LQZW and Minister for Home Affairs (Migration) - [2019] AATA 93

LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (6 February 2019)
Division:GENERAL DIVISION
File Number: 2018/6769
Re:LQZW
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:6 February 2019
Place:Perth

The decision under review, namely the decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant’s Partner (Migrant) (Class BC) (Subclass 100) visa, is affirmed.
............[sgd]............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – decision not to revoke mandatory cancellation of visa – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(6)(e), 501(7), 501(7)(a), 501(7)(b), 501(7)(c), 501(7A), 501CA, 501CA(4), 501CA(4)(b)(ii)
CASES
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Nguyen and Minister for Home Affairs [2018] AATA 3726
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296; [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 6.3(4), 7(1)(b), 8, 8(3), 8(4), 13(1), 13(2), 13.1, 13.1(1), 13.1(2), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.2, 13.1.2(1), 13.1.2(2), 13.2, 13.2(4), 13.3, 13.3(1), 14, 14(1)(a), 14(1)(e), 14.2(1), 14.4, 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
6 February 2019
THE APPLICATION

This is an application for review of a decision made on 14 November 2018 under
s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Partner (Migrant) (Class BC) (Subclass 100) visa (the visa) (R2, G2).
The visa was cancelled on 26 April 2017 under s 501(3A) of the Act following the Applicant’s conviction of sexual penetration of a child under 13 and three counts of indecent dealings with a child under 13. On 2 February 2017 the Applicant was sentenced to 18 months imprisonment on those charges (R2, G4(m) at 115-116).
THE ISSUE
By operation of ss 501(6)(e) and 501(6)(a) of the Act (read with the definition of substantial criminal record in s 501(7)(c) of the Act), the Applicant does not pass the character test. The Applicant concedes that he does not pass the character test (Applicant’s SFIC (A1) at para. 42). The only issue for determination is whether the Tribunal is satisfied that there is another reason pursuant to s 501CA(4) of the Act why the decision to cancel the Applicant’s visa should be revoked.
BACKGROUND
The Applicant was born in Russia in November 1995. He is the only child born to his parents. From birth the Applicant was solely cared for by his mother.
The Applicant moved to Azerbaijan with his parents in 1996. During their marriage the Applicant’s father was physically abusive towards his mother and was unemployed and an alcoholic. The Applicant’s father left the family in 1997.
The Applicant lived in Azerbaijan with his mother until he was 13 years old. In July 2009 the Applicant arrived in Australia with his mother on her Azerbaijani passport. He has not left Australia since then and does not hold a passport of his own.
The Applicant’s mother met and commenced a relationship with the Applicant’s stepfather in November 2005, when the Applicant was aged 10. The Applicant’s stepfather is an Australian citizen.
The Applicant attended the Intensive English Centre at [omitted] High School and later attended [omitted] Senior High School. He lived with his family in [omitted] before moving to [omitted] and later, [omitted].
The Applicant has two half-brothers. The Applicant’s eldest half-brother “D” was born in May 2010 in Western Australia. The Applicant’s second half-brother “M” was born in May 2012 in Western Australia. Both brothers are Australian citizens by birth.
The Applicant says that he began to consume alcohol and smoke tobacco and marijuana after moving to [omitted] with his family in or around 2010 and frequenting the [omitted] skate park. The family moved from [omitted] to [omitted] around two years later.
In or around 2011 the Applicant left school (in year 11) and completed a one-year Certificate I in Civil Engineering and Design Drafting at TAFE. He then commenced an apprenticeship in bricklaying, obtained his own Australian Business Number and commenced working as a bricklayer after completing the apprenticeship.
In September 2011 the Applicant was granted the visa.
In or around 2012 the Applicant was convicted of having punched another youth and stolen his scooter (Transcript at 21 and mother’s witness statement (A2) at para. 28). The Applicant, apparently, received a community work order for this offence. For some reason this offence (or offences given that on the Applicant’s evidence there was an assault of a minor as well as stealing) and sentence does not appear on the National Police Certificate of “Complete Disclosure” (R2, G4(a)).
In or around 2013 the Applicant made an application for Australian citizenship by conferral. This was refused as he did not meet the “good character” requirements for grant. While it is not clear on the evidence, the Tribunal assumes that this related to the offence involving the assault and theft of the scooter.
The Applicant’s mother became an Australian citizen in July 2014.
In August 2014 the Applicant was fined $400 for one count of disorderly behaviour in public. He states the circumstances of this offence were that he “skated off [the top of] a cop car” in Perth city (Transcript at 11). He pleaded guilty to this offence.
In or around January 2016, when the Applicant was aged 20, he was charged with one count of sexual penetration of a child under 13 and three counts of indecent dealings with a child under 13 years in relation to offences committed between 12 November 2010 and 27 July 2011 (the sexual assault charges). He pleaded not guilty to these offences.
He was found guilty after a trial apparently in November or December 2016. The date of the trial is not apparent on the papers and is not identified by Reynolds DCJ in his remarks made at the time of sentencing on 2 February 2017 (R2, G4(c)).
In April 2017 the Applicant’s visa was cancelled (see [2] above).
In January 2018 the Applicant was convicted of one count of aggravated home burglary with intent to commit an offence, for which he was sentenced to 14 months imprisonment (cumulative) from 11 January 2018. He pleaded guilty to this offence. The offence was committed on 19 January 2017 while the Applicant was on bail having been found guilty on the sexual assault charges and awaiting sentencing (Transcript at 49).
THE APPLICANT’S OFFENDING HISTORY
The Applicant’s offending history is outlined below (R2, G4(a); R6 at 94; Transcript at 21 and Applicant’s mother’s witness statement (A2) at para. 28):

Court Court Date Offence Court Result

Perth District Court of Western Australia 19 January 2018 Aggravated home burglary and commit; criminal code (wa); 401(2)(a) [counts 1] imprisonment: 14 months cumulative from 11-jan-2018. – cumulative

Perth Magistrates Court 30 January 2017 Possessed drug paraphernalia in or which there was a prohibited drug or place; misuse of drugs ACT 1981; 7b(6) [counts 1] $200.

Possessed drug paraphernalia in or which there was a prohibited drug or place; misuse of drugs ACT 1981; 7b(6) [counts 1] fine:$500. (Global)

Possessed drug paraphernalia in or which there was a prohibited drug or place; misuse of drugs ACT 1981; 7b(6) [counts 1] fine:$500. (Global)

Perth Children’s Court 2 February 2017 Sexual penetration of a child under 13.; criminal code (wa); 320(2) [juv][counts 1] imprisonment: 18 months concurrent from 02-feb-2017.-concurrent

Indecent dealings with child under 13 years.; criminal code (wa); 320(4) [juv][counts 1] imprisonment: 3 months concurrent from 02-feb-2017.-concurrent

Indecent dealings with child under 13 years.; criminal code (wa); 320(4) [juv][counts 1] imprisonment: 3 months concurrent from 02-feb-2017.-concurrent

Indecent dealings with child under 13 years.; criminal code (wa); 320(4) [juv][counts 1] imprisonment: 6 months concurrent from 02-feb-2017.-concurrent

Perth Magistrates Court 11 August 2014 Disorderly behaviour in public; criminal code (wa); 74A(2)(a) [counts 1] $400.

Date Outcome

In or around 2012 Stealing and assault (?) 60 hours’ community work
THE HEARING OF THE APPLICATION

The application was heard on 25 January 2019. The Applicant was represented by Ms Grazziotti and the Respondent was represented by Ms Jackson.
The Applicant gave evidence. The Applicant’s partner, the Applicant’s mother and his mother’s husband (now-separated from the Applicant’s mother) also gave evidence. The Applicant also called Mr Mercurio Cicchini, clinical psychologist, to give evidence.
The following documents were tendered:
·Applicant’s Statement of Facts, Issues and Contentions dated 10 January 2019 (Exhibit A1);
·Statement of the Applicant (undated) (Exhibit A2);
·Statement of the Applicant’s partner dated 9 January 2019 (Exhibit A3);
·Statement of the Applicant’s mother dated 10 January 2019 (Exhibit A4);
·Medical report by Mercurio Cicchini, clinical psychologist, dated 9 January 2019 (Exhibit A5);
·Applicant’s bundle of evidence (Exhibit A6);
·Respondent’s Statement of Facts, Issues and Contentions dated 18 January 2019 (Exhibit R1); and
·G-Documents, G1-G4 (Exhibit R2).
The Tribunal also had before it the Applicant’s reply dated 22 January 2019 to the Respondent’s Statement of Facts, Issues and Contentions (Applicant’s reply submissions).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person 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.
Section 501(6) of the Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7))...
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...
(Original emphasis.)
Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
The Tribunal also notes s 501(6)(e) of the Act which provides that a person is taken not to pass the character test if:
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child:
(ii) …
Section 501CA of the Act further provides:
(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.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision;
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Ministerial Direction no. 65
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that “[a] person or body must comply with a direction under subsection (1).”
On 22 December 2014 the Minister for Immigration and Border Protection made a direction under s 499 of the Act, named “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no. 65). Paragraph 6.1 of Direction no. 65 sets out the “Objectives” of the Act, with paragraph 6.1(3) of Direction no. 65 being relevant to the decision under review which is currently before the Tribunal. Under s 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 s 501(6)(a) of the Act (on the basis of s 501(7)(a), (b) or (c) or s 501(6)(e) of the Act) 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 s 501(3A) of the Act may request revocation of that decision under s 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.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4)(b)(ii) of the Act, including the Tribunal:
(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 vulnerable members of the community such as minors, 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.

Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14 of Part C of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise its discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)...
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE DECISION TO CANCEL THE VISA SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian Community (13.1)
Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:
... should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community...
Decision-makers should also give consideration to (paragraph 13.1(2) of Direction no. 65):
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 the conduct (13.1.1)
Paragraph 13.1.1(1) of Direction no. 65 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)
h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant “accepts that the 2011 offences (i.e. the three counts of indecent dealing with a child under 13 and the count of sexual penetration of a child under 13) will be considered particularly serious by the Tribunal due to their sexual nature and the fact that the offences were committed against a minor” (Applicant’s SFIC, A1, para. 48). The Tribunal so treats them.
The victim was a 10 year old girl who was the sister of a friend of the Applicant. The Applicant groomed the victim and sexually assaulted her over a period of some months.
The circumstances of the sexual offences, based on the statements of counsel and Reynolds DCJ’s comments at the sentencing, were as follows:
(Speaking of the victim’s background – counsel for the State): … but it was 10 or 12 primary schools that she had been to by the age of 10.      It's absolutely extraordinary. There was evidence that was suggestive of somebody who was living a hypermobile existence, moving from school to school, never really settling, not really having any friends. And if you put her evidence with her brother [omitted]’s evidence, what you have is [omitted] is off at the skate park.       He has absented himself from the – sort of the prosocial community. He's off doing his own thing and young [omitted] is hiding in the library. She's going to school early, she's staying late. She's staying in the library. She doesn't want to be around at home.
This offender has actually engaged with her brother and in that antisocial lifestyle that her family is leading, but she's trying to steer clear of, and he pays attention to her. There's a clear line of grooming that goes on in the sequence of the offending behaviour, from where it starts to where it finishes, and here's a young girl who's looking for attention. She's looking for somebody to be nice to her and he is, but he knows that she's living in a very dysfunctional environment.
(R2, G4 at 49)
…
I think your Honour made comments rejecting that evidence and I think it's quite clear from the trial that it was not a pleasant environment for anybody to live in and he took advantage of that.        He took advantage of that in an escalating way, starting with a kiss, starting with fondling, starting with the digital penetration and moving up to penile penetration and when he had had what he wanted, he just disappeared…
(R2, G4 at 50)
(Reynolds DCJ):.. I won't go through the factual circumstances in detail.     Suffice to say that in relation to the indecent dealing the first one on the list – that happened at the park and you had your hand on the breast, on the skin, under the bra of [omitted]. The second involved you putting your hand down her pants and rubbing her vagina. Then, of course, the sexual penetration, which is the most serious of all four. And that involved the penile penetration where you got [omitted] to lay down on her stomach, pulled her pants down and then you put your penis in her anus and moved in and out, and asked her if it felt good. To which she didn't say anything. And then that came to an end and that was that.
The other and the fourth offence, the indecent dealing, consisted of you kissing her and also putting your hand under her bra and fondling her breast on the skin.       So offences of a sexual kind are particularly serious and, as I've mentioned, … [the Applicant], that of the sexual penetration, the penile-anal penetration, is the most serious of all of these four charges.       A number of points need to be made arising out of the factual circumstances. One is the age disparity. At the time you were 15. She only 10.
Not only was she only 10, but she was – based on the evidence that I've heard, and the circumstances in which she was living, she was a very vulnerable 10 year old. And it's my view that you were well aware of that.
…
And there's a – an aspect of grooming in relation to the offending which resulted in the sexual penetration, in my view.
(R2, G4 at 53-54)
On any measure the sexual offences committed by the Applicant were extremely serious, committed against a vulnerable member of the community involving grooming over a period of time and with dire consequences to the victim. In relation to the impact on the victim, the sentencing judge commented:
The victim impact statement shows that there has been a very profound effect on [omitted]. And you've no doubt seen that victim impact statement and gone through it with [counsel]. It includes references to her feeling embarrassed, being scared about being alone with a male, having nightmares, scared of the dark, having to sleep with the light on. She found it difficult to say no to males. She felt like she would have to do what she was told to do because she thought only by doing so that she would be liked. She started self-harming when she was 13 years of age, and that continued for some time, for which she needed therapy.
She has trust issues and she also made mention of how hard it was to go through the legal process and give evidence (R2, G4 at 55).
While the sexual offences are obviously by far the most serious offences of which the Applicant has been convicted, there are other offences which the Tribunal needs to take into account. The sequence of the Applicant’s offending is:
·July 2009 – arrives in Australia – age 13;
·November 2010 – July 2011 sexual offences – age 15;
·2012 (month unknown) – punches minor and steals scooter – age 16-17;
·August 2014 – disorderly conduct – age 18;
·January 2017 – aggravated burglary – age 21; and
·January 2017 – possess drug paraphernalia with prohibited drug – age 21.
The other offence that stands out in the above list as being serious is the aggravated home burglary committed while on bail in 2017. The Tribunal notes that the Applicant was not charged with breach of the bail upon which he was released after his conviction on the sexual offences but before sentencing. It would appear not to be disputed that the Applicant also committed a further offence, for which he was not charged, namely breaching conditions of bail. The Applicant conceded such in cross-examination (Transcript at 31-32) in the following exchange:
Ms Jackson: Had you already, when you were released on..
Applicant: On bail?
Ms Jackson: …bail, though, had – you hadn’t been to court yet?
Applicant: No. No. Not for any charges.
Ms Jackson: So you decided to do the burglary, knowing that you would probably go to jail?
Applicant: I didn’t think about my bail conditions at the time. I was high quite – quite frequently.
Ms Jackson: And it was just to fund your drug habit; is that right?
Applicant: Yes.
The Applicant submits that “a direct contributing factor” to the drug paraphernalia offences committed in 2017 (which he describes as “the minor offences”) and the aggravated burglary offence in January 2017, was his being charged with the sexual offences. At paragraph 55 of his SFIC (A1), the Applicant states:
Meth was the main reason why I committed the burglary offence. It was my choice to use meth and I am responsible for what I did, regardless of my impaired state at the time. I pleaded guilty to this offence because I know I did it, I know I was responsible for my actions. I have made the choice to stop using drugs. I do not think I will ever do something like that again.
The Applicant cites, presumably agreeing with, the delegate’s comment in the decision under review that (Applicant’s SFIC, A1 at para. 56):
While [the 2017 offence] is not as serious as those sexual offences, it is still a serious example of criminal offending, committed to fund [the Applicant’s] drug habit.
Bowden DCJ in sentencing the Applicant on the aggravated burglary charge made the following comments (R2, G4 at 35-36):
Bowden DCJ: … You've pleaded guilty to one count of aggravated burglary which carries a maximum penalty of 20 years' imprisonment.
The facts were outlined a short time ago by [counsel for the State], but it seems to me the facts I sentence you upon are as follows that on 19 January of last year, 2017, during the day you went to the residence in Scarborough in company with another person, gained access to the address via an unlocked door, ransacked the residence and stealing amongst other things a Rolex wristwatch, iPad, iPhone, cigarettes, to the estimated value of $11,000.
Now, it simply doesn't matter whether you took the items or whether the co-offender took the items. The law equates equal responsibility because you were involved in a joint criminal responsibility.
I'm told that what occurred was that it wasn't premeditated or planned. You'd been at work, you were approached by your co-worker who apparently is involved in this sort of activity. You went with him. The burglary having been complete you then returned to work.
…
It seems to me that again taking a fairly robust factor that's a matter that's got to be taken into account. Clearly as is reflected by the maximum penalty of 20 years Parliament recognises how serious this offence is.
I mean, people are entitled literally to go to sleep at nights or to leave their houses without the fear that somebody is going to come in and take their possessions and quite often it's just the fact that someone has been in their property which creates a feeling of anxiety and insecurity and the public are sick of people breaking into other persons' homes and they expect the courts to impose penalties that will deter other people from breaking into homes.
As I've said quite often it's not the value of the property that's taken, but quite often it's the fact that somebody has entered their house and if property is taken quite often it's the sentimental value of the items that distresses the home owner.
In this case the value of the property was some $11,000 and that's not insignificant. At the end of the day in my view the offence is so serious that immediate imprisonment is the only appropriate disposition.
While the offence of aggravated burglary is obviously not nearly as serious as the sexual offences, it is still a serious offence as evidenced by the maximum penalty of 20 years imprisonment.
The Applicant explains that he committed the aggravated burglary while “high” on methamphetamine and that he had taken methamphetamine, with increasing frequency over the twelve months leading up to the aggravated burglary, because of the stress caused by his being charged with the sexual offences. The Applicant’s evidence at the hearing was that by the time he committed the aggravated burglary he was using methamphetamine “every single day” (Transcript at 13).
In his witness statement (A2) the Applicant says:
24.The burglary was committed with a friend, because of drugs. I was using meth quite a lot by that stage, my sentencing was coming up and I felt like I was under so much stress, and didn’t have any money.
…
26.Meth was the main reason why I committed the burglary offence. It was my choice to use meth and I am responsible for what I did, regardless of my impaired state at the time. I pleaded guilty to this offence because I know I did it, I know I was responsible for my actions. I have made the choice to stop using drugs. I do not think that I will ever do something like that again.
While it is the case that other than the sexual offences and the aggravated burglary offence the Applicant’s other convictions could be considered to be minor offences, the fact is that over a relatively short period of time since his arrival in Australia the Applicant has engaged in repeat criminal behaviour. It is indisputable that the sexual crimes fall into the extremely serious category, not only in a general sense but also in the sense envisaged by paragraph 13.1.1(1)(a) and (b) of Direction no. 65 being a sex crime against a minor. It is also the case, in the Tribunal’s view, that the aggravated burglary falls into the category of serious crime. The fact that the Applicant committed the offence while under the influence of methamphetamine does not diminish the seriousness with which this offence should be viewed. As the Applicant rightly points out, it was his choice to use methamphetamine and, as he acknowledges, he is “responsible for what [he] did”.
The Tribunal finds that the nature and seriousness of the Applicant’s offending weighs strongly against the revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)
A decision-maker should have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) of Direction no. 65 further provides:
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community
Applying paragraph 13.1.2(2)(a) of Direction no. 65, the harm that would be caused if the Applicant were to repeat his offending behaviour is obvious and serious. While it is probably unnecessary to spell out the harm that would be caused to a victim, and to the family of the victim, if the Applicant were to commit sexual offences of the type for which he has been convicted, it is worth noting the sentencing judge’s remarks set out in [46] above on the effect that the Applicant’s offending had on his victim.

Similarly the Tribunal notes, and agrees with, the sentencing judge’s remarks on the consequences of aggravated burglary set out in [51] above. These sorts of offences have broader implications for those affected than just the loss of property. As the sentencing judge noted (R2, G4 at 36):
… people are entitled literally to go to sleep at nights or to leave their houses without the fear that somebody is going to come in and take their possessions and quite often it's just the fact that someone has been in their property which creates a feeling of anxiety and insecurity…
The broader community is also impacted by this sort of crime by increased insurance premiums and the waste of police resources in dealing with such offences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending
The Respondent, rightly, points to the principle in paragraph 13.1.2(1) of Direction no. 65 that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Tribunal is also mindful of the statement in paragraph 13.1.2 (1) of Direction no. 65 that:
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.
The Tribunal is also mindful of the Principle at paragraph 6.3(4) of Direction no. 65 that:
(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.
In relation to the sexual offences, the Respondent points to the Applicant’s continued denial of his having committed the offences and submits (Respondent’s SFIC, R1 at para. 39 and 40):
… An offender who cannot come to terms with the fact of their own wrongdoing has poor prospects of rehabilitation. The applicant does not consider himself a sex offender, and has elected not to engage with psychological or clinical programs designed to reduce the risk of re-offending. He was assessed as suitable for a “Deniers Course” to address some of his issues such as coping, background and attachment factors, sexuality and empathy, warning signs and risk factors. However, he elected not to participate in this course. Moreover, he was excluded from the Pathways Program after partially attending just 3 out of 50 sessions.
…The applicant’s denial of his sexual offending is fundamentally inconsistent with a conclusion that he would not offend in a similar manner again…
(Footnotes omitted.)
The Applicant observes (Applicant’s reply submissions para. 4) that there is no reference to any independent or other research to support that proposition. The Applicant identifies a number of studies that found that a link between denial and an increased propensity to sexually re-offend has not been proven. The Applicant quotes from Harkins, L et al (2015) “Relationships Between Denial, Risk and Recidivism in Sexual Offenders”, Archives of Sexual Behaviour 44(1), p.164:
In the past, the prognosis was viewed quite negatively for those in denial, as denial was assumed to equate to higher risk of reoffending…As research in the area of denial increases, it is apparent that the relationship between denial and recidivism is not as clear as once believed. Evidence is certainly beginning to accumulate that denial does not necessarily relate to an increased risk of sexual recidivism. In fact, in this and several other recent studies denial acts in a risk-reducing capacity for some when predicting sexual recidivism. It is expected that a number of different variables play a role in accounting for these differences and that more research is needed before firm conclusions can be drawn about the relationship between denial and sexual recidivism. This research highlights the importance of ensuring that denial is not used in decision-making about sex offenders in a manner that presumes denial equates with increased risk.
(Emphasis in Applicant’s reply submissions.)
The Applicant also refers (Applicant’s reply submissions para. 8) to a 2018 study (Dealey, J (2018) “Moving beyond the risk paradigm: Using the Good Lives Model with offenders in denial of sexual offending” European Journal of Probation 10(1), 28-43) which said:
Research, however, has failed to demonstrate a link between denial or admittance and risk of recidivism’ (Cortoni, 2009: 45)…Whilst it has been observed that there was a link between denial and higher levels of recidivism for high risk offenders…other studies have refuted this evidence…and stated that there is no proven link between the presence of denial and an increase in risk of further recidivism. The inconsistency in the literature has prompted debate as to whether denial has any relevance as a risk factor.
(Emphasis in Applicant’s reply submissions.)
Based on the above, the Applicant submits (Applicant’s reply submissions para. 9) that:
…the fact that the Applicant continues to deny the 2011 offences occurred or to assume responsibility for these offences does not support a finding that he is more likely to reoffend in a similar manner than someone who has acknowledged their offending behaviour or that it has any link whatsoever to his prospects of rehabilitation.
The Applicant called clinical psychologist Mercurio Cicchini who prepared a report at the request of the Applicant’s lawyers (A5). Mr Cicchini had face-to-face interviews with the Applicant on 27 December 2018 and 2 January 2019. He identifies that his report also was based on his review of psychometric test results from a clinical questionnaire and a personality questionnaire completed by the Applicant at the time of his face-to-face interviews (A5 at 1).
The request in response to which Mr Cicchini prepared his report asked specific questions, most of which would be relevant to the task to be undertaken by this Tribunal. While Mr Cicchini’s report does answer those questions, much of the report does go into areas well outside the scope of the questions and into areas that are of no relevance to the exercise to be undertaken by this Tribunal.
The letter of instruction from the Applicant’s lawyers asked Mr Cicchini to comment on (amongst other things) (A6 at 38):
[the Applicant’s] risk of recidivism in relation to criminal behaviour and in particular, drug-related offences; …
Mr Cicchini responded to that question as follows (A6 at 32):
The risk or recidivism with regard to drug use is not entirely clear at present. On the one hand, it is known that … [the Applicant] has been making a concerted effort during his time in prison to move away from drugs and drug users. At the same time it is also understood that future stresses in the course of community living that cannot at present be foreseen, and from which he may currently be sheltered from due to being in prison, could trigger relapse. Therefore, it would be prudent to follow up that treatment need with a specialist drug agency so that his awareness and insight into potential triggers for relapse can be developed in advance and the initiation of counter-measures to cope with such events can be planned. I also feel that professional assistance is required with regard to his current experience of reactive depression, which may need both psychological and pharmaceutical intervention by way of antidepressant medication.
It is not clear why the specific question posed sought comment on the risk of recurrence of drug-related offences and not offences of a sexual nature or offences against children. It is therefore understandable that Mr Cicchini’s specific response to the question did not address the likelihood of repeat of the sexual or similar offences. That issue was, however, addressed, in a slightly different context elsewhere in Mr Cicchini’s report. At page 6 of his report (A6 at 27) Mr Cicchini comments that:
…it is well known that the incidence of children sex offenders becoming adult sex offenders is minimal, and for that reason it has been clearly recommended that such offenders ought not be treated the same as adult offenders…
On page 12 of his report (A6 at 33) Mr Cicchini comments:
Viewed superficially or technically, … [the Applicant] does not meet the character test. The fact that as a child he sexually assaulted a younger child in the past, and also committed a property crime in the lead-up to his sexual charges Court case, raises questions about his risk to the community.
However, it has previously been noted in this report that WA legal authorities argue against child sex offenders being regarded and treated the same as adult sex offenders, most clearly because they so not invariably pose a risk of continuing to offend sexually in adulthood. In the present case, the prisoner has not re-offended against a child for the past 8 years, albeit that almost two of those years have been in prison. However he has a stable long-term relationship with a de-facto wife, and there are no indications at present that he will reoffend sexually against a child.
(Footnotes omitted. The “WA legal authority” to which Mr Cicchini refers is the Law Reform Commission of Western Australia, Community Protection (Offender Reporting) Act 2004, Final Report, Project No 101 (2012))
At the hearing Mr Cicchini was cross-examined at some length about what test or measure should be applied to determine a likelihood of recidivism or future criminal behaviour in juvenile offenders if it is inappropriate to apply the adult test criteria. Unfortunately no clear answer emerged from Mr Cicchini’s evidence. That is not a criticism of Mr Cicchini but rather, the Tribunal suspects, a product of the inherently imprecise “science” of predicting future behaviour. As is probably the case with most people, whether there is a repeat of previous criminal behaviour will depend on a whole range of factors and outside forces, environment and circumstances. That, unfortunately, is the reality in which the Tribunal must make a decision.
In his response to the specific question relating to the risk of the Applicant reoffending Mr Cicchini notes that it is difficult to assess the risk of recidivism given that “future stresses in the course of community living that cannot at present be foreseen, and from which he may currently be sheltered from due to being in prison, could trigger relapse” (see [71] above). It is in that context that Mr Cicchini comments that “it would be prudent to follow up that treatment need…” The fact is, however, the Tribunal cannot impose any conditions on the issue of a visa. The Tribunal therefore has to assume that if the cancellation of the visa is revoked the Applicant would be released into the community unconditionally, at least insofar as a visa is concerned. Any ongoing treatment to address any outstanding psychological issues which may cause the Applicant to engage in criminal behaviour would have to be undertaken voluntarily by the Applicant.
That brings into focus the other closely related factor, the Applicant’s rehabilitation. The letter of instruction for the Applicant’s lawyers asked Mr Cicchini to comment on the “adequacy of the … [the Applicant]’s efforts at rehabilitation or treatment following the offences” (A5 at 38).
Mr Cicchini’s response to that was (A6 at 32):
… the adequacy of his efforts at rehabilitation or treatment following the offences is addressed in some detail in the main part of this report. His approach has involved the making of personal decisions to not become involved with drug use or drug users whilst in prison in order to be better positioned to stay drug free in the future. What has been unusual in his approach is the low level of involvement with external party helping agents, arising from both internal personality and external (environmental) factors, discussed in some detail in this report.
Earlier in his report Mr Cicchini had been critical of what he called “selective use of information in prison reports, creating an incorrect impression that he did not care about his rehabilitation” (A6 at 26). This comment is referring to the fact that the records disclose that the Applicant failed to complete the Pathways course that he started while in prison. The Applicant was cross-examined on the programs which he was offered in prison:
Ms Jackson; And when you’re now talking about the courses and things that were offered to you in prison, how was the – we talked about the Pathway Program before?
Applicant: Yes.
Ms Jackson: How was that going to help you? What type of behaviour was that going to address?
Applicant: To be honest, I didn’t – I mean, the times that I did go to the Pathways class, I didn’t think it would help me with anything. The people there at the program, they’re just – they all like to brag about drugs and stuff like that and to me it was – I don’t think I would have improved on my drug behaviour in that kind of environment with those kind of peoples, so – but it’s meant to help you rehabilitate I think – drug users and alcohol, I think it is.
Ms Jackson: And how about behavioural things? Is it supposed to help with your behaviour as well?
Applicant: I’m not too sure. I didn’t – I didn’t attend the class for that long, so I wouldn’t know what it – what exactly it’s meant to help with.
…
Ms Jackson: At the time of entering the program … the report says that you reported the sole motivation for the program was to complete it in time for parole. Would you agree with that – that you were just doing it so you could get parole?
Applicant: That’s what I thought the courses are for. I thought it was just to get your parole. I wasn’t thinking about it as in to help me with my drug problem. I didn’t think it would help me deal with it. I found other ways to deal with it and yes.
(Transcript at 35-36)
By a “Parole Review Report”, apparently completed on 1 June 2017 (A6 at 93-94), the Applicant was assessed by prison authorities for suitability for rehabilitation programs. The report stated:
… At the present time he has outstanding court [sic] and presents with antisocial patterns, negative peer associations, pro criminal attitudes, poor problem solving skills, lack of consequential thinking and drug abuse issues. He is therefore eligible for the Pathways course which also addresses offending behaviour and seeks to challenge criminal thinking and behaviour, understanding and preventing relapse and recidivism, improve mental self control [sic] and social and relationship skills building.
The Pathways course ran three days a week. The Applicant was removed from the Pathways program after about four weeks for non-attendance. The records indicate that during that period the Applicant had attended three (one in full and two partially) sessions. When that was put to the Applicant in cross-examination he said that he could not remember (Transcript at 39). The reason that the Applicant gave for his non-attendance at the Pathways sessions was that the Monday session conflicted with his visits. His evidence in this regard at the hearing was:
Ms Jackson: It seems to me that you didn’t have any intention of finishing the program at all?
Applicant: No, I just decided that my visits are more important at the time, and – yes, I decided – they give me a choice, either my visits or the Pathways, and I decided my visits. I wouldn’t have started the program if I had no intention of finishing it; what would have been the point?
Ms Jackson: Well, you gave evidence before that you were just doing the program so you could get parole?
Applicant: Yes.
Ms Jackson: Not to actually change your behaviour?
Applicant: Yes. Well, what has that got to do with me starting the program and not wanting to finish it?
While in prison the Applicant was also offered a sex offenders course. The following exchange took place at the hearing explaining why the Applicant has not undertaken that course (Transcript at 16):
Ms Graziotti: Okay. And were there any other courses that they recommend you did? I think you mentioned the sex offender’s course?
Applicant: Yes. I had to – I had to do it, but they couldn’t book it because of my period. I only had nine months till parole and they just said I don’t have enough time – said I couldn’t book it.
…
Ms Graziotti: Okay. Did they offer you a course in Bunbury?
Applicant: Yes, yes, it’s – they come about maybe four/five months ago or something and they have offered me the program again but I have signed a waiver saying I didn’t want to do it because I would have to go to Bunbury and yes.
Ms Graziotti: Yes?
Applicant: And it’s just – from my perspective, I looked at it as I needed it for the parole and the by the time I complete the whole course, my full-time will be through anyway, so –
Ms Graziotti: So the main reason you signed the waiver was because it was at Bunbury Prison?
Applicant: Yes.
The obvious concern that the Tribunal has is that, for whatever reasons, the Applicant has undertaken no rehabilitation courses during the two years that he has been in prison. It may be that more courses should be available to prisoners or prison authorities should be more flexible, however, the bottom line is that on two occasions the Applicant has made a choice not to undertake the rehabilitation courses which were available to him. While understandable at a personal level, the choice that the Applicant made to decline the rehabilitation courses in favour of family visits was made on the basis of what was more appealing to him in the short term rather than on what was best for the community in the long term.
The Applicant’s attitude towards rehabilitation, at least to formalised rehabilitation programs, could best be described as ambivalent if not dismissive. It became clear in cross-examination that the Applicant did not consider that the Pathways course, a program that has been running in West Australian prisons for many years, would be of any benefit to him. His only interest in the program was to get parole, not to address his psychological and behavioural issues. This is made clear in the answers to the questions put to him in cross-examination as set out at [78] and [80] above.
Submissions were also made that the Applicant had taken steps to see what programs might be available to him if he were to be released into the community. The fact is, however, that these steps have only been taken in the last month or so. In cross-examination the Applicant referred to having taken steps to identify a drug counsellor. The following exchange occurred (Transcript at 40):
Ms Jackson: But you haven’t yet seen a drug counsellor?
Applicant: No, I haven’t.
Deputy President: Sorry; when did you request to see him?
Applicant: I rang them a week and a half ago. I’ve got the phone number through the offices, and I’ve put it on, and I’ve rang them, and I gave my details, and they said they will be in contact with me.
Deputy President: And how readily available are drug counsellors?
Applicant; I have no idea. This is my first time doing this.
Deputy President: This is within the prison
Applicant: Yes.
The Applicant has not undertaken any rehabilitative programs, seems not to consider them to be effective and has made no serious attempt to put in place any sort of counselling or other program if he were to be released back into the community. The sum total of his “rehabilitation” appears to be his assertion that he has not taken drugs while he has been in prison and that he won’t return to a life of methamphetamine abuse if he was released back into the community.
The Applicant still denies that he committed the sexual offences. The Respondent submits that an important element of rehabilitation is acceptance of wrongdoing by the offender (Respondent’s SFIC, R1 at para. 39). The Applicant disputes that assertion. Mr Cicchini’s evidence was (Transcript at 95):
Ms Jackson: As in do your – once people acknowledge it and are open about their offending, that can lead to positive consequences in terms of their future?
Mr Cicchini: Yes and no. Because, again, the programs that have been run with deniers, where they don’t accept responsibility but they learn about stressors and managing stressors, can be productive regardless of whether they acknowledge responsibility or not.
Ms Jackson: So underlying behavioural issues can still be treated, even if people are denying their offences?
Mr Cicchini: Yes, yes.

It may be that Mr Cicchini’s observations are correct, however, the obvious problem in the present case is that, denier or not, the Applicant has not undertaken a rehabilitation program.
Witness statements were tendered and oral evidence was given by the Applicant’s mother, his partner and the Applicant’s mother’s husband who is separated from the Applicant’s mother. All gave evidence to the effect that they would support the Applicant if he were to stay in Australia and that they had made it clear to the Applicant that if he were to offend again they would have nothing to do with him. The Tribunal accepts the sincerity of these witnesses. However, the witness statements and oral testimony of the Applicant’s partner and the Applicant’s mother were given on the basis that the Applicant had not committed the sexual offences. The Applicant’s partner’s witness statement (A3), relevantly, said:
19.But as for the indecent dealings, I feel no guilt should be shown because of the simple fact he did not commit the crimes he was convicted for…
…
24.… I recognise that the law considers … [the Applicant] a sex offender because he was convicted of the offences.
25.If I could put an estimate on the risk … [the Applicant] shows to the Australian community, it’ll be low to none. [The Applicant] … is not a risk to anyone….
…
31.If … [the Applicant] is given the opportunity to remain here in Australia, he will have a large support network. His family and I will make it our mission to offer all the support he needs plus make sure he gets the professional support he needs, for example to deal with the mental anguish that this whole situation has caused him.
Similarly the Applicant’s mother in her witness statement (A4) said:
25.I do not believe he committed the sexual offences he was accused of. I raised my Son, alone. I raised him to treat women and men with respect, especially women. I know my Son, like the back of my hand. I know his personality and his thought process, and I could never bring myself to believe such an accusation was made towards my Son, I just know deep within my heart my Son couldn’t act out such a horrible crime.
…
31.I believe … [the Applicant] will not reoffend. He has told me many times he’d never go back to that type of lifestyle, involving drugs, bad decisions and bad company. He has promised me that he’d never use Meth ever again and even stated that he’d attend drug counselling within prison and if released in Australia we will also go [to] Drug rehabilitation Centre which I can pay for and support my son during this time.
Notwithstanding the undoubted sincerity of the statements made by the Applicant’s partner and his mother, their assessments of the likelihood of the Applicant reoffending are based on the Applicant not having committed the sexual offences in the first place. However, the legal positon is that the Tribunal cannot go behind or impugn the conviction which triggered the cancellation of the Applicant’s visa which, in this case, was the Applicant’s conviction for the sexual offences. The Respondent’s SFIC (R1) summarised the legal position as follows:
21.In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP), Bromberg J surveyed the authorities and principles relevant to whether the Tribunal may look behind or impugn the conviction or sentence that is a precondition to the exercise of power. At [76], his Honour expressly adopted a recent decision in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155, where the Victorian Court of Appeal distilled the applicable legal principles arising from those authorities as follows (at [42] of LLF):
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
22.Bromberg J ultimately found that the conviction leading to a mandatory cancellation under s 501(3A) of the Act was indeed a foundation for the exercise of power by the decision-maker, and therefore no challenge could be made to the fact of the conviction or sentence: HZCP at [78].
23.The convictions for child sex offences triggered the mandatory cancellation here, and the Tribunal cannot go behind those convictions…
(Footnotes omitted.)
The Tribunal agrees with the Respondent’s summation of the law.
The evidence of the Applicant’s partner and the Applicant’s mother in relation to the likelihood of the Applicant reoffending must therefore be viewed through the prism of being from people who love the Applicant and who do not accept that he committed the sexual offences. The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
Again, while accepting the sincerity of those who gave evidence in support of the Applicant, their statements of support and the provision of a “support network” (Applicant’s partner’s witness statement, A3 at para. 31) being provided to the Applicant in the event of him being allowed to stay in Australia, have to be viewed in light of the fact that those same support elements were those that existed previously, when the Applicant was committing serious and minor offences over an extended period. This support network did not prevent the Applicant committing crimes in the past. There is no evidence to suggest that those same supports would be any more effective in the future.
It is also of concern to the Tribunal when considering the likely effectiveness of the Applicant’s proposed support network that an integral part of the proposed network, the Applicant’s partner, suffers from significant problems of her own. In her witness statement (A3) she described her current state as follows:
[12]At the moment I am not working because of my mental state. The last time I had a job was before … [the Applicant] was imprisoned. When he was sentenced for the sex offences I had a breakdown in the middle of a job and was fired by my manager for being unreliable and not mentally sound…
[13]However it got to the point that I couldn’t make it to appointments and was struggling to leave the house. I started seeing a psychologist after a while and I still see that psychologist now.
[14]I was diagnosed with depression and anxiety when I was 13. While it was minor at that time it was still not easy to live with. Up until … [the Applicant] was sentenced I was still confident he wouldn’t go to prison. After he was sentenced I was diagnosed with insomnia and my hair started falling out. My biggest problem is anxiety and I struggle to be out in public. I can’t do it alone.
While the Tribunal is sympathetic to the mental health issues faced by the Applicant’s partner, her condition does not augur well for her role as a key support to the Applicant and to the Applicant’s future efforts to address his several issues and to avoid reoffending should he be returned to the community.
The Tribunal notes the following:
·the Applicant has not undertaken any rehabilitation courses in the two years that he has been in prison. Although he had reasons for not undertaking the courses offered to him, in the end it was his choice not to do so;
·the Applicant has said that he does not think that a program such as Pathways would be of benefit to him (see [78] above);
·the Applicant’s continued denial of commission of the sexual offences;
·the first time that he has sought psychological counselling was after he spoke to Mr Cicchini, a matter of weeks before the hearing for the preparation of the report (see [84] above);
·the “support network” which would be available to the Applicant if he were released back into the community is, in effect, no different to that which was in place when the offending occurred and a key part of that network, the Applicant’s partner, has considerable issues of her own;
·Mr Cicchini’s observation that “…future stresses in the course of community living that cannot at present be foreseen, and from which he may be currently sheltered due to being in prison, could trigger relapse” (see [71] above); and
·effectively, the only comfort that the community can have that the Applicant will not reoffend and will not resume his previous life of methamphetamine addiction is his statement that he will not. Even that is not unequivocal given his statement at paragraph 53 of his witness statement (A2) that “…if I was struggling with depression in the community, I would probably see a psychologist and try to find another way of dealing with it rather than using drugs.”
At best the Applicant’s risk of reoffending is low. The risk is, however, for the reasons set out above, real and not insignificant particularly given the Applicant’s failure to address in any meaningful way his drug addiction or underlying psychological issues which led to the offending in the first place. Applying Principle 6.3(4) and paragraph 13.1.2(1) of Direction no. 65, it is the Tribunal’s view that the seriousness of the potential harm that would be caused should the sexual offences be repeated are so serious that any risk that they might be repeated is unacceptable. The primary consideration of the protection of the Australian community therefore weighs heavily against the revocation of the cancellation of the visa.
Second primary consideration: The best interests of minor children in Australia (13.2)
Paragraph 13.2 of Direction no. 65 provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction no. 65 outlines the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has no children of his own. He has two half-brothers, D aged eight and M aged six. The father of these children is the Applicant’s mother’s now-separated husband. The two children were born in Australia and are Australian citizens.
The evidence of the Applicant’s mother was that:
·the Applicant assisted with the care of the two boys particularly when they were babies (A4 at para. 11);
·the boys love the Applicant and ask where he is every day (A4 at para. 12);
·as the boys got older the Applicant helped take care of them, played games with them and baby sat when she and the boy’s father attended functions (A4 at par 13);
·the boys have a close bond with the Applicant and if he were to be deported it would cause them much grief and sadness (A4 at para. 14);
·the boys are too young to understand the severity of the situation that the Applicant faces and she has not told them that the Applicant is in prison but rather that he is working away (A4 at para. 14); and
·her and the father of the boys are separated, they share care of the boys (A4 at para. 19).
The evidence of the Applicant’s partner was that:
·the Applicant and his family are close and that if the Applicant were deported the Applicant’s brothers would be terribly affected and it would cause utter despair and sorrow (A3 at para. 5); and
·before he went to prison the Applicant would regularly spend time with his brothers being a great older brother (A3 at para. 6).
The Applicant’s evidence was that:
·his mother does not have any help around the house and has two kids to raise. The father of the boys has them every second weekend (A2 at para. 48); and
·the boys would be devastated if he was removed from Australia. The boys miss him now and they wouldn’t be able to see their brother. They do not know that he might not be able to stay in Australia (A2 at para. 49).
The evidence of the boys’ father was:
·that the boys would be “very, very upset” if the Applicant were deported (letter “To whom it may concern” dated 27 June 2017 (R2, G4(f3) at 88); and
·he pays child support for the boys and will continue to support them as long as he works. He is a professional. He is 64 years old. He shares the care of the boys about thirty-seventy with their mother. He has the boys two days a week.
The Respondent concedes that the best interest of the boys would be served by the Applicant remaining in Australia, however, submits that the weight given to this factor should be reduced given that: his relationship is non-parental; the Applicant was addicted to methamphetamine for much of his half-brothers’ formative years; and he has had limited contact with them over the last two years since he has been incarcerated (Respondent’s SFIC, R1 para. 45).
The Applicant disputes the assertion that he was addicted to methamphetamine for much of the boys’ formative years because he only started using methamphetamine when he was charged with the sexual offences at the beginning of 2016 and ceased when imprisoned in January 2017, a total of around one year (Applicant’s reply submissions para. 22-25). The Applicant asserts that the United Nations International Children’s Emergency Fund (UNICEF) defines “formative years” as the period up to eight years of age. Calculating the boys’ ages when the Applicant used methamphetamine as five and six for D and three and four for M, the Applicant contends that therefore the Respondent’s claim that the Applicant was addicted to methamphetamine for “much” of the boys’ formative years should be “given little, if any, weight”. The point taken by the Applicant seems to be somewhat semantic. The fact is that for the year leading up to his imprisonment following his arrest for the aggravated burglary charges the Applicant was a methamphetamine user or, in the later part of that period, an addict. It is also the case that for all or most of that year leading up to his arrest following the aggravated burglary the Applicant was not living with his half-brothers but rather with his partner.
While on the UNICEF definition of formative years that the Respondent may have overstated the case, it is the case that for at least the last 12 months or so of whatever contact that the Applicant had with his half-brothers, he was a methamphetamine addict so the positivity of his influence on them must be questionable.
Apart from the Applicant, his mother and his partner expressing the opinion that the boys would be upset, even very upset or that there would be despair and sorrow if the Applicant were removed, there is no evidence from any relevant medical professional that there would be any lasting psychological impact on the boys.
Taking into account that: (i) the relationship is not a parental one; (ii) the boys’ father fulfils the parenting role and there is no reason to believe that he will not continue to do so; (iii) it is reasonable to assume that the Applicant would be able to maintain contact with the boys by telephone or other electronic means; and (iv) the fact that there has already been a significant absence or lack of meaningful contact over the last two years between the boys and the Applicant, the weight to be given to this consideration, while in favour of non-cancellation of the visa, is minor relative to the other considerations.
Third primary consideration: Expectations of the Australian Community (13.3)
Paragraph 13.3(1) of Direction no. 65 provides:
(1)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 to not 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.
Paragraph 6.3(2) of Direction no. 65 states that:
(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 and elsewhere.
The proper construction of the above provisions was considered by the Federal Court in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), in which Mortimer J made the following comments:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)

In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296; [2016] FCA 348 states as follows:
[64]In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that 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, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
[65]… In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85] applied the reasoning of the Federal Court in YNQY as did Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 (Le). Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17] also applied YNQY.
Both Direction no. 65 and the relevant authorities (see Suleiman v Minister for Immigrationand Border Protection [2018] FCA 594 per Colvin J; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 per Bank-Smith J) make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (Direction no. 65, paragraph 8(3)). Direction no. 65 at paragraph 8(4) states a primary consideration should generally be given more weight than the other considerations, however, the authorities referred to above make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each consideration appropriate weight in reaching a decision.
How then is that weighing process to be undertaken? A helpful summary of that process is set out by Member Burford in Le at [140]-[141] as follows:
[140]The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying Uelese, 13.3(1) directs that the Tribunal should have due regard to the Government’s views in this respect.
[141]It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant’s SFIC cited a number of cases in relation to this consideration, however, those cases pre-date the decision in YQNY. In her closing counsel for the Applicant addressed YNQY as follows (Transcript at 117-118):
Ms Graziotti: …In relation to the expectations of the community, the applicant acknowledges Mortimer J’s observations in the case YNQY, which is mentioned in my friend’s statement, in relation to the community’s expectations, that in substance, this consideration is adverse to any applicant appearing in these kinds of matters.
I suppose, then, the only thing that I would like to mention to this consideration is that this is not to say that there’s no discretion whatsoever for the tribunal to make a finding in relation to this consideration and that the Tribunal is required to consider the applicant’s individual circumstances to the degree that they line up with the principles discussed in the direction and the Government’s views on the considerations and the nature and seriousness of the applicant’s offending. Numerous Tribunal decisions have made findings in relation to this, but I won’t speak any…
Deputy President: They’re generally before YNQY, though. That was a bit of a game changer, wasn’t it?
Ms Graziotti: Yes. Yes. So I don’t –
Deputy President: Mortimer J has basically said that consideration can only ever be a negative one.
Ms Graziotti: Yes.
The Respondent’s submission in relation to this consideration were as follows (R1):
[47]In YNQY, Justice Mortimer held that this consideration was inextricably linked to the other primary consideration about protection of the Australian community, and that the expectations referred to in the Direction were those espoused by the Government in clause 13.3(1) rather than any objective expectations put forward by an applicant.
[48]Having regard to her Honour’s clear statement of principle in YQNY, which the Minister contends binds the Tribunal, the applicant’s submissions at [152]-[166] cannot be accepted.
[49]The Minister submits that the Australian community has no tolerance for sexual offences against minors, or for non-citizens who then commit further offences whilst on bail for such grave matters.
[50]Consistent with the principles in the Direction, the Australian community would expect that a person who consistently and flagrantly disregards Australian laws would not be allowed to remain in Australia.
[51]Having breached the trust of a very vulnerable 10 year old girl by grooming her for sex and then sexually abusing her over a period of 7 months, and then having breached the trust of the Australian community by committing an aggravated burglary whilst on bail, this primary consideration weighs heavily against revocation of the visa cancellation decision.
In determining the weight to be applied to this consideration, the Tribunal has regard to the Applicant’s circumstances. Having regard to those circumstances, including the history and severity of the Applicant’s offending and his failure to undertake any meaningful rehabilitation and the degree of risk that he will re-offend, the Tribunal finds that the expectation of the Australian community weighs strongly against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 65 provides
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Non-refoulement obligations
The Applicant concedes that there is nothing to suggest that the Applicant would be at risk of a type of harm that would invoke Australia’s non-refoulement obligations upon a return to either Russia or Azerbaijan (Applicant’s SFIC para. 167). That is also the Respondent’s position and the Tribunal is satisfied that non-refoulement issues do not arise in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 65 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In relation to the factors identified in paragraph 14.2(1)(a) the Applicant’s SFIC makes the following points (A1 at para. 168-172):
(a)the Applicant arrived as a 13 year old, he is now 23 and has spent all of his teenage and adult years in Australia;
(b)while the Applicant committed his first offence (the sexual assault) not long after he arrived in Australia, those offences were committed when he was a minor;
(c)the Applicant positively contributed to the Australian community while employed after leaving school in 2011 up until his incarceration at the beginning of 2017; and
(d)his role in the care and upbringing of his two half-brothers;
In relation to the considerations identified in paragraph 14.2(1)(b), family and social links, the Applicant’s SFIC refers to (A1 at para. 174-187):
(a)the Applicant has been in a de-facto relationship since August 2013. His partner was born in and has lived her whole life in Australia;
(b)the Applicant’s partner speaks only English and that if he was sent back to Russia the relationship would be inevitably doomed and that her anxiety and depression would worsen if the Applicant were deported;
(c)the Applicant’s mother’s confirmation of the effect the Applicant’s deportation would have on his partner and the fact that she has been seeing a psychologist;
(d)the fact that the Applicant “has not practiced the language there” (presumably Azerbaijani);
(e)the Applicant’s mother lives in Australia and has been an Australian citizen since 2014 and does not wish to leave Australia;
(f)if the Applicant is deported his mother will lose his support in caring for her other children and will exacerbate her mental health issues; and
(g)the impact of deportation on his two half-brothers.
In relation to the statement in the Applicant’s SFIC that he “has not practiced the language” the Tribunal notes that, on questioning by the Tribunal, the Applicant confirmed that he spoke Russian to his mother. He confirmed that he was “fluent in Russian” (Transcript at 44). This is also confirmed by the Applicant’s SFIC at para. 192. The Tribunal also notes that the Applicant was born in Russia and the Applicant’s mother has a copy of his Russian birth certificate (Transcript at 70).
The Respondent concedes that this consideration should be given some weight in favour of the revocation of the cancellation but submits that the weight should be reduced by reason of the Applicant commencing offending within a short time of him arriving in Australia.
The Tribunal agrees that this consideration weighs in favour of the revocation of the cancellation of the visa. The Tribunal does, however, agree that the weight to be given to this consideration is lessened by the Applicant having commenced offending within around 18 months of him arriving in Australia.
Impact on victims
The Respondent’s submissions (paras. 56-59 of the respondent’s SFIC) go to the impact that the Applicant’s offending had on the victims of that offending, in particular the victim of the Applicant’s sexual offending. The Respondent submits that “…the impact of the applicant’s offending weighs heavily against the applicant in this matter” (R1 at para. 59).
Similarly the Applicant’s submissions (paras 188-190 of the Applicant’s SFIC, A1) refer to the impact that the sexual offending had on the victim but submits that because of the lack of any “external evidence” this consideration “weighs neither in favour of or against revocation of the Original Decision”
With respect, the submissions of both the Applicant and the Respondent fail to address the relevant consideration. Paragraph 14.4 of Direction no. 65 is as follows:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The consideration goes to the impact “of a decision not to revoke” the cancellation of the visa on members of the Australian community “including victims… and the family members of victims”. The consideration is not of the impact that the non-citizen’s offending had on the victims of that offending.
In the end, however, the Tribunal does not have any information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour or the family members of those victims. Accordingly, this is not a consideration that can be given any weight either way.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 65 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC (A1) identifies the following as being impediments if he were to be removed:
(a)“…the Applicant has serious concerns about his ability to cope with finding employment, housing and a social network” if returned to either Russia or Azerbaijan (para. 195).
It is not clear to the Tribunal exactly what the impediment is that is being identified. Is the impediment a concern that the Applicant apparently has about the exercise of finding employment, housing etc. or is the impediment that there is no employment, housing etc.? It is not clear.
If it is the former, a subjective concern felt by the Applicant is not, in the Tribunal’s view, an impediment coming within paragraph 14.5 of Direction no. 65. If the impediment is a lack of jobs, housing and social services, there is no evidence other than anecdotal statements or unsupported opinion of the Applicant. The Applicant asserts in his witness statement (A2 at para. 45) that “[t]here are no jobs there [either Russia or Azerbaijan], no money, things are pretty bad” These basis’ identified for that somewhat hyperbolical statement. He goes on to state that “[i]t is also a Muslim country so I think that some of the customs will be unfamiliar”. Presumably this is a reference to Azerbaijan. Russia, where he was born and for which his mother has a birth certificate for him, is of course, not Muslim.
This and the majority of the impediments identified in the Applicant’s SFIC are not supported by any evidence and in the majority of cases assume that he will be deported to Azerbaijan. Most of the impediments that the Applicant claims will confront him in Azerbaijan would not apply in Russia as the Applicant is Russian born and is fluent in Russian.
(b)Deportation is likely to have a detrimental effect on the Applicant’s mental health. There is some evidence to support this in Mr Cicchini’s report. The Applicant’s SFIC (A1) at [208] says that:
It is unclear what level of social, medical and/or economic support will be available to the Applicant form the governments of Azerbaijan and Russia. What is clear is that he will receive no such support from any individual person in either country, as he has no social links to either.
Speculation as to what may or may not be available from the governments of Azerbaijan or Russia is not indicative or evidence of an impediment if the Applicant were to be deported to those countries.
(c)The Applicant “…anticipates difficulties arising from a permanent separation from his family, social and employment links in Australia” (A1 at para. 211). The Tribunal accepts that there would inevitably be disruption and dislocation if the Applicant were to be removed to either Russia or Azerbaijan. This would be the case in the vast majority of cases where a person is forced to relocate to another country.
(d)The other potential impediment that the Tribunal is mindful of and takes into consideration, although not specifically raised by the Applicant under this consideration under Direction no. 65, is the effect that his deportation would be likely to have on the mental health of the Applicant’s mother and his partner.
The Respondent accepts (R1, para. 62 of Respondent’s SFIC) “…that the applicant would initially face some cultural barriers should he be removed to Russia or Azerbaijan, but submits that there are no significant impediments to his removal.”
The Tribunal accepts that, as would be the case in the vast majority of forced relocations, there are likely to be impediments or difficulties, certainly initially, if the Applicant were forced to relocate to either country. On balance the potential impediments weigh in favour of revocation of the cancellation of the Applicant’s visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65) and the expectations of the Australian community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of his visa (that is, affirming the decision under review).
With respect to the primary consideration regarding the best interests of minor children (13.2 of Direction no. 65), the Tribunal finds that the best interests of the Applicant’s two half-brothers are, on balance, better served by the Applicant being permitted to stay in Australia.
In relation to the other considerations (paragraph 14 of Direction no. 65), the Tribunal accepts that the strength, nature and duration of the Applicant’s ties (paragraph 14(1)(a) of Direction no. 65) and the extent of impediments if removed (paragraph 14(1)(e) of Direction no. 65) weigh in favour of the revocation of the cancellation of the visa.

Most significantly, however, the Tribunal finds that although the risk of the Applicant reoffending, in particular committing offences of the nature of the sexual offences for which he has been convicted, is relatively low, the harm that would be caused if he were to reoffend is so serious that the risk is unacceptable. Applying Principle 6.3(4) and paragraph 13.1.2(1) of Direction no. 65 this consideration weighs heavily against and outweighs those considerations, both primary and other, which are in favour of revocation of the cancellation of the visa.
In these circumstances, it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the decision under review.
DECISION
The decision under review, namely the decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant’s Partner (Migrant) (Class BC) (Subclass 100) visa, is affirmed.

I certify that the preceding 144 (one hundred and forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.....[sgd]...................................................................
Associate
Dated: 6 February 2019

Date of hearing: 25 January 2019

Applicant: In person

Representative for the Applicant: Ms A Grazziotti

Solicitors for the Applicant: Estrin Saul Lawyers

Representative for the Respondent: Ms M Jackson

Solicitors for the Respondent: Australian Government Solicitor

Court	Court Date	Offence	Court Result
Perth District Court of Western Australia	19 January 2018	Aggravated home burglary and commit; criminal code (wa); 401(2)(a)	[counts 1] imprisonment: 14 months cumulative from 11-jan-2018. – cumulative
Perth Magistrates Court	30 January 2017	Possessed drug paraphernalia in or which there was a prohibited drug or place; misuse of drugs ACT 1981; 7b(6)	[counts 1] $200.
Possessed drug paraphernalia in or which there was a prohibited drug or place; misuse of drugs ACT 1981; 7b(6)	[counts 1] fine:$500. (Global)
Possessed drug paraphernalia in or which there was a prohibited drug or place; misuse of drugs ACT 1981; 7b(6)	[counts 1] fine:$500. (Global)
Perth Children’s Court	2 February 2017	Sexual penetration of a child under 13.; criminal code (wa); 320(2)	[juv][counts 1] imprisonment: 18 months concurrent from 02-feb-2017.-concurrent
Indecent dealings with child under 13 years.; criminal code (wa); 320(4)	[juv][counts 1] imprisonment: 3 months concurrent from 02-feb-2017.-concurrent
Indecent dealings with child under 13 years.; criminal code (wa); 320(4)	[juv][counts 1] imprisonment: 3 months concurrent from 02-feb-2017.-concurrent
Indecent dealings with child under 13 years.; criminal code (wa); 320(4)	[juv][counts 1] imprisonment: 6 months concurrent from 02-feb-2017.-concurrent
Perth Magistrates Court	11 August 2014	Disorderly behaviour in public; criminal code (wa); 74A(2)(a)	[counts 1] $400.
Date		Outcome
In or around 2012		Stealing and assault (?)	60 hours’ community work

Date of hearing:	25 January 2019
Applicant:	In person
Representative for the Applicant:	Ms A Grazziotti
Solicitors for the Applicant:	Estrin Saul Lawyers
Representative for the Respondent:	Ms M Jackson
Solicitors for the Respondent:	Australian Government Solicitor