Luy and Minister for Immigration and Border Protection - [2014] AATA 23

[2014] AATA 23

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5550
Re	Keang Luy
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	21 January 2014
Place	Melbourne

The Tribunal affirms the decision under review.

......................[sgd]..................................................

G. D. Friedman, Senior Member

MIGRATION – Cambodian citizen – cancellation of partner visa – convictions for sexual offences – character test – exercise of discretion

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

Direction [No. 55] – Visa Refusal and Cancellation under s 501

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

REASONS FOR DECISION

G. D. Friedman, Senior Member

21 January 2014

Kheang Luy is a citizen of Cambodia who first arrived in Australia on 8 July 2005 on a Subclass 300 (Prospective Marriage) visa. On 15 May 2008 he was granted a Subclass 801 (Partner) visa. On 23 October 2013 a delegate of the respondent found that Mr Luy did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa. Mr Luy seeks review of that decision.

LEGISLATIVE BACKGROUND

Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.
On 25 July 2012 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.55] – Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012. The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 6.3 sets out the principles behind Direction 55:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
Paragraph 7 of Direction 55 sets out how to exercise the discretion:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A [defined in Paragraph 5 as Identifies the considerations relevant to visa holders in determining whether to exercise the discretion to cancel a person’s visa] or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community
Paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case:
…
(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 or cancellation of the 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

ISSUES

The issues before the Tribunal are:

Does Mr Luy pass the character test? If not:
How do the primary considerations and other considerations in Part A apply to Mr Luy?
Is the risk of future harm by Mr Luy unacceptable?

DOES MR LUY PASS THE CHARACTER TEST?

Mr Luy has the following criminal history:

Court	Date	Offence	Court Result
Dandenong Magistrates Court	18 August 2009	Recklessly Cause Injury	Convicted. Adjourned to be of good behaviour to 17 August 2010.
Melbourne County Court	8 April 2011	Rape	Convicted. Imprisonment 54 months.
Melbourne County Court	8 April 2011	Indecent Act with Child Under 16	Convicted. Imprisonment 12 months. 9 months of sentence concurrent.

Mr Luy was eligible for parole on 7 December 2013 but his parole was denied and he is being held at the Hopkins Correctional Centre, Ararat. Mr Luy conceded, and the Tribunal finds, that he does not pass the character test set out in s 501 of the Act.

HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS IN PART A APPLY TO MR LUY?

Assessment of primary considerations

The four primary considerations are set out in paragraph 9(1) of Direction 55:
(a)       Protection of the Australian community from criminal or other serious conduct;
(b)       The strength, duration and nature of the person’s ties to Australia;
(c)       The best interests of minor children in Australia; and
(d)       Whether Australia has international non-refoulement obligations to the person.

Primary consideration (a) Protection of the Australian community from criminal or other serious conduct

Paragraph 9.1(1) of Direction 55 states that, when considering the protection of the Australian community, decision-makers should have regard to the principle that:
... the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 9.1(2) states that decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and

b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.

a) The nature and seriousness of Mr Luy’s conduct

Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
In the sentencing remarks in the County Court of Victoria on 8 April 2011 in relation to the charges of rape and indecent act with a child under 16 years, the Judge noted that Mr Luy had been convicted by a jury after pleading not guilty. The Judge stated that the victim was a 13-year-old girl who was known to Mr Luy’s wife and was staying with Mr Luy and his wife in December 2007. Mr Luy persuaded the victim to absent herself from school and accompany him to a shopping centre where he invited her to try on a bikini. On the way back to school Mr Luy placed a hand on the victim’s knee, resulting in the charge of indecent act. About three weeks later Mr Luy entered the bedroom where the victim was sleeping in the same bed as his wife and their two-year old daughter. He placed his hands on her in a sexual manner and digitally raped her.
The Judge also referred to aggravating factors of Mr Luy’s offending, including the fact that the victim was young and was in Mr Luy’s home as a guest; that his actions had had a significant effect on the victim and her family; and the criminal act would have an impact on those relationships for a considerable time into the future.
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;
Mr Luy committed serious sexual offences against a vulnerable young person who was staying in his house.
c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Mr Luy has not been placed in immigration detention.
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;
Mr Luy’s conduct in committing the crimes is serious.
e) The sentence imposed by the courts for a crime or crime;
In the County Court the Judge sentenced Mr Luy to a total effective term of imprisonment of four years and nine months with a non-parole period of three years. He was made a registrable offender under the Sex Offenders Registration Act 2004.
f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
Mr Luy committed the offences in December 2007, about two and a half years after his arrival in Australia. His only prior conviction was on 18 August 2009, when he was convicted of recklessly causing injury following an altercation with his wife. He was placed on a 12-month good behaviour bond.
g) The cumulative effect of repeated offending;
This is not applicable to Mr Luy.
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
This is not applicable to Mr Luy.
i) Whether the person 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 person’s migration status (noting that the absence of a warning could not be considered to be in the person's favour);
This is not applicable to Mr Luy.
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
This is not applicable to Mr Luy.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences are very serious.

b) The risk to the Australian community should Mr Luy commit further offences or engage in other serious conduct

Paragraph 9.1.2 of Direction 55 states:
(1) In considering whether the person 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. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct;
Taking into account the nature of the convictions for sexual offences against a child who was staying in Mr Luy’s house, the Tribunal finds that there would be significant harm to individuals or the Australian community should he engage in further criminal or other serious conduct.
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In a written statement prepared in December 2013 Mr Luy said that he grew up in Cambodia and left school at the age of 16 years. He commenced employment as a kitchen hand for two years and after marrying his first wife at the age of 22 years he was given a position in this father-in-law’s road construction business. He has two children (now aged about 16 and 13 years) from that marriage, which ended in 2003 after seven years and he lost contact with the children. Mr Luy said that his younger brother had met an Australian woman of Cambodian heritage and had re-located to Australia in 2002. His brother supported him financially and emotionally, and arranged an introduction to an Australian citizen of Cambodian heritage who came to Cambodia to meet him in 2004. They announced their engagement in July 2004, and she became pregnant one month later. Mr Luy was granted a prospective spouse visa and arrived in Australia on 8 July 2005. He began employment in a pallet construction business operated by his wife’s father and about 7 months later he commenced with his brother in an asbestos removal business.
Mr Luy explained that he worked hard to support his family and found the responsibility to be stressful, which he managed by consuming alcohol in increasing amounts. He said that the victim sometimes stayed at his house and he and the victim had a positive relationship. He considered her as a younger sister. He agreed that he gave her a mobile telephone because there was a spare one, and had purchased clothes for her as payment for child minding, and said that these gifts were not intended to be any form of grooming the victim.
In respect of the charge of indecent act with a child under 16 Mr Luy said that he was not drunk but …had feelings for the victim and had been attracted to her. In respect of the rape incident Mr Luy stated that he had fallen asleep after drinking heavily. When he awoke he realised that he had touched the victim improperly but he maintained that it was not intentional, as he believed he was touching his wife. He could not bring himself to tell his wife, who took the victim shopping and confronted him when she returned as the victim had disclosed the incident. He said that he admitted to his wife that the victim’s claims were true. He said that he was filled with shame and swore to them that this would never occur again. He said that he told his wife he did not know what happened or how the incident occurred.
Mr Luy told the Tribunal that in 2009 the relationship with his wife began to suffer, and after a minor argument a violent incident took place in which he injured her, resulting in a conviction for recklessly causing injury. He said that he cooperated with Police in their investigation. Later in 2009 the police interviewed Mr Luy about the earlier incidents involving the victim, resulting in his convictions for rape and indecent act with a child under 16.
In respect of his prison sentence for the sexual offences Mr Luy emphasised that the experience has been a sobering and shameful one. He said that he is remorseful and ashamed, and has found difficulty in coming to terms with his actions. He said that while in prison he agreed to undertake the sex offender program, but was later deemed to be ineligible for the group-based program. He said that he has undertaken a number of courses, including an English language course and a program to assist with alcohol dependence.
Mr Luy agreed that he knows he did the wrong thing in committing the offences. He said that he has lost his sense of self, and has brought great shame on his family. He said that he has lost his wife and contact with his children. He assured the Tribunal and the Australian community that he will never engage in offending behaviour again. In a written statement dated 13 January 2014 Mr Luy said that although initially he had denied touching the victim inappropriately and had believed during the rape incident that he was touching his wife, he now accepts the jury’s verdict and acknowledges that he was responsible for both crimes.
Under cross-examination Mr Luy agreed that he has not participated in any sex offender program while in prison, although he had been prepared to undertake the program but was considered to be ineligible for the group-based program. He also agreed that divorce papers have not been served on him, so he and his wife are still married, although separated.
Mr J Cummins, consulting clinical and forensic psychologist, stated in a pre-sentence report dated 24 January 2011 that the offending behaviour was most probably situationally-motivated against a background where Mr Luy was intermittently dependent on alcohol. Mr Cummins assessed Mr Luy as being on the borderline of low risk/low-moderate risk of re-offending and recommended participation in a group-based sex offender treatment program. Excessive consumption of alcohol was considered to be a risk factor.
An assessment of Mr Luy was made in April 2011 by the Office of Corrections using the Victorian Intervention Screening Assessment Tool (VISAT) and Tier 1 report which assessed him as presenting a low risk of re-offending. Initially he was recommended for participation in a group-based sex offender program, but that recommendation was altered later to require that he have relevant case management by prison case workers if released on parole.

A further assessment was made on 17 May 2011 by a psychologist using Static-99, an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. This assessment stated that Mr Luy fits into the moderate-low risk category of re-offending. On 30 June 2011 the psychologist reviewed the assessment and concluded that the risk of re-offending was low.
An Environment Risk Assessment and Management Report dated 21 October 2013 prepared for consideration of Mr Luy’s parole application concluded that Mr Luy’s brother and sister-in-law were unsuitable accommodation providers to Mr Luy because of concerns about their views of the offending behaviour and their ability to act protectively towards their daughter and other young children, as they had indicated in an interview that they did not believe that Mr Luy had committed the offences.
Mr P Newton, forensic and clinical psychologist, stated in a report prepared for Mr Luy’s solicitors dated 13 December 2013 that Mr Luy had commenced consuming alcohol at the age of 19 years and had increased his intake after arriving in Australia. He was intoxicated at the time of the offences. Mr Newton noted that Mr Luy has gained a good level of insight into his problematic drinking through participation in the 24-hour alcohol education program while in custody. Mr Newton concluded that Mr Luy is at low risk of re-offending, taking into account the nature of the offending. The main dynamic risk factor was considered to be a history of problem drinking which could increase the risk of recidivism, particularly given the untested nature of behavioural change in this area, although Mr Newton suggested that the absence of broader antisocial tendencies and any general psychological or behavioural problems would not elevate the risk in this case. Mr Newton recommended participation in a specialist sex offender treatment program and noted that the continued support of his brother and family …is likely to confer additional protective containment.
Under cross-examination Mr Newton agreed that alcohol was not involved in the charge of indecent act with a child under 16. He said that the recent acknowledgment by Mr Luy of his guilt does not necessarily affect the assessment of the risk of re-offending. Mr Newton also stated that he took into account potential contact with other children when making his risk assessment.
Mr Luy’s brother explained in a written statement prepared in December 2013 that Mr Luy took care of him in Cambodia and was a kind employer and a caring older brother. He described Mr Luy as a dutiful, respectful and diligent brother who will never repeat such a mistake in the future. The brother said that he cannot understand why the offences occurred, although he now understands that alcohol played a major role. He admitted that he has never had the courage to discuss the offending behaviour with Mr Luy, who has been too ashamed to address the matter directly with him. He said that he and his wife have visited Mr Luy regularly in gaol will continue to support Mr Luy, including offering to provide accommodation and assistance with employment.
At the hearing the brother stated that Mr Luy has recently acknowledged to him that the jury’s verdict was correct in respect of both charges. The brother stated that Mr Luy would be able to resume working in the asbestos removal business which had employed him previously, although no documents confirming this situation were produced.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.
The Tribunal takes into account that at the hearing Mr Luy expressed remorse and shame, although the Tribunal notes that at trial he pleaded not guilty and attempted to explain the offending behaviour in respect of rape by claiming he believed he was touching his wife at the time and was intoxicated. At the hearing he described the context of his behaviour leading up to his sexual offending and his feelings for the victim. The Tribunal concludes that Mr Luy has only attempted recently to take responsibility for his actions, at a time when such expressions of remorse are used in a self-serving way following the decision to cancel his visa.
The Tribunal also takes into account the expression of support by Mr Luy’s brother, although this needs to be considered in light of the brother’s admitted lack of understanding of Mr Luy’s offending or a failure to discuss the offending with Mr Luy until recently, which suggests that the brother might not be able to prevent or deter re-offending against the brother’s children or other children who may visit the brother’s house. Apparently the brother’s attitude has contributed to the decision to refuse parole because the suggested accommodation at the brother’s home was assessed as unsuitable.
In respect of rehabilitation, the Tribunal takes into account that Mr Luy has had no adverse incidents recorded against him in gaol and has undertaken education programs including 24 hour drug treatment program level III, although his efforts regarding alcohol consumption have been untested outside the prison environment, and his susceptibility to excess drinking if he returns to the community in the absence of stable accommodation, employment and family support remains a real concern. Mr Luy expressed a willingness to undertake a sex offender program in prison but this did not occur and he has not completed any program or counselling to address his sexual offending behaviour or his admission of feelings for the young victim. The Tribunal notes that Mr Newton referred to the untested nature of alcohol rehabilitation and the desirability of participation in a sexual offender program.
On the basis of all the material including the various assessments, the Tribunal finds that Mr Luy’s risk of re-offending is real and not insignificant.

Primary consideration (b): The strength, duration and nature of the person’s ties to Australia;

Paragraph 9.2.1 of Direction 55 states that the decision-maker must have regard to the following:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community

Mr Luy was born in Cambodia in 1975 and arrived in Australia when he was aged 30 years and his formative years were not spent in Australia. He has been in this country for 8 years and commenced offending about two and a half years after arriving. Mr Luy said that he has contributed positively to the Australian community by working full-time since his arrival until his incarceration.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

Mr Luy’s family ties to Australia comprise his younger brother who is an Australian citizen, and his two children who live with their mother (Mr Luy’s estranged second wife) and with whom he has had no contact since his incarceration in December 2010. The rest of his family lives in Cambodia.

Primary consideration (c): The best interests of minor children in Australia

Paragraph 9.3(1) of Direction 55 provides that decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child. The Direction provides guidance as to the factors that must be considered. Some of these are:
(a)    The nature and duration of the relationship between the child and the person…(including whether an existing Court order restricts contact);
(b)    The extent to which the person is likely to play a positive role in the future… including any Court orders relating to parental access and care arrangements;
(c)    The impact of the person’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 person will have on the child…;
…
(g) Evidence that the person has abused or neglected the child in any way…;
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct…
Mr Luy told the Tribunal that in addition to two children living in Cambodia he has a daughter and a son under the age of 18 years who are Australian citizens. The daughter was born in 2005 and the son was born in 2009. Mr Luy said that his relationship with the children has been strong until the time he was taken into custody in December 2010 and he has been a caring and responsible father who has provided for them financially while incarcerated. He intends to visit them weekly when he is released into the Australian community. He said that when he was first questioned by Police his son was only a few months old, and his wife took out intervention orders against him shortly afterwards. He has not seen the children while in custody and stated that he intends to seek legal advice to re-commence contact with the children. He produced a letter dated 31 October 2013 purportedly from his wife and written in English in which she forgives him for the crimes and states that she planned to visit him in prison. In the letter she stated that she would like him to have a role in the children’s lives and take some responsibility for them. In the letter she also asks him to sign divorce papers and other documents as the children’s father.
At the hearing Mr Luy agreed that his wife has not visited him in prison. He also agreed that he has not pursued the offer of contacting the children and did not know if intervention orders were still in force. He explained that he did not read the letter from his wife closely because it was written in English. He stated that he does not provide any financial assistance to his wife in child support, although he said that his brother sends money monthly on his behalf to his children in Cambodia.
Mr Luy’s brother told the Tribunal that Mr Luy always asks after the welfare of the children during the monthly visits. The brother explained that he sees Mr Luy’s son regularly and that they have a good uncle/nephew relationship. The brother said that there is no paternal figure in the children’s lives.
The Tribunal takes into account that Mr Luy has expressed a desire to play a role in the life of his minor children in Australia, although he has had no direct contact with them since December 2010, and his son was a baby at that time. The existence of intervention orders taken out against Mr Luy by the children’s mother, together with the nature of Mr Luy’s offending, suggest that any relationship with the children in the near future would be limited. The Tribunal places little weight on the letter supposedly written by Mr Luy’s wife. As she did not attend the hearing or provide a witness statement, the Tribunal is unable to verify Mr Luy’s estranged wife as the source of the letter. Even if the letter is genuine the Tribunal has some doubts about the sincerity of the offers made by Mr Luy’s wife about resumption of contact with the children, particularly in the context of her seeking Mr Luy’s signature on various documents. In any case Mr Luy has not acted on the offers made in the letter.

Primary consideration (d:) Whether Australia has international non-refoulement obligations to the person.

Paragraph 9.4(1) of Direction 55 states:
In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

No non-refoulement issues were raised by Mr Luy, although he said that he would be confronted with some difficulties from family members and others in Cambodia arising from the nature of his offending.

Assessment of other considerations

Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:
a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
Mr Luy said that cancellation of his visa would have a lasting and significant effect on his children and his younger brother, with whom he has a close relationship. He agreed that his brother has a family and full-time employment, so the Tribunal concludes that although the brother would miss him if he is forced to leave Australia, cancellation of the visa would have no lasting or adverse effect on the brother. There would be some impact on his children because they would be deprived of personal contact with him until they are old enough to visit him in Cambodia.
b) Impact on Australian business interests
There does not appear to be any impact on Australian business interests of cancellation of Mr Luy’s visa.
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
No material was presented to the Tribunal on the impact of a decision not to cancel Mr Luy’s visa on the victim or family members of the victim.
d) The extent of any impediments that the person 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:
i. The person’s age and health;

ii. Whether there are substantial language or cultural barriers; and

iii. Any social, medical and/or economic support available to them in that country.
Apart from claimed difficulties with relatives and others in Cambodia who are aware of the offences, Mr Luy did not refer to specific impediments that he would face if he was forced to return to Cambodia but stated that he has no idea of the situation in Cambodia. He said that his parents are ageing and he has not had direct contact with them for some time. However under cross-examination he agreed that his brother has regular contact and keeps him informed about family issues. He agreed that his parents own a business and a large property and that there would be opportunities for him to work in the business and live with family members.
Despite Mr Luy’s preference to remain in Australia he has significant family connections in Cambodia, including two children from his first marriage and his parents, two brothers, a sister and a significant extended family. He is familiar with the Cambodian language and culture, having lived in Cambodia for the first 30 years of his life and having worked there for 14 years before coming to Australia. He would have the benefit of significant social, medical and/or economic support, accommodation and employment and did not present any evidence of health, age or other impediments.
The Tribunal takes into account that Mr Luy has lived in Australia for 8 years. He is aged 39 years and is in apparent good health. On balance, the Tribunal finds that he would not face significant impediments in establishing himself in Cambodia.
In accordance with paragraph 7 of Direction 55, the Tribunal, informed by the principles in paragraph 6.3, takes into account the considerations in Part A of Direction 55 and concludes that the primary consideration regarding protection of the Australian community from criminal or other serious conduct should be given considerable great weight in view of the seriousness of Mr Luy’s conduct and the harm to the Australian community if he re-offends. This consideration weighs heavily in favour of cancellation of his visa.
The primary consideration regarding Mr Luy’s ties to Australia weighs in favour of cancellation of the visa because his only practical ties are with his brother, as he is estranged from his second wife and has had no contact with his children since December 2010.
In respect of the third primary consideration regarding minor children in Australia, in normal circumstances the best interests of the children would be served by a decision not to cancel Mr Luy’s visa so that the children would be able to develop a relationship with their father, and he has expressed a desire to foster a relationship with them. However Mr Luy has not had contact with the children since 2010 when the younger child was a baby and there have been intervention orders against him, so the possibility of developing a meaningful relationship with them would be difficult, notwithstanding the purported letter from his wife to which the Tribunal has given little weight. He has not provided any financial support to the children in Australia since his incarceration. This consideration weighs neither for nor against cancellation of the visa.
The fourth primary consideration regarding non-refoulement obligations is not relevant in this case, and the other considerations weigh in favour of cancellation of the visa.

IS THE RISK OF FUTURE HARM BY MR LUY UNACCEPTABLE?

In reaching its decision the Tribunal has an obligation under paragraph 7(1)(b) of Direction 55 to determine whether the risk of Mr Luy causing harm to members of the Australian community in the future is unacceptable.
Having regard, in particular, to the principles referred to in paragraph 6.3 of Direction 55, and to:
·           the very serious nature of the sexual offences against a child committed by Mr Luy;
·           the Tribunal's conclusion that there is a real and not insignificant risk that Mr Luy will re-offend;
·           the relatively short period of time in which Mr Luy has been participating in, and contributing to, the Australian community; and
·           the very serious nature of the harm that would be caused to a member or members of the Australian community if Mr Luy re-offends;
the Tribunal concludes that the risk of re-offending and causing very serious harm to the Australian community is an unacceptable risk that should not be tolerated by the Australian community. Therefore the Tribunal determines that Mr Luy represents an unacceptable risk of serious harm to the Australian community.
The Tribunal concludes that the preferable decision in this case is that the visa be cancelled under s 501(2) of the Act.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

..................[sgd]......................................................

Associate

Dated 21 January 2014

Date of hearing	16 January 2014
Counsel for the Applicant	Mr G Hughan
Solicitors for the Applicant	Clothier Anderson & Associates
Advocate for the Respondent	Ms A Graham
Solicitors for the Respondent	Clayton Utz