LDWC and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 102
•17 February 2025
LDWC and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 102 (17 February 2025)
Applicant:LDWC
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10167
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:17 February 2025
Decision:The Tribunal affirms the decision under review.
...............................[SGD].........................................
General Member A. Maryniak KC
Catchwords
MIGRATION – Mandatory cancellation of applicant’s visa – Special Category Subclass 444 visa – failure to pass character test – where applicant invited to make representations that there is another reason under s 501CA – substantial criminal record – sexual offences against minors – Ministerial Direction No. 110 – primary considerations – protection of the Australian community – family violence – strength, nature and duration of ties – expectations of Australian community – other considerations – reviewable decision affirmed
Legislation
Family Violence Protection Act 2008 (Vic)
Migration Act 1985 (Cth)
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
INTRODUCTION
1.The Applicant, a 53-year-old citizen of New Zealand, seeks review of a decision dated 25 November 2024 not to revoke a decision cancelling the Applicant’s Special Category (Temporary) (Subclass 444) visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). He is currently serving a 9 year and 7 month term of imprisonment.
CONSIDERATION
2.The Tribunal has considered the testimony of the Applicant together with the documentary material before it consisting of exhibits R1 and R2,[1] and the submissions of the parties.
[1] Documents lodged pursuant to section 501G of the Act (‘Exhibit R1’); Supplementary ‘G’ documents lodged on 5 February 2025 (‘Exhibit R2’).
The Tribunal is to determine, pursuant to section 501(2) of the Act:
(a) Whether the Applicant passes the character test in section 501(6) of the Act; and
(b) if not, whether there is another reason why the cancellation decision should be revoked pursuant to s501CA(4)(b)(ii) of the Act.
Character Test
The Applicant having been convicted and sentenced to a term of imprisonment well in excess of 12 months means he has a substantial criminal record. Hence he fails to pass the character test by reason of sections 501(6)(a) and 501(7)(c) of the Act.
Direction No. 110
In determining whether there is another reason why the visa cancellation decision should be revoked under section 501CA of the Act the Tribunal is to apply Ministerial Direction 110 (‘the Direction’)[2] including the relevant primary and other considerations in paragraphs 8 and 9 therein. Paragraph 5.2 provides the following framework 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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
[2] The Act s 499.
The Tribunal, informed by these principles, then takes into account the primary and other considerations, with Primary Consideration 1 generally to be given greater weight, pursuant to paragraph 7(2) of the Direction, and the Primary Considerations to be given greater weight than other considerations. The protection of the Australian community is paramount.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of The Direction requires consideration be given 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.
Nature and seriousness of conduct to date
On 9 December 2016 the County Court convicted and sentenced the Applicant as follows:
(a) Charge one - producing child pornography, for which the applicant was sentenced to 18 months imprisonment;
(b) Charge two - committing an indecent act with a child under 16, for which the applicant was sentenced to 10 months imprisonment;
(c) Charge three - incest by step-parent, for which the applicant was sentenced to two years imprisonment;
(d) Charge four - committing an indecent act with a child under 16, for which the applicant was sentenced to 12 months imprisonment;
(e) Charge five - committing an indecent act with a child under 16, for which the applicant was sentenced to 6 months imprisonment;
(f) Charge six - incest by step-parent, for which the applicant was sentenced to two years imprisonment;
(g) Charge seven - committing an indecent act with a child under 16, for which the applicant was sentenced to 12 months imprisonment; and
(h) Charge eight - possessing child pornography, for which the applicant was sentenced to 8 months imprisonment.[3]
[3] Exhibit R1, G3 p 40.
On 27 February 2018 the Court of Appeal, Supreme Court of Victoria resentenced the Applicant to a total sentence of 9 years and 7 months (non-parole period of 7 years) with the Applicant sentenced as a ‘serious sexual offender’ in respect of charges 3 to 8 above ('the Sexual Offending’).[4]
[4] Ibid G7 p 58.
By its nature the Sexual Offending is viewed very seriously by the Australian Government and the Australian community involving ‘violent and/or sexual crime’, ‘crimes of a violent and/or sexual nature against women or children’ and ‘acts of family violence’.[5]
[5] The Direction sub-paras 8.1.1.(1)(a)(i), (ii) and (iii).
11.The very serious offending has been fairly summarised by the Respondent and the Tribunal adopts such summary as follows:
(a) The offending the subject of charges 2 to 7 was committed against the applicant's stepdaughter between 11 July 2012 and 1 February 2015, where she was aged between 12 and 14 years and the applicant was aged between 40 and 43 years. Charge 6 was the base charge of incest by stepparent. In relation to charges 3 and 6, the applicant denied that ever licking the victim's vagina or penetrating her, despite video footage showing otherwise (G6/46-47).
(b) Charge 1 related to videos recorded by the applicant of some of the sexual acts he performed with his stepdaughter and of his stepdaughter in a sexual context. The applicant turned this sexual exploitative material of his stepdaughter into a PowerPoint presentation and saved it. It is noted that the stepdaughter was not aware of any video recordings until the applicant's arrest (G6/45).
(c) Charge 8 included possession of those videos as well as child pornography that was unrelated to his stepdaughter, some of which were located on the applicant's shared Dropbox file to which at least one other person had access (G6/47-48). The videos and images were categorised into levels in accordance with the Australian National Victim Library/Child Exploitation Tracking System as follows:
(i) 2048 images fell under Category 1, no sexual activity;
(ii) 4 images fell under Category 2, where there is a child but no penetration;
(iii) 43 images fell under Category 3, which involved an adult but no penetration;
(iv) 86 images showing penetration of either a child or an adult; and
(v) 6 images involving sadism or bestiality.
(d) Charges 4 and 7 were each representative of two occasions of the offence of indecent act of a child under 16, namely indecent acts committed by the applicant against his stepdaughter. One representative occasion involved a monetary inducement.[6]
[6] The Respondent’s Statement of Facts, Issues and Contentions lodged 10 January 2025 (‘RSFIC’).
12.The sentencing remarks at trial (which were agreed to by the three Appellate Judges on the appeal)[7] highlight the fact that the Applicant was living with his then wife (as from 2011) and stepchildren (including the young complainant stepdaughter) at the time of the offending.[8] The Applicant and his then wife both worked shift work which usually resulted in them being home at alternate times. The remarks also reveal that the police uncovered the offending by searching the Applicant’s iPhone and iPad following the execution of a search warrant in July 2015, which was issued on information received that the Applicant had been accessing child pornography on the internet.[9]
[7] Exhibit R1, G7 p 74 at [64].
[8] Ibid p 44.
[9] Ibid G6.
13.The sentencing remarks and the ultimate custodial sentence imposed on appeal underscore the very serious and protracted nature of the Sexual Offending, including the gross breach of trust involved,[10] the offending having been committed in the face of distress and that the Applicant’s moral culpability was high. The nature of the pornography in the Applicant’s possession included material of the “grossest and most exploitative kind”.[11] The non-parole period set on appeal is consistent with the very serious nature of the offending as is the fact that the Applicant was sentenced as a ’serious sexual offender’ with lifetime reporting obligations.
[10] Ibid p 53 [50].
[11] Ibid 54 [58].
14.During the hearing the Applicant indicated that he took issue with some of the details within the offending, although essentially admitting that the Sexual Offending had occurred, but that he had pleaded guilty to save his now ex-wife (divorced about 3 years ago) and the victim any further trauma during the trial. In circumstances where the Applicant pleaded guilty to the Sexual Offending and was convicted of same, the Tribunal cannot impugn or question the factual findings underpinning such convictions,[12] and hence does not do so.
[12] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [63].
15.The Tribunal is satisfied that the Sexual Offending is very serious,[13] and finds accordingly.
[13] The Direction 8.1.1(1).
Risk to the Australian Community
The potential for very serious harm from any re-offending results in a lowering of the Australian community’s tolerance for any risk of future harm and the Tribunal is satisfied that the nature and extent of the Sexual Offending represents conduct that is so serious that any risk of re-offending is close to unacceptable, pursuant to paragraph 8.1.2(1) of the Direction.
17.In assessing any likelihood of re-offending, the Tribunal notes that whilst imprisoned the Applicant was reported using a computer in his prison cell to access images of naked females and images of minors on 5 March 2017. Despite pleading guilty to that breach,[14] the Applicant testified that no images of minors were involved. In light of the guilty plea on the record the Tribunal is unable to go further behind the breach as pleaded to, on the evidence before it. The Applicant also testified that he had not been charged with any similar breaches since 5 March 2017.
[14] Exhibit R2, SG4 p 93.
18.The Applicant was reported in respect of involvement in an altercation with another prisoner on 4 April 2019 and the Applicant testified that he was defending himself during this altercation. In any event the Tribunal notes that no charges were brought against the Applicant in respect of this altercation.[15]
[15] Ibid p 94.
19.The Tribunal notes that the Applicant’s parole application was denied on 17 February 2023 as the Applicant refused to participate in offence specific assessments or programs.[16] The Applicant stated that he was not aware of the availability of any particular courses leading up to his parole application, and since then he has attempted to arrange some offence specific rehabilitation. He provided to the Tribunal a letter dated 12 August 2024 confirming that he had participated in an assessment interview for the Better Lives Program and had been recommended for participation in that program.[17] Nothing further has occurred in respect of that program, the Applicant stating there was a long wait time for participation in this program. The Applicant says he has completed the Positive Parenting program and the Bounce program and is currently completing the Pet Care program. Otherwise, there is no evidence as to any offence specific rehabilitation courses or the like undertaken by the Applicant to date.
[16] See RSFIC ‘Annexure A’.
[17] Exhibit R2, SG1 pp 1-3.
20.The Applicant consistently stated throughout the hearing that he was remorseful for his Sexual Offending, and that he had thought about his offending and its dire consequences since his incarceration. In circumstances where he is due to be released next year he indicated that he would ensure that he would not live with minors in the future. He also indicated that if he were permitted to re-enter the Australian community, he would contribute money to a joint bank account he still holds with his ex-wife in an attempt to make ‘restitution’ to her and his victim.
21.The Applicant says he was formally diagnosed with PTSD and disassociation disorder by a psychiatrist in Bacchus Marsh in the past, but he was unable to remember her name. Other than that testimony and assertions to that affect,[18] there is no evidence before the Tribunal of any formal diagnosis. Likewise, there is no psychiatric or psychological evidence as to the Applicant’s current mental state, prospects of rehabilitation, risk of reoffending, insight to offending or remorse. The clinical notes from the Hopkins Correctional Centre in respect of the Applicant provide no real enlightenment in this regard.[19] What is evident is that the Applicant declined further appointments with the Registered Psychiatric Nurse from 23 April 2021[20] and only had one further ‘informal’ meeting with a Mental Health Nurse.[21]
[18] See for example Exhibit R1, G10 p 107.
[19] Exhibit R2, SG3 pp 22-91.
[20] Ibid p 50.
[21] Ibid p 27.
22.The Tribunal finds the Applicant has not undertaken any offence related rehabilitation. In the absence of any independent evidence as to the risk of re-offending, the Tribunal is satisfied, in light of the very serious nature of the Sexual Offending, that this consideration weighs very heavily against revoking the cancellation decision.
Family Violence
The Direction defines “family violence”[22] and the Sexual Offending directed towards the stepdaughter falls within that definition, noting that a family member, for the purposes of the definition includes “a person who has, or has had, an intimate personal relationship with the relevant person”. The Applicant is the relevant person, and the Tribunal finds the stepdaughter to be a family member for the purposes of the Direction. For completeness, the Tribunal notes that a stepdaughter is considered a family member under state legislation in Victoria.[23]
[22] The Direction para 4(1) (definition of “family violence”).
[23] Family Violence Protection Act 2008 (Vic) ss 8 and 10.
24.On the basis of the analysis discussed above, the Tribunal is satisfied that Sexual Offending included family violence which was serious. Further, in respect of paragraph 8.2(3) of the Direction, the Tribunal notes such offending continued over a 30-month period, the Applicant often pleaded and begged for his stepdaughter to take part, and intimate footage was taken of aspects of the Sexual Offending without her knowledge and access to such material was shared with at least one individual.[24]
[24] Exhibit R1, G6 p 45.
25.Such repeated acts would result in a cumulative effect upon the stepdaughter, and at the time of sentencing the stepdaughter was suffering from panic attacks, had anxiety, and was not eating or sleeping well.[25] Further, as discussed above, no rehabilitation has occurred.
[25] Ibid G7 p 67.
26.In the circumstances the Tribunal finds that this primary consideration weighs heavily against revoking the cancellation decision.
The strength, nature and duration of ties to Australia
The Applicant, having arrived in Australia, with his mother at the age of 5, spent his early formative years here and did “all [his] schooling here”.[26] However, the Applicant has spent significant periods of his adult life living away from Australia, in New Zealand. This includes a 3-year period between 1995 and 1998, a 7-year period between 1998 and 2005, after which he returned for 3 weeks then departed Australia again until 2007. He also departed Australia in December 1985 however there is insufficient evidence to determine when he returned to Australia other than the fact that he again departed Australia for a few weeks on 19 March 1990.[27] In any event, the Applicant has spent a significant part of his adult life in New Zealand.
[26] Ibid G10 p 111.
[27] Ibid G13 pp 113-4.
28.The Applicant is no longer married to his former wife, his parents have passed, and he is essentially estranged from other relatives living in Australia. Consistently, no family members have provided any statements in support of the Applicant. Save for very limited contact with his former wife, the Applicant has no ties to Australia in respect of immediate family.
29.Whilst the Applicant has made some positive contribution to Australia by working and paying taxes as is evident from the sentencing remarks, he otherwise has very limited ties with Australia.
30.Overall, the Tribunal is satisfied that this primary consideration weighs only slightly in favour of the revocation of the cancellation decision.
Best interests of minor children in Australia
On the evidence before the Tribunal there are no minor children that will be affected by this decision. In the circumstances this primary consideration is given neutral weight.
Expectations of the Australian community
The expectations of the Australian community is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered, without independently assessing the community’s expectations in the particular case.[28]
[28] The Direction para 8.5(4).
33.By reason of the matters discussed above, particularly the nature and duration of the Sexual Offending, with the offending falling within paragraph 8.5(2)(c) of the Direction, the Tribunal is satisfied that the Australian community would expect the Australian Government to cancel the Applicant’s visa.
34.The Tribunal is satisfied that this primary consideration weighs very heavily against the revocation of the cancellation decision.
OTHER CONSIDERATIONS
Legal Consequences
The Applicant testified that daughter had informed him in 2016 that if he returned to New Zealand his life would be in danger from the Head Hunters Motorcycle gang and that “they will end you”. He says the danger is real and that he is fearful of that gang if he is returned to New Zealand. The Applicant also expressed a more general fear in 2018.[29] There is no further evidence before the Tribunal is respect of this purported danger. Such limited evidence of a potential threat is not persuasive.
[29] Exhibit R1, G10 p 110.
36.In any event, it is open to the Applicant to make any protection visa application he may be advised to make. Subject to that, a direct and immediate consequence, if the Tribunal affirms the reviewable decision would be that the Applicant would be liable for removal from Australia as soon as reasonably practicable,[30] Further, the Applicant is unlikely to be eligible for the grant of a further visa (other than any protective one) that would allow him to remain in or return to Australia.
[30] The Act ss 189 and 198; the Direction para 9.1.
37.Also, as submitted by the Respondent:
… as the applicant would be returning to New Zealand, there is no evidence to suggest that the applicant would be unable or unwilling to available himself of the protection of New Zealand authorities in the event that he faced any risk of harm from bikies in New Zealand (see s 5LA of the Act, and see also Article 33(1) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention), and Article 1A(2) of the Refugees Convention which defines a refugee as a person who is unable or unwilling to avail themselves of the protection of that country).[31]
[31] RSFIC [73].
38.As it is open to the Applicant to apply for a Protection Visa, the Tribunal having identified, read, understood and evaluated the submissions of the Applicant in this regard, it defers assessment of whether the Applicant is owed non-refoulment obligations.[32]
[32] The Direction para 9.1.2(2).
39.The Tribunal finds that this Other Consideration weighs only slightly in favour of revoking the cancellation decision.
Extent of impediments if removed
The Applicant says that he suffers from Post Traumatic Stress Disorder, dissociative disorder and depression arising from sexual abuse he suffered as a child. There is limited evidence as to the extent of any formal diagnosis save for the matters discussed in paragraph 21 above. Otherwise, the 53-year-old Applicant is in good health and will not face any significant linguistic or cultural barriers.
41.The Applicant accepts that he will be able to access the various medical and economic supports which other New Zealand citizens are entitled to, and the Tribunal so finds. Also, if necessary, the Applicant will be able to access the counselling services available to New Zealand citizens which would be of a comparable standard to those available in Australia.
42.Employment wise, the Tribunal notes that the Applicant has worked as a truck driver, prior to his incarceration, in both New Zealand and Australia for more than 20 years.[33] Apart from a perceived difficulty the Applicant raised apropos of the purported 2016 threat from the Head Hunters Motorcycle gang, the Applicant could otherwise resume his working life as a truckdriver in New Zealand, if necessary.
[33] Exhibit R1, G6 p 50.
43.Obviously there will be some short-term challenges however in time the Applicant will be able to achieve basic living standards which are available to fellow New Zealand citizens, as he did during the various periods he has lived in New Zealand in the past.
44.The Tribunal finds that this Other Consideration weighs only slightly against the revocation of the cancellation decision.
Impact on Australian business interests
No evidence or submissions are before the Tribunal in respect of any impact upon any Australian business interests. In such circumstances the Tribunal gives this Other Consideration neutral weight.
CONCLUSION
The Tribunal has carried out the evaluative exercise of weighing up the considerations to determine whether it is satisfied that there is another reason to revoke the visa cancellation decision.
47.On balance, having allocated the requisite weights to the Primary and Other Considerations as discussed above, and applying the respective weights as found by the Tribunal, the Tribunal is satisfied that the considerations against revoking the visa cancellation decision far outweigh the considerations in favour of any revocation of that decision.
48.Accordingly, the reviewable decision is affirmed.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
.....................[SGD]...........................
Associate
Dated: 17 February 2025
Date of hearing: 10 February 2025 Applicant: Self-Represented Advocate for the Respondent: Ms Maryam Popal Solicitors for the Respondent: HWL Ebsworth
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