LLYW and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 465

LLYW and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 465 (31 December 2024)
Applicant/s:  LLYW
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8166

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:31 December 2024
Date of written reasons: 14 January 2025

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the discretion arising under section 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant a Resolution of Status (Class CD) visa not be exercised.
Written reasons for this decision will be provided within a reasonable time of the date of this decision.

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Senior Member N Manetta

CATCHWORDS
MIGATION – refusal of Resolution of Status visa – section 501(1) of Migration Act, 1958 –applicant arriving in Australia as an unauthorised maritime arrival – applicant presently on Bridging Visa pending removal – applicant seeks Resolution of Status visa to permit him to remain permanently in Australia on an ongoing basis – applicant commits very serious sexual offence against a child – low risk of reoffending – applicant has dependent wife with substantial health difficulties – applicant’s wife pregnant – applicant has six-year old daughter – decision under review set aside
LEGISLATION
Migration Act, 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

Statement of Reasons

On 31 December 2024, I delivered my decision in this matter and indicated that written reasons would be provided within a reasonable time. I now publish my written reasons.
This is an application by ‘LLYW’, a person whose name has been anonymised and to whom I shall refer as ‘the applicant’ in these reasons. The applicant seeks a review of a decision of the respondent’s delegate dated 9 October 2024.[1] By that decision, the delegate decided to refuse to the applicant what is called a ‘Resolution of Status (Class CD) visa’. The visa was refused under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’). Section 501(1) of the Act permits the respondent Minister, in the Minister’s discretion, to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the so-called ‘character test’.
[1] The delegate’s decision was before me in evidence: see Hearing Book (‘HB’), 23ff.
The applicant was refused the visa as a result of very serious offending that involved unlawful sexual intercourse with a 12 year-old minor who had been residing with the applicant’s family at the time of the offending. The respondent’s delegate first decided that the applicant failed the ‘character test’ as elaborated in section 501(6) and (7) of the Act, and therefore concluded that the jurisdictional threshold for the exercise of the discretion in section 501(1) had been satisfied. That conclusion was not challenged and is self-evidently correct. The applicant has been sentenced to a term of imprisonment of at least 12 months, and had, therefore, a ‘substantial criminal record’, as defined.
The delegate then proceeded to apply Direction 110 (‘the Direction’) issued under section 499 of the Act.[2] The delegate was obliged to apply the Direction under section 499(2A), and I, too, am obliged to apply the Direction as part of my review. The Direction calls for an evaluative assessment of considerations relevant to the individual case and then a weighing of those considerations. The assessment and weighing are informed by the Direction’s terms. The conclusion that is reached at the end of the assessment and evaluation determines whether the discretion to refuse the visa ought to be exercised. As a result of his or her application of the Direction, the delegate decided to exercise the discretion in section 501(1) to refuse the applicant a Resolution of Status visa.
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
The Applicant has now brought an application to the Tribunal seeking a further review. At the hearing before me, Ms Battison appeared for the applicant; Mr Harvey, for the respondent. I acknowledge their assistance to me in this difficult case.
TRIBUNAL’S TASK
In matters like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[3] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.[4]
[3] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
[4] This paragraph is one that I regularly insert in my decisions as it is general in nature.
STATEMENT OF CONCLUSION
I have decided that the discretion under section 501(1) should not be exercised to refuse the applicant a Resolution of Status visa. I shall first set out the salient facts and then my reasons for this conclusion.
FACTS
By way of background, I first note that the applicant has approached the former Administrative Appeals Tribunal (‘AAT’) in the past in connection with this offending. The AAT decision was before me.[5] On that earlier occasion, the respondent had cancelled the applicant’s class XD Subclass 785 Temporary Protection visa under the Act on account of the same sexual offending. This visa was not reinstated by the internal review delegate but it was reinstated as a result of the AAT’s decision. The AAT decided, amongst other things, when applying the direction that then applied, that the applicant’s temporary protection visa should be reinstated because, without reinstatement of the visa, the applicant faced the prospect of indefinite immigration detention.
[5] See Hearing Book (‘HB’),127ff.
I note that the applicant does not face that same prospect as a result of the delegate’s decision in this case. The applicant is currently the holder of a Class WR Bridging R (Removal pending) (subclass 070) visa. As its name suggests, the visa is granted pending the removal of the visa-holder from Australia to an appropriate and safe third country. In this case, it is accepted that the applicant cannot be safely returned to his country of birth, Myanmar, and that he is owed non-refoulement obligations under international law in respect of Myanmar. If the decision before me were affirmed, the applicant would not be returned to immigration detention, but would remain on this visa in the Australian community pending his removal from Australia. The conclusion and reasoning of the AAT in the earlier matter, based as they were on the prospect of indefinite detention and on a weighing of considerations arising under an earlier version of the Direction, are of limited relevance in my view. I have approached the question of whether the applicant should be refused a Resolution of Status visa completely afresh.
BACKGROUND FACTS
I now turn to summarise the background facts. The applicant is 33 years of age. Ethnically, he is Rohingya and lived his life in Myanmar before arriving in Australia in 2013. It would appear that he arrived as an unauthorised maritime arrival on Christmas Island. He was granted a temporary protection visa on 17 April 2018. The applicant’s personal circumstances form, dated 21 February 2020, states that the applicant had met his wife through his brother and that they ‘had been together for some three years’ at that time.[6] She is recorded in the form as being a stateless Palestinian at that time. The applicant and his wife are still married and have a six-year old child. Moreover, the applicant’s wife is expecting another child as at the time of my decision in this matter.
[6] HB, 93.
I now turn to the applicant’s very serious offending. The applicant’s criminal record, which was before me,[7] consists of an offence of aggravated unlawful sexual intercourse with a 12 year-old female minor. The applicant was sentenced to six years’ imprisonment with a non-parole period of three years and nine months. The sentencing remarks were before me.[8] I accept them and have relied upon them.
[7] HB, 47-48.
[8] HB, 49ff.
I turn now to describe the offending and I base myself on the sentencing Court’s remarks. In early January 2018, the victim contacted her father asking to leave the family home as she and her sister had been assaulted by their mother. The victim’s father phoned the applicant’s wife (who is also his niece).[9] The applicant and the applicant’s wife agreed to take in the victim and the victim’s sister until the victim’s father returned from an overseas trip. The victim arrived in the applicant’s home in early January. At some point later in January, the applicant kissed the victim on the mouth. The next day, the applicant found himself in his car with the victim. The victim and the applicant had just been to a supermarket, and the applicant had placed groceries on the front passenger seat. With no room to sit in the front, the victim was obliged to sit in the back of the car. At some point, the applicant parked the car and joined the victim in the back of the vehicle. He undressed the victim fully, removed his own clothing and exposed his penis. He said to the victim that he wanted to have sexual intercourse with her. He first manipulated the victim’s breasts. He then pulled out a black and purple container of lubricant that had the words ‘Love Sex’ on it. He applied lubricant to his penis and to the victim’s vagina. He made the victim lie down in the back seat, grabbed hold of her legs, and pulled her towards him. He then had unprotected vaginal intercourse with the victim for some minutes. He withdrew and ejaculated into a tissue and threw the tissue into a nearby rubbish bin.
[9] The applicant’s wife and the victim are, therefore, biological cousins.
There were subsequent occasions when the applicant and his family visited the victim’s home. On these occasions, notes were left for the victim, one of them containing a message that the victim should not tell her father.
At the time of the offending, the applicant was 26 years of age; his victim, only 12. The court found that the offending had a level of preplanning. The sentencing Court indicated that it accepted the prosecutor’s summary of the circumstances dealing with the objective seriousness of the offence (with the exception of the submission that there had been an inherent breach of trust and authority).[10] These circumstances are recorded as follows: the act of intercourse was penile/vaginal; the intercourse lasted for a few minutes, i.e., a not insignificant period of time; there was a significant age disparity between the offender and the victim; the victim was only 12 (and midway between the age range for the offence (namely 10 to 14)); an element of force was used in that the victim was made to lie down in the car, the applicant grabbed her legs and pulled her towards him; the intercourse was unprotected and the victim was exposed to a risk of pregnancy or a sexually transmitted disease; the applicant told the victim that he loved her which displayed cunning and deliberate manipulation; the applicant abused his position of trust and power by asking the victim not to tell her father or his wife about the act of intercourse; and finally there was a demonstrated degree of preplanning.[11]
[10] HB,56.
[11] HB 52-53.
The applicant’s sentence was backdated to 2 July 2018. The head sentence expired on 1 July 2024. It would appear from the records before me that the applicant was paroled on 1 April 2022 (that is, three years and nine months after commencing his sentence on 2 July 2018),[12] and that he entered immigration detention on that same day as his temporary protection visa had been cancelled. It would also appear that he remained in immigration detention until 9 October 2024, when he was granted a Bridging Visa R.[13] His application for a Resolution of Status (Class CD) visa was also refused on that day. As I have indicated, the applicant is presently in the community on a bridging visa.
[12] HB, 736, 738.
[13] See respondent’s SOFIC, HB, 195 [16]. I note that the applicant’s temporary protection visa had presumably expired at the time of the AAT decision reinstating it in September 2022: see HB, 109 [1.8]..
REASONS
In these matters, I usually set out certain standard remarks that I have drafted in respect of the Direction. I do so again, and they appear below in paragraphs [17] to [20].
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over ‘other’ considerations.
Application of the Direction
I now turn to apply the Direction. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) provides that when considering the protection of the Australian community, decision-makers should keep in mind, amongst other things, that the safety of the Australian community is the highest priority of the Australian Government. Decision-makers need to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they have been law-abiding and will not cause threaten harm to individuals or the Australian community. I note that this principle has particular application in respect of the serious harm that non-citizens may inflict upon children in the Australian community as a result of a sexual assault.
Decision-makers are also required to give consideration to the nature and seriousness of the non-citizen’s conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. The applicant’s offending in the community has comprised the very serious sexual assault of a 12 year-old minor, but there is no other offending for me to consider.
Under paragraph 8.1.1(1) I am to have regard to a number of matters set out in paragraphs (a) to (i), when considering the nature and seriousness of the noncitizens criminal conduct. A crime of aggravated unlawful sexual intercourse against a 12 year-old girl is self-evidently very serious. I note further that it was also an act of ‘family violence’ in that the victim was at that point a member of the applicant’s family (since she was a cousin of the applicant’s wife who had been entrusted to the applicant’s care). This sort of crime is always to be treated very seriously under the Direction.
I note the sentence imposed by the Court was a very long one, which marked out the seriousness of the offending. I do not have evidence before me concerning the harm inflicted on this victim or her family;[14] but I note the sentencing remarks refer to child sex offences having profound and deleterious effects upon victims for many years if not for the whole of their lives.[15] I bear in mind that it would be very surprising indeed if this victim had not experienced very serious difficulties as a result of the experience and it would be surprising if the victim did not experience today continuing difficulties.
[14] Cf paragraph 8.1.1(d).
[15] HB, 55.
I must bear in mind the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.[16] There is only one charged offence, but I note that it was preceded by an indecent assault the day before (comprising the kissing) and the crime of unlawful intercourse was planned. It was a very serious offence and there was a clear opportunity for the applicant to re-consider his intentions before committing the act.
[16] Paragraph 8.1.1(1)(e) of the Direction.
Under the Direction, I must also consider the risk to the Australian community. By paragraph 8.1.2(1), I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. I bear this principle steadily in mind. The sexual assault of a child who is at that point a member of the perpetrator’s family is extremely serious.

I turn now to evaluate the risk of future harm. I am directed to assess the risk that may be posed to the Australian community by having regard to a number of matters ‘cumulatively’.[17] First, I should have regard to the nature of the harm an individual in the Australian community would suffer should the applicant engage in further criminal conduct. Self-evidently, any repetition of unlawful sexual intercourse with a minor could have the most profound impact on the victim. I bear in mind also that offending behaviour can impact, and will most likely impact, a victim’s family and friends. Parents and siblings, for example, suffer grievously when loved ones are assaulted in this way. I repeat that this sort of offending is extremely serious and is anti-social to a very high degree.
[17] Paragraph 8.1.2(2) of the Direction.
I must consider the likelihood of the applicant re-engaging in this conduct. I must have regard to information and evidence on the risk of the applicant reoffending and evidence of rehabilitation achieved by the time of my decision. I had before me an expert psychological report prepared by Dr Kwok.[18] I accept her expert opinion that the application of the so-called ‘Static-99R’ criteria appropriately leads to a conclusion that the applicant is at a low risk of reoffending sexually (according to those criteria alone). Dr Kwok accepts that these criteria do not include the so-called ‘dynamic’ criteria that may increase or reduce that risk assessment for a given individual.[19]
[18] HB, 224ff.
[19] HB, 233 [56].
I am not, however, satisfied, as Dr Kwok appeared to be satisfied, that there is any link between what the applicant maintains were unwanted sexual advances against him as a child and his offending. Both in her report and in her oral evidence, Dr Kwok attached significance to these events.
The events asserted by the applicant to have occurred are described in Dr Kwok’s report and it is important, I believe to set them out. The events are reported by the applicant to have involved a man on two occasions lying on top of the applicant when he was a boy. The applicant was clothed at the time. The man rubbed his erect penis against the applicant’s clothed bottom on two occasions. On another occasion, a different men touched the applicant on his private parts. When he was 21 years old, a man touched the applicant on his bottom when he was climbing a ladder, and the applicant told the man to stop.[20]
[20] HB, 227-228, [20]-[23].
If I am to take these events into account, I must be satisfied, first, that they occurred and, secondly, that they had some causative relationship with the very serious sexual assault upon the applicant’s victim. I note that these events were not reported as part of the sentencing process and were only first disclosed to the applicant’s lawyer in these proceedings.[21] I was pressed with the submission by the respondent that the events were concocted, and that suggestion was put to Dr Kwok. Dr Kwok pointed out that the symptoms the applicant has reported (namely, flashbacks and intrusive thoughts) would indicate that they were genuine experiences and not concocted ones.
[21] HB, 227 ,[22].
The three possibilities that occur to me in respect of the assessment of this evidence are, logically, as follows: first, the events did not occur; secondly, the events did occur but were causally irrelevant to the offending; and thirdly, the events did occur and were causally relevant to the applicant’s offending. I have decided that the combined probability of the first or second possibility, taken together, is higher than the probability of the third. I cannot be sure that the events occurred given their late reporting. As to Dr Kwok’s point, I would note that a person who wishes to manufacture a convenient medical history can readily discover what the recognisable symptoms are.
Moreover, on the assumption that the events did occur, I have struggled in this case to link the childhood occurrences, which were many years old, with the unlawful sexual intercourse in this case. True it is, as Dr Kwok indicated in her evidence, that unwanted sexual experiences can affect people in markedly different ways. But the unwanted sexual experiences suffered by the applicant did not involve intercourse, and it would appear the applicant was clothed on each occasion. The assaults, serious though they may have been, were quite limited. I think it is too speculative to link those events to a planned act of intercourse with a 12 year old child many years later. All in all, I am not persuaded that prior sexual abuse of the applicant had a causal link to the offending in this case, particularly when I consider that there was a degree of planning as found by the sentencing Court.
The rehabilitation prospects of the applicant were assessed as only ‘barely reasonable’ by the sentencing Court.[22] I have had regard to that assessment; but I am mindful that the remarks are now some five years old. They are not necessarily a guide to the present position of the applicant. The applicant has spent a considerable period of time in jail and has experienced immigration detention from his release on parole until October 2024. He spent more than six years in one form of detention or another. I bear in mind that this is the only recorded instance of criminal conduct in Australia by the applicant although it is of the most serious kind.
[22] HB, 61.
I believe the applicant is sophisticated enough to understand that any repeat of his conduct will only result in an even longer jail term. He has lost many years of his life as a result of his offending. He was not overborne by an impulse when he offended, but, to the contrary, had planned the crime. He had time to think about his proposed crime and to reconsider it. I believe that the applicant most probably took a calculated risk, thinking he could get away with the crime, and that now, in retrospect, he realises that even within the closed confines of his family, he is not immune from prosecution in respect of sexual misconduct. That insight will not be lost on the applicant in my belief.
I do not believe that the applicant has demonstrated any particular remorse. Before me, he denied important aspects of the sentencing remarks; especially those concerning elements that suggested preplanning. I reject his evidence in that regard as not honestly given. Applicants in this Tribunal frequently seek to downplay their offending thinking that they will obtain a strategic advantage. This human element is understandable, of course; but the absence of demonstrated remorse before me does mean, in my opinion, that I should not allow for a risk reduction for genuine remorse.
The Direction, however, asks me to evaluate risk not remorse as such. Whilst I appreciate that genuine remorse for the impact one’s conduct has had upon a victim may lower the risk of recidivism, the absence of demonstrated remorse for a victim does not mean the risk of recidivism is always high.
In my opinion, jail and immigration detention have had a strong deterrent effect for this applicant. He would be fearful of the consequences of a further prosecution and for the ongoing consequences for his young family of separation from him. In my opinion, the offending is this case is most appropriately seen to be a calculated gamble by someone who lacks fundamental respect for children’s rights. Indeed, he has prioritised sexual gratification over the child’s right to be free from damaging exploitation. My overall conclusion in this regard is that the applicant has calculated an advantage for himself, but he did not factor in the realistic possibility of jail.
Moreover, I take into account that the applicant will remain on a sexual offenders register, and he will be prevented from contact with other children.[23] I have also given consideration to whether the applicant’s daughter is at risk of assault. No evidence was led that that the applicant might pursue an incestuous sexual relationship with his own daughter, and it was not put to me by the respondent that I should infer that the applicant might do so. I do not have expert evidence to that effect before me, and I do not believe the evidence before me allows me to infer that the applicant would be likely to act upon any unnatural sexual interest in his own biological child as a result of his unnatural interest in his wife’s 12 year-old cousin. I have not proceeded, therefore, on the basis that that this latter scenario is likely.
[23] HB, 269ff.
My conclusion overall is that the risk of recidivism is low. Nevertheless, I must assess the low-level risk of recidivism ‘cumulatively’ with the nature and seriousness of the harm. The gravity of the harm is extremely high in this case.
I now turn to consider family violence.[24] The victim was staying with the applicant’s family at the time of the offending and is biologically related to the applicant’s wife. At the time of the offending she was, in my opinion, a member of the applicant’s family residing with the applicant. Paragraph 8.2(1) sets out the very serious concerns that the Government has about conferring on non-citizens the privilege of remaining in Australia. That concern is said to be proportionate to the seriousness of the family violence engaged in by the noncitizen. The sexual abuse of a 12 year-old minor is extremely serious, as I have said, and so the Government’s concerns are commensurately serious.
[24] Paragraph 8.2 of the Direction.
Subparagraph (3) directs me to consider a number of matters. I have already considered the frequency of the applicant’s conduct and whether there is a trend of increasing seriousness: it is sufficient if I simply refer to that analysis. I note that there has been one instance only of extremely serious offending rather than repeated offending. Nevertheless, it was an extremely serious act of family violence preceded by planning and an unlawful assault (the kissing).
I must assess rehabilitation achieved at the time of the decision. I am directed to take into account the extent to which the applicant accepts responsibility for his family violence- related conduct. This is somewhat difficult to gauge in this case. In his evidence to me, the applicant did not accept aspects of the agreed facts that were before the sentencing Court, and I do not believe that evidence was given honestly by him. At a very basic moral level, I accept that the applicant does not deny the wrongfulness of his behaviour and also does not deny that he, as an adult, bore final responsibility for the act of intercourse that took place. But I doubt that the applicant’s insight into his behaviour goes much further than that, and I doubt strongly that the applicant understands the impact of the behaviour on the victim. I think he lacks that basic insight. Accordingly, so far as the seriousness of the family violence engaged in by the applicant is concerned, it is very serious indeed.
By paragraph 8.3, I must consider the strength, nature, and duration of the applicant’s ties to Australia. Here, I must have regard to the interests of the applicant’s wife and to those of his young daughter. The evidence before me establishes that the wife has severe problems. The applicant’s wife’s conditions include intellectual disability, schizophrenia, depression and anxiety. She had a psychotic episode following the birth of her baby daughter in February 2018. She had had since 2013 several previous admissions to mental health units and is recorded as being well known to community mental health services.. She is also pregnant, and as 30 October 2024 the pregnancy was said to be three to four weeks. This history is not disputed by the respondent.[25]
[25] HB, 642-644.
The applicant’s wife has given a statement.[26] She refers in that statement to her own experience of increasing anxiety and depression while her husband was away from the family. She says candidly that she struggled to manage things on her own. She refers also to her chronic mental health problems which have made it difficult for her to manage daily life especially in connection with the raising of their daughter. She has struggled tremendously to take care of herself and their daughter in this time.
[26] HB, 215ff.
She refers very positively to the applicant’s contribution to family life especially now that she is pregnant again.
The daughter is only six years old. The applicant’s wife’s statement indicates that the daughter missed her father badly and often expressed a desire to be close with him. The applicant kept in regular contact with the daughter during his imprisonment. The applicant received visits until Covid-19 restrictions were imposed.
The impact of my decision will be important to this family. It is clear that the applicant does play an important role in his family’s life. The effect of my decision will not be, of course, to authorise the immediate removal of the applicant from Australia. He would remain on a bridging visa (pending removal) if I affirmed the decision under review. Affirming the decision under review would leave the applicant and the applicant’s family in an uncertain situation, however, where the applicant might be removed at any time. Whether and when he would be, in fact, removed if I affirmed the decision under review is of course a matter of conjecture at this point; but he is liable to be removed at any time as matters currently stand.
The applicant’s wife’s pregnancy does heighten concerns for the family because she must face the pregnancy with that uncertainty in mind, which is a special burden to her given her mental state.
I must also have regard to the interests of minor children affected by my decision.[27] I must consider the interests of the applicant’s daughter. Her interests do favour the applicant remaining in Australia. She will be affected by the sudden removal of her father at any point in the future during her minority. I note that she cannot rely on her mother in the same way other children might because her mother is struggling with her own health problems. The absence of a father will be even more keenly felt in this circumstance.
[27] Paragraph 8.4 of the Direction.
I do accept that the mother, to the best of her ability, fulfils a parental role; but her fulfilment of that role is attended by her own health problems. It is important to give due weight to the potential role of the applicant in his daughter’s upbringing.
I must have regard to the expectations of the Australian community. By paragraph 8.5(1), the Australian community expects noncitizens to abide by Australian laws while in Australia. As a norm, although not as an inflexible rule, the Australian community expects the government not to allow a noncitizen to remain in Australia where there has been a serious breach of the expectation. This principle has particular resonance in this case because the sexual offending against the minor was egregious.
Subparagraph (2) makes it clear that the refusal of a visa may be appropriate simply because of the nature of the character concerns or offences in question. Clearly enough, as is made clear in subparagraph (2), a sexual crime against a minor who is a part of the perpetrator’s family is a matter of the utmost seriousness and raises very serious character concerns. I note that I must apply the expectations as set out in paragraph 8.5 regardless of whether the applicant would pose a risk of causing physical harm to the Australian community in the future. I also note that I am to apply the expectations as set out in the paragraph without independently accessing them in any particular case: see subparagraph (4).
I must also have regard to so-called other considerations in section 9 of the Direction. The legal consequences of my decision do not include removal to Myanmar. It is clear that the applicant cannot be removed compulsorily to Myanmar as he is owed non-refoulement obligations. He will continue to hold a bridging visa (pending removal) if I affirm the decision under review. He will continue, therefore, to live in the Australian community under the visa, but he will be liable at any time to be removed from the Australian community to a safe third country. At the present time, no such country is envisaged; but that is not to say that a third country would never be found. I am unable on the evidence before me to form any conclusion as to when, if ever, the applicant might be likely to be removed to a safe third country; but, as at October 2024, it can be said that there was no reasonable prospect of the applicant being removed to a third country in the foreseeable future.[28]
[28] It is this that would apparently explain the decision to give the applicant a Bridging Visa rather than keep him in immigration detention.
There are no other matters for me to consider under section 9.
Weighing the considerations
I turn now to weigh the various considerations. I am immediately struck by the very serious nature of the applicant’s offending. There are multiple parts of the Direction that speak very strongly, and predictably so, against the applicant’s offending. I have set these out. Clearly, the applicant has committed a very serious sexual offence, in circumstances of aggravation, against a child. The act was an act of family violence against a vulnerable child who was staying with the applicant in circumstances where she had had to leave her own immediate family. The offending was premeditated as found by the sentencing Court. I cannot give the applicant credit for genuine remorse in respect of his victim although I have concluded that his risk of reoffending is low. Nevertheless, the community expectations consideration counts very substantially against him, and I note that the expectations of the community apply whether or not a person poses a measurable risk in the future to the Australian community. The applicant’s offending gives rise to the most serious character concerns; and, in general terms, it is an appropriate conclusion under the Direction that he not form part of the Australian community.
Nevertheless, this case raises very unusual circumstances. The applicant’s wife is unwell and suffers from an intellectual disability. She has a six-year-old to care for and she is pregnant again. She speaks highly of her husband in terms of his contribution to family life. Whilst a decision by me to affirm the decision under review could not lead to the immediate removal of the applicant, as it does in many other cases, the applicant would face the prospect of removal from Australia if and when a safe third country were found. It is not open to me on the evidence to form a view as to when the applicant would be removed. I cannot assess the likelihood in that regard. But the legal consequence of a decision by me to affirm the decision under review would be to expose the applicant and his family to ongoing uncertainty (as he would not have an unqualified and ongoing right to remain in Australia). In this regard, the interests of both the applicant’s wife and his six-year-old daughter do count very substantially.
I have often said, and repeat again, that spouses and children are very often the innocent victims of the crimes committed by a parent. A perpetrator’s crime frequently inflicts dysfunction upon his or her own family unit. The removal of the applicant from Australia would affect substantially the interests of the minor child and those of the applicant’s vulnerable spouse.
Furthermore, I do accept that the risk of the applicant reoffending is low, although not non-existent. It seems to me that he is very unlikely to commit a further offence given the dramatic consequences his sexual offending have had for him and for his family. If, as I suspect, the applicant thought that his crime would either go undiscovered or, if discovered, be kept within the confines of the family, he is now disabused of that illusion. He will appreciate that men are sent to jail in Australia for the very egregious offences they commit of a sexual nature against children in their family circles.

In all candour, I must say that I have little sympathy for the applicant as there is no plausible explanation for his behaviour other than a decision to gratify his sexual urges. But, as reprehensible as his behaviour was, I should not ignore his family role in respect of which, on the evidence before me, he has acquitted himself well: he presently makes a valuable contribution to his family’s life.
All in all, I am very concerned about the ongoing possibility of the applicant being removed from Australia at any time. That could well entail seriously negative effects for the family who may not be able to travel with him, or may choose not to travel with him, for one reason or another.
I have found this an extremely difficult case because the interests of the family members do not predominate automatically in the weighing process: no single factor does. I am mindful also of the importance of the ‘safety of the community’ consideration, which is given, generally speaking, a more prominent role to play in the assessment process than other primary considerations. But the weighing and balancing exercise in each case is clearly an individual one: I am to apply the Direction having regard to the specific circumstances of the individual case.[29]
[29] Paragraphs 5.1(2) and 5.2(7) of the Direction.
FINAL CONCLUSION AND FORMAL DECISION
After applying the Direction, I have decided that the preferable decision on the evidence before me is not to refuse the applicant’s visa application under section 501(1) of the Act. My formal decision is, therefore, to set aside the decision under review and to substitute a decision that the discretion arising under section 501(1) of the Migration Act 1958 (Cth) to refuse the applicant a Resolution of Status (Class CD) visa not be exercised.

64. I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.

.......[SGD]...................................................
Associate
Dated: 14 January 2025

Date of hearing: 16, 17 December 2024

Solicitor for the Applicant: Ms Battison, Heretic Law

Solicitor for the Respondent: Mr Harvey instructed by AGS

Date of hearing:	16, 17 December 2024
Solicitor for the Applicant:	Ms Battison, Heretic Law
Solicitor for the Respondent:	Mr Harvey instructed by AGS