW’s credit that he did not make such oral submissions at the hearing and said he fully accepted what he did to AD was inexcusable.
The Respondent drew the Tribunal’s attention to remarks of Davies J, then President of the Tribunal, in Re: Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81, where His Honour said at [133]:
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the [applicant] is unlikely to offend again…and 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 Tribunal concludes on the evidence that this summation by Davies J applies in LDDW’s case. The Tribunal may accept that the risk of re-offending is not high, but it is real, and the nature of the harm that would be visited on a vulnerable victim is completely unacceptable.
The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of LDDW’s visa.
Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination as to whether revocation of the mandatory cancellation of a visa is in the best interests of a relevant minor child where that child is under 18 years old at the time of the decision. Where there are two or more affected children, the best interests of each child should be given individual consideration to the extent that those interests may differ.
As mentioned above, LDDW has a minor son, AY. He is aged 12. LDDW has given evidence that he occupied a regular parental role in relation to AY, shared with his then wife, from AY’s birth until he moved out of the family home in 2017. LDDW said that, in spite of the marital separation, he and AW made an arrangement for him to pick up AY from school, take him home to help him with his homework, prepare the evening meal, and undertake other household tasks.
LDDW gave specific evidence about helping AY with his learning difficulties, in consultation with AY’s teachers and speech therapists.
While there was no specific medical evidence before the Tribunal about AY’s stated autism condition, the Tribunal is prepared to accept LDDW’s evidence that such a diagnosis occurred when AY was around five years of age and also his evidence that it was not a ‘severe’ case of that condition.
On LDDW’s evidence, the additional tutelage AY received at his kindergarten and primary school and the learning aids that LDDW used with his son have been beneficial to the improvement in his speech. The Tribunal notes that AY was able to continue in regular schooling with this additional support, and also notes LDDW’s oral evidence that AY has been accepted to commence high school at a secondary college in the 2020 school year, which indicates that his education would seem to be progressing at a normal rate for a child of his age.
The Tribunal is satisfied that LDDW plays a positive parental role in relation to AY. There is no evidence of any improper conduct towards AY and the relationship between the Applicant and his youngest son would appear on the evidence to be a conventional, loving one. The Tribunal notes that AW provided a statutory declaration dated 2 April 2019 (G2, p 87) which relevantly states:
If he goes back he is leaving behind his two sons one of those is only 11 years old.
The other relevant minor child in this consideration is the Applicant’s granddaughter, the daughter of AD. LDDW estimated she was around six or seven years old. LDDW gave evidence that AD had moved out with a boyfriend and became pregnant but that relationship broke up and she returned home and her child was born while she was living with her parents. AD then continued to live with the Applicant and her mother for several more years before moving out with a new partner. LDDW said that, prior to the involvement of Victoria Police, AD would visit the family home for school holidays with her daughter.
The Direction requires that less weight should be given to this consideration when another person performs a parental role. The Tribunal does not have an indication of the views of AD in terms of the relationship of LDDW with his granddaughter. The Tribunal accepts that there may be some effect on the Applicant’s granddaughter, but not necessarily a significant affect, given his role in her life does not appear to be central and he has not had contact with her mother for two years.
On the evidence, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, because of the effect of separation from his father on the Applicant’s minor son.
Primary consideration – Expectations of the Australian community (paragraph 13.3)
The Direction sets out an exhortation at paragraph 13.3(1) which reads:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal notes that the expectation the Minister has outlined in this paragraph, that persons in Australia should obey Australian laws, applies axiomatically to Australian citizens as well; that is the basis of the rule of law in our civil society.
The Courts have considered this part of the Direction on several occasions. A recent Full Federal Court decision, FYBR v Minister for Home Affairs [2019] FCAFC 185, provided significant guidance to decision-makers in how to approach this primary consideration. The Court was referring to the predecessor of the Direction, Direction No. 65, but the wording of the relevant paragraph in the current Direction is identical.
In that judgment, the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a ‘norm’; it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations are deemed – they are what the executive government has set out are its views in the Direction, not values that may be gauged by some other independent process.
Stewart J (who agreed with the conclusions of Charlesworth J but wrote his own reasons) relevantly stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour went on to state (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is “appropriate” in the particular circumstances.
The Tribunal considers that the community expectations would be that LDDW should not have his visa restored. He has committed a serious breach of the law, admitting to a series of offences against a child, and a vulnerable child to whom he owed particular parental protection, and who reposed trust in LDDW which was betrayed. He committed these offences on seven separate occasions, and ceased only when confronted by the child’s mother. He made no admissions to the police for some 13 years until 2018, and then did so only at the behest of AW, and when she had told him she herself would go to the police.
While there may be a low risk of re-offending, as referred to by the Court, I am not satisfied that there is no risk, and any such re-offending would visit great harm upon the victim.
The Tribunal finds that this consideration weighs against the restoration of the visa, and relatively heavily so.
Other consideration – International non-refoulement obligations (paragraph 14.1)
The Direction explains that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where the person would be at risk of a specific type of harm. In this respect, Australia has responsibilities to observe its obligations to various international treaties, notably the 1951 Convention relating to the Status of Refugees.
LDDW is a Salvadoran citizen. His written and oral evidence before the Tribunal speaks of an unsettled early childhood. He said that his parents were both frequently absent, his father was an alcoholic, and he often had to fend for himself. He wrote that his parents were both faithless and while he believed that he originally had twelve siblings, he is unsure about how many of them are full siblings, because both of his parents had numerous affairs.
In his written statements (see, for example, G2, p 117), LDDW claims that when he was young he was sexually abused by two siblings and that he was raped by a guerrilla soldier. These claims cannot be corroborated but the Tribunal accepts that his childhood was turbulent and that LDDW was, it would seem, abandoned by his parents when his mother took him to Costa Rica. While this may be an understandable action that she took at a time when the civil situation in El Salvador was perilous, it nevertheless would be very traumatic for a young boy.
LDDW said that he had been told by his older sister that inquiries made in El Salvador had revealed his parents had both passed away. It is certainly evident from the 1984 visa application before the Tribunal (G2, p 95) that the manner of his coming to Australia was in the care of this older sister, in company with one other sister and two nieces.
The Respondent submitted that the Tribunal must consider all properly articulated claims that a person would be exposed to harm if returned to a particular country. Ms Noronha said that the Minister accepts that violence is widespread among the general population in El Salvador and that gang violence is a particular threat in that country.
The Respondent however submitted that the general risk of harm to which LDDW would be exposed if returned to his country of citizenship was not particularised to him, and that there was no evidence that LDDW would be any more exposed to harm than is the situation for other members of the general population.
The Respondent submitted that LDDW had not made out a claim that his repatriation would constitute a breach of Australia’s international obligations.
LDDW has set out certain claims relating to his situation if returned to El Salvador. Specifically, he submitted that he fears homelessness and lack of income (G7, p 231). He submitted that if members of gangs found out that he had come from Australia he could be kidnapped and ransom demanded (G2, p 73), and that he does not know the country, having left there aged eight (G2, p 70).
The Direction requires (at paragraph 8(2)) that the Tribunal give appropriate weight to evidence from independent and authoritative sources. The Respondent submitted a November 2019 travel advisory prepared by the Department of Foreign Affairs and Trade (DFAT) (Exhibit R4) which relevantly states:
Violent crime
Violent crime is widespread in El Salvador, including in the capital San Salvador. Incidents include: Murder; armed robbery; assault; extortion and kidnapping; sexual assault; carjacking.
Crime often involves guns and violent street gangs. El Salvador has one of the highest murder rates in the world. Violent crimes increase at night. Gang-related crime may affect you in El Salvador.
Gang members have been known to: kill police officers and public transport workers; attack bus drivers and passengers; place car bombs in vehicles; attack public transport with fire bombs; launch grenades in public places; kill and injure innocent bystanders.
Criminals on motorbikes commit robberies. You may be targeted if you display signs of wealth. Express kidnappings also happen, where criminals force you to withdraw funds from ATMs. Police and law enforcement can’t always respond to the high levels of crime.
…
Criminals may follow you from the international airport to assault or rob you.
LDDW claims that he may be vulnerable to specific harm as a person returning to El Salvador from abroad and may possibly be targeted by criminals as ‘wealthy’ purely because of that fact. This claim is somewhat supported by objective advice contained in the travel advisory, but that is aimed at tourists. In LDDW’s case, he would be travelling on a Salvadoran passport, he speaks Spanish and he would have no reason to self-identify as someone who has returned from overseas and therefore advertise what the travel advisory indicates could be a particular vulnerability. However, given that he left the country as a young child, the Tribunal finds that his lack of local knowledge may be an added factor in alerting criminal elements and, consequently, may amplify his vulnerability.
The Tribunal is not satisfied, in terms of the information before it, that the claims articulated by LDDW rise to the level of convention-related harm. He has made general claims about the current situation in El Salvador and has furnished a number of news articles referring to the volatile situation in that country. The Tribunal accepts the factual picture in El Salvador which this material paints, which is consistent with the DFAT travel advisory.
On balance, the Tribunal is satisfied that a case may be made out that LDDW would face greater potential danger than a member of the general population if repatriated. However, to make a finding on that would require a more detailed assessment and interrogation of those claims, such as those which would be conducted if LDDW applied for a protection visa. The Respondent noted during the hearing that it is open to the Applicant to make such an application. If he does so, such an application would be considered under section 36 of the Act, and a decision-maker would be required, by the terms of Part 2 of a different ministerial direction made under section 499 of the Act, Direction No. 75, to first assess LDDW’s refugee claims (under section 36(2)(a)) and any complementary protection claims (under section 36(2)(aa) of the Act) before considering any character or security concerns.
Some of the general claims that LDDW has made should be taken into account more properly under the part of the Direction where a decision-maker must consider the extent of impediments a non-citizen would face if removed to his or her own country, and that will be further considered below.
The Tribunal finds that this consideration weighs neutrally in this assessment because claims of harm relevant to LDDW to not rise to the level of specificity which would engage Australia’s international obligations.
Other consideration – Strength, nature and duration of ties [to Australia] (paragraph 14.1)
The Direction requires the Tribunal to have regard to how long LDDW has resided in Australia, including whether he arrived as a young child. Less weight should be given where a non-citizen began offending soon after arriving in Australia and more weight should be given to the time the non-citizen has spent contributing positively to the Australian community. The Tribunal must also consider the strength, duration and nature of any family or social links with Australian citizens or others who have an indefinite right to remain in Australia.
LDDW arrived in Australia at the age of 12 and has been in this country for some 36 years. The movement record provided by the Department (G2, p 97) records no subsequent travel out of Australia. Apart from briefly attending school in Costa Rica, LDDW has been educated in Australia. He commenced work immediately on completing high school and his work history has been consistent. AW notes in her written statement that LDDW has never had recourse to social welfare. The Tribunal took LDDW through his work history and is satisfied that he has made a positive contribution to Australia through this employment.
LDDW also gave both written and oral evidence of his involvement in the Roman Catholic Church, both in terms of being a member of three congregations over his time in Australia and participating in church activities including choir, a church band, assisting the pastors and helping build a new church. The Tribunal accepts he was an active and valued member of the church community, and noted that one of the tasks he undertook was driving elderly parishioners so they could attend services.
LDDW has three Australian citizen children and one Australian citizen grandchild. It would appear from the statutory declaration provided by his older son, AS (G2, p 86) that they have a good and positive relationship. AS wrote:
From the years I can remember [LDDW] has been nothing but a hardworking man that did everything he could in his power to support our family and raise his kids, me being one of them. My father has always been there for us. Coming to Australia in 1984, fleeing a war-torn country, he has been nothing but a hardworking man and a loving father.
I understand that there are always consequences for our bad decisions and being part of the family affected, I can say that him serving time in a correctional facility was punishment enough. He as a person is no danger to society, causing no threat or harm to anyone. Deportation will be a one way ticket to the unknown for him, as he has no family overseas and all that is waiting for him is death or a life of poverty.
The Tribunal notes that this statutory declaration reflects AS’s own experiences of his relationship with LDDW and does not specifically address the nature of the offending to which LDDW has admitted against AD.
AW also wrote a statutory declaration (G2, p 87) in support of restoration of the visa, expressing the view that LDDW’s chances of survival, in her estimation, are ‘minimal’ because of the gang violence in El Salvador.
There was no material before the Tribunal in relation to LDDW’s youngest son, AY, but the Tribunal is satisfied that, it is reasonable to conclude that, were LDDW not in detention, he would have a positive involvement in AY’s life. I find it would be of significant detriment to him were his father to be deported.
LDDW’s own evidence was that he has had no contact with his daughter since early 2018, and her views are otherwise not known.
On balance, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively heavily so.
Other consideration – Impact on Australian business interests (paragraph 14.3)
The Direction requires the Tribunal to address what impact there would be on Australian business interests if a person’s visa is not restored, noting that an employment link would only generally be given weight where non-revocation would significantly compromise the delivery or a major project or important service in Australia.
While, as noted above, the Tribunal accepts that LDDW has a commendable employment history, there was no evidence before it that his repatriation would significantly compromise a major project or important service.
The Tribunal finds that this consideration, as articulated in the Direction, is not engaged in this particular case, and therefore weighs neutrally in this assessment.
Other consideration – Impact on victims (paragraph 14.4)
The Direction requires a decision-maker to take into account the impact not to revoke the mandatory cancellation of a non-citizen’s visa on victims of a person’s criminal behaviour and the impact on family members where that information is available.
LDDW said that AD, the victim of his offending, did not know of his visa hearing and that he had contained that information only to his brother-in-law and one son, AS. There was no other evidence before the Tribunal that AD knew of the visa cancellation and there was evidence that she had no contact with LDDW, or, on his evidence, with her mother and older brother, since January 2018.
However, there is evidence that AW and AS were aware of the visa cancellation, because of their statutory declarations (G2, p 86 and 87) urging that the visa be restored. The Tribunal accepts these views but has considered them in relation to the strength and nature of ties LDDW has with his family and concludes that this particular consideration focusses, in this case, on AD as the only victim of the offending.
As AD’s views are unknown, this consideration weighs neutrally.
Other consideration – Extent of impediments if removed (paragraph 14.5)
The Tribunal is required to take account of the extent of any impediments that LDDW may face if he is removed to El Salvador, in establishing himself and maintaining basic living standards, in the context of what is available generally to other citizens of that country. The Tribunal should consider these impediments with an eye to LDDW’s age and health, any substantial language or cultural barriers he may face, and any social, medical and/or economic support available to LDDW in El Salvador.
LDDW is 48. When directly questioned by the Tribunal he attested to being in good physical health, but that he had suffered certain mental health challenges. As mentioned, a psychiatric registrar at Ravenhall records a diagnosis of an acute stress reaction in April 2019 and an apparent past depressive episode. Former legal representatives of LDDW wrote in August 2019 (G2, p 101) that he had undertaken counselling sessions and his
treatment has addressed his depression and anxiety, provided therapeutic structures through which his childhood abuse and trauma can be better understood and processed by him, and to better understand the deep impacts of what he has done.
(Emphasis added.)
Noting Dr Maher’s report as set out above, it is not clear from the evidence that LDDW continues to suffer from any mental health condition. He may, but there is insufficient evidence before the Tribunal as to whether the condition Dr Maher refers to has resolved.
The Respondent submitted that ‘as a citizen of El Salvador, he would have access to El Salvador’s welfare regime and low-cost housing, medical assistance and employment programs’ and in support of this submission drew the Tribunal’s attention to an extract from Britannica Online Encyclopaedia (Exhibit R5).
That document relevantly says:
Health and welfare
Despite a number of governmental attempts to achieve a more equitable distribution of income through a major program of agrarian reform in the late 1970s, as well as improvements in education and social services following the war, progress in El Salvador has been exceedingly slow. Low-cost housing, medical assistance, and employment programs were improved upon in an attempt to meet the needs and problems of the displaced and the unemployed, but such programs have had difficulty in keeping up with deteriorating conditions. The doctor-to-patients ratio is low, and most doctors serve only urban areas. Moreover, in many areas the war and population displacement have caused the reappearance and spread of diseases, particularly dengue fever, malaria and cholera. Malnutrition is increasingly prevalent.
The DFAT travel advisory states that there is a risk in El Salvador in the wet season of particular insect-borne illnesses, namely chikungunya (a mosquito-borne infectious disease), dengue, Chagas disease and leishmaniosis (an infectious disease which causes skin ulceration). The travel advisory also refers to a low risk of malaria and that Zika virus is widespread.
In terms of other prevalent diseases, the travel advisory records that HIV/AIDS is a significant risk in El Salvador, and the following diseases are common: tuberculosis, hepatitis, typhoid and rabies.
LDDW said that he did not currently take any medication. He referred to past medication for hypertension. The travel advisory does not contain specific advice about the availability of medicines in El Salvador but advises that not all medication available over the counter or by prescription in Australia is available in other countries.
The Tribunal notes that on his own evidence LDDW is fluent in Spanish. It is reasonable to conclude that he may face some cultural barriers because of his long absence from El Salvador. It is self-evident that the social welfare structures in that country are not equivalent to what is available in Australia and the Tribunal considers that the Respondent’s submission about the access LDDW would have to certain social services seems to be based solely on the online encyclopaedia entry. This is a somewhat frail source.
The Tribunal notes that LDDW has a good work history and has developed several useful practical skills, and that he has improved himself by obtaining a qualification in caring for the aged. However, taking all the factors into account, the Tribunal agrees with the Respondent’s oral closing submissions at the hearing that the impediments LDDW would face if repatriated are ‘significant.’
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Summary and other relevant matter
The Tribunal must consider whether, under section 501CA(4)(ii) of the Act, there is ‘another reason’ why the original decision to cancel the visa should be revoked. In deciding whether to exercise this discretion, the Tribunal must weigh up all the considerations it is obliged to consider in Part C of the Direction, but is not limited only to those considerations and may take into account any other relevant factors under the Act.
LDDW submitted that the Tribunal should consider the impact of the decision not to revoke the cancellation of his visa on his new partner, LC. LC submitted a statement (Exhibit A9) which stated that she had ‘been together’ with LDDW for almost two years. LDDW confirmed that LC still resides in the Philippines. LDDW said that he met LC though a dating website when she was visiting her sister in Melbourne and he had funded her to visit Australia twice since 2017, in part so she could visit him. LC is a widow with two children of her own and LDDW said that he provides financial support to LC and her family as they experience financial hardship.
The Tribunal accepts that LC is a person who would be affected if LDDW is repatriated. Ms Noronha asked LDDW whether, if his visa was not restored, he would consider moving to the Philippines, where LC lives, but the Applicant said that if he is returned to El Salvador his relationship with LC would be ‘over’ because he would not be in a position to provide continuing financial support to her.
The Tribunal accepts that LDDW may have been supporting LC, but, as she is not a resident of Australia or an Australian citizen, this factor does not, in the Tribunal’s assessment, rise to the status of being a significant or determinative factor in its consideration.
Conclusion
There are considerations in this assessment which favour the restoration of LDDW’s visa, in particular the primary consideration of the interests of his minor son, and the extent of impediments he would face if removed to his country of birth, as well as the strength and nature of his links to Australia.
There are also two primary considerations which the Tribunal has found support the decision not to revoke the cancellation of the visa, especially the protection of the Australian community (noting the nature and seriousness of the offence), and the expectations of the Australian community.
The Tribunal concludes, after careful consideration of the Direction and of all the relevant circumstances relating to LDDW’s application, that, given the gravity of the offence and the serious nature of the harm that would result of the Applicant re-offended, the discretion is not enlivened to the extent that there is another reason under this part of the Act that the mandatory cancellation of LDDW’s visa should be revoked. The Tribunal finds, after this weighing exercise, that the decision under review was the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 146 (one hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
……
[sgd]……………………………………………
Associate
Dated: 23 January 2020TABLE OF EXHIBITS
Exhibit A1 Statement of the Applicant (3 parts)
Exhibit A2 Atlantic Monthly excerpt ‘Returnee to El Salvador’
Exhibit A3 Excerpt ‘Returnee to El Salvador’ (unidentified source)
Exhibit A4 Excerpt ‘Support for deportees – work and living (unidentified source)
Exhibit A5 Reuters article ‘Deadly gang extortion rackets drive emigration from El Salvador’
Exhibit A6CNN article ‘Torn from their families in the US, Salvadoran deportees return to a gang ravaged homeland’
Exhibit A7 Dr Sam Nickels ‘Access to mental health care in El Salvador’
Exhibit A8Center for Disease Control and Prevention – Refugee Health Profiles ‘Mental Health – Central American Refugee Health Profile’
Exhibit A10 Webpage ‘Expatistan – Cost of living in El Salvador’
Exhibit A11 Webpage ‘Wage Indicator – Minimum Wage El Salvador’
Exhibit A12 Chicago Tribune article ‘A month after asylum seeker’s return to El Salvador a gang made good on death threats’
Exhibit R1 ‘G’ documents
Exhibit R2 Annexure – Summons material from Victoria Police dated 2 December 2019
Exhibit R3 Annexure – Summons material from Victoria Police dated 3 December 2019
Exhibit R4 – Annexure – Department of Foreign Affairs Smart Traveller advice – El Salvador, dated 4 November 2019
Exhibit R5 – Annexure – Britannica On-line encyclopaedia extract ‘El Salvador’
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