LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 107

LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107 (3 February 2020)

Division: GENERAL DIVISION
File Number:      2019/7410
Re:         LZGG
APPLICANT
And        Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision

Tribunal: Mr S Evans, Member

Date: 3 February 2020
Place: Sydney

The Tribunal decides that:

the decision under review, being the decision of a delegate of the Respondent dated 8 November 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is set aside; and
in substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is revoked under section 501CA(b)(ii) of that Act.

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

Mr S Evans, Member

Catchwords

MIGRATION – Mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – failure to pass the character test due to substantial criminal record – whether discretion to revoke mandatory cancelation of visa should be exercised – Ministerial Direction No. 79 applied – primary considerations – other considerations – decision under review set aside and new decision substituted

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Puni and Minister for Home Affairs [2019] AATA 3973

Suleiman v Minister for Immigration and Border [2018] FCA 594

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

REASONS FOR DECISION

Mr S Evans, Member

3 February 2020

Introduction

LZGG (“the Applicant”) is a citizen of New Zealand who first entered Australia in January 1986 when he was two years old. He grew up in Papua New Guinea and in 1995 he moved to Australia on a permanent basis. He was the holder of a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). On 11 April 2019 the Applicant’s visa was cancelled by a delegate of the Minister (“the Minister” or “the Respondent”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). On 8 November 2019 the delegate declined to revoke the mandatory cancellation decision.
The Applicant has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the decision not to cancel the revocation of his visa.
The matter was heard on 20 January 2020 in Sydney. The Applicant appeared in person and was legally represented. The Applicant gave oral evidence at the hearing. Further evidence was received from his father and current partner, who both appeared in person. Consultant psychologist, Associate Professor James Freeman, and psychologist, Shelly Jacks, both provided evidence by telephone. The Tribunal also had before it written evidence and submissions. The totality of the evidence has been carefully considered.
I have decided to set aside the decision under review. My reasons follow:

Background

The Applicant is 36 years old and has resided in Australia for most of his life, having moved here as a teenager in 1997. Following the separation of his parents, he was initially placed in the care of his mother. Having struggled to bond with his mother, he was sent to live with his father at age 13.
After finishing his schooling in Australia, the Applicant briefly went to New Zealand for approximately one year before returning to live in Australia. He worked consistently for 15 years in hospitality. His exposure to gaming at his place of work contributed to his compulsive gambling problem and having recognised this he changed vocation and started working as a construction painter in 2019.
The Applicant has had three significant relationships during his adult life. His first relationship was with a woman who he met whilst at school. Although unable to confirm the precise dates, the relationship ended after a couple of years, by which time the couple had had a daughter, who is now 14 years old and the victim of the Applicant’s offending.
The Applicant’s relationship with his second partner (the “second partner”), who is also the mother of his 11 year old son, lasted for over 10 years, and ended shortly before the Applicant’s offending. The Applicant met his current partner, “Ms LL”, in February 2018. Together they have an infant daughter who was born whilst the Applicant has been in detention.

The Applicant’s offending and visa cancellation

On 15 February 2019, following his plea of guilty, the Applicant was convicted and sentenced by the District Court of Queensland to 12 months imprisonment, suspended after 3 months, for 6 counts of indecent treatment of children under 16 lineal descent/guardian/carer domestic violence offence.
Consequently, on 11 April 2019, the Applicant’s visa was mandatorily cancelled (the “Original Decision”) by a Ministerial delegate under s 501(3A) of the Act on the grounds that he did not pass the character test because he had a substantial criminal record as defined in s 501(7)(c) and (d) of the Act. It was also determined that he did not pass the character test under s 501(6)(e) of the Act because he was convicted of a sexually based offence involving a child.
The Applicant was informed of the decision and invited to make representations to the Minister seeking revocation of the mandatory cancellation of his visa, which he did. On 11 November 2019 a Ministerial delegate decided, under s 501CA(4) of the Act, not to revoke the original decision to cancel the Applicant’s visa.
On 14 November 2019 the Applicant lodged with this Tribunal an application for review of the delegate’s decision.

Issues

Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Consequently the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…
There are therefore two issues presently before the Tribunal:
(a) whether the Applicant passes the character test; and
(b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked. I will address each of these grounds in turn.

Does the Applicant Pass the Character Test?

The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 15 February 2019 the Applicant was sentenced in the District Court of Queensland to 12 months imprisonment suspended after serving a period of three months. That the Applicant does not pass the character test is not contested by the Applicant. Consequently, I am satisfied that the Applicant does not pass the character test.
The Applicant cannot rely on s 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.

Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”) applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
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.
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)       Protection of the Australian community from criminal or other serious conduct;
(b)       The best interests of minor children in Australia; and
(c)       Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the way in which decision-makers apply the considerations in Parts A, B or C of the Direction. Briefly stated, they are as follows:
(i)         Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)         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;
(iii)        A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)        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;
(v)        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;
(vi)        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 be allowed to come to or remain permanently in Australia; and
(vii)       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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.

Primary Consideration A: Protection of the Australian community from criminal or other serious conduct

The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant’s conduct to date

The Applicant’s criminal history consists of six counts of indecent treatment of children under 16 lineal descent/guardian/carer - domestic violence offence which occurred on three separate occasions between 30 November 2017 and 17 December 2017.
The Respondent details the key elements of the Applicant’s offences based on the Queensland Police Service Court Brief and some of which is also reflected in the sentencing remarks of Judge Chowdhury delivered at the District Court of Queensland on Friday 15 February 2019:
The victim child was a 12 year old, who was the biological daughter of the applicant. The applicant was 33 at the time.
The victim child stated she attended the applicant’s house sometime on Sunday night (17 December 2017) where she slept in the same bed as the applicant. The victim child described the applicant’s bed as being a king single bed.
The victim child stated that she and the applicant stayed up watching a movie until about 2:00am – 3:00am in the morning.
The victim child stated she was laying on the bed with the applicant laying behind her and she was facing the wall. The victim stated that next thing she remembers is the applicant reaching over with his right hand and started rubbing her right upper leg.
The victim stated the applicant then continued to rub higher up her leg towards her vagina. The victim described this rub as the applicant using two fingers to rub up and down her leg.
The first charge involves the applicant then moving his hand from the victim’s leg to start rubbing her vagina on top of her clothing.
The second charge, involves the applicant then putting his right hand underneath the victim’s pyjama pants and continued to rub the victims vagina on top of her underwear using his fingers.
The third charge involves the applicant then stopping, rolling over to watch his laptop computer for about 1-2 minutes before rolling back over to face the victim child. The applicant then used his right hand to rub and poke the victim child’s vagina (skin on skin contact) using 2 to 3 fingers. The victim child described that the applicant used his fingers on his right hand to rub and poke her vagina for approximately 8 minutes.
The victim child stated she woke the next day at about 10.00am – 11.00am however stayed in bed. The victim child stated that the applicant then walked back into the bedroom, shut the bedroom door and then laid back down in the bed.
The fourth charge involves the applicant then pulling her on top of him where he started touching her inappropriately again. The victim child stated that she was on top of the applicant so their stomachs were touching, the applicant has then used his right hand and placed it in the victim child’s underwear where he has used his fingers to rub her vagina.
The victim child stated at this time she tried to push the applicant away however he used his left arm around her body to hold her in place so she couldn’t move. The victim child finally pushed the applicant away and the applicant exited the bedroom to go to the toilet.
The applicant has then re-entered the bedroom and said to the victim “am I going to see you again”. The victim child stated the applicant then drove her home where he told her “just keep it a secret, do not say anything about it and just tell them we had a fight”.
The fifth charge concerned the previous time the victim child visited the applicant (sometime in early December 2017) where she was lying in bed with the applicant watching a movie when she turned to face him. Victim child stated the applicant slowly rolled her on top of him so their stomachs were touching. The applicant then kissed the victim child. The victim described this kiss as a normal family kiss (peck on lips).
The applicant has then kissed her again on the lips where he has inserted his tongue into her mouth. At the time the victim child did not know what to do and described kissing the applicant back. The victim child stated this happened for a long time. During the kiss the victim child stated she attempted to pull away from the applicant to stop the kiss by leaning back away from the applicant however the applicant continued to kiss her.
The victim stated she then got away from the applicant. This time the applicant has said to her “we probably should not tell anyone about this”.
The victim described being in shock when this happened.
The sixth charge involved an incident which occurred on 19 December 2017. The applicant reached over from where he was lying beside the child victim, and put his hand under her underwear and rubbed her on the vagina. She began wriggling around, and the applicant stopped what he was doing and left the room. When he came back into the room, he asked the child victim if he would ever see her again. When she didn’t answer, he became angry, saying comments such as “don’t you love me?” and “give me a hug if everything is ok”.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)     The principle that crimes committed against vulnerable members of the community (such as 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;
(d)     Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)     The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)      The cumulative effect of repeated offending;
(g)     ...
(h)     …
(i)      …

There can be no doubt that these are very serious criminal offences directed toward a vulnerable child. I note also that subparagraph 13.1.1(1)(a) of the Direction stipulates that, without limiting the range of offences that may be considered serious, sexual crimes are viewed very seriously.
The Applicant does not dispute that the nature of his offending was very serious, and the Tribunal finds it so.
Having regard to subparagraph 13.1.1(1)(a) of the Direction and that the nature of the Applicant’s offending involved sexual crimes against a child, I find that this principle militates in favour of a finding that the Applicant’s conduct must be viewed very seriously.

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. Subparagraphs 13.1.2(a) and (b) of the Direction relevantly states:
(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.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct is very serious.
The Applicant submits that his offending occurred during an extremely stressful time. His long term relationship with his second partner, the mother of his son, had recently ended. At the same time he was struggling with the consequences of his compulsive gambling and associated debts. He says he was confused and socially isolated and that his Autism Spectrum Disorder (“ASD”) exacerbated his inability to cope with the confluence of stressors that emerged at that time.
At the hearing the Applicant testified that his relationship with his second partner ended for reasons which included his gambling and the emotional consequence of ‘a few miscarriages’. These events were compounded by his poor communication with his then partner. He told the Tribunal that ‘like any relationship, you don’t talk if you don’t - if you can’t communicate, which are really not my best points, you know, things tend to go downhill very quickly’.
The Applicant submits that he ‘understands the grave mistake he has made in his life’ and concedes that the stress that he was experiencing at the time was no excuse for his offending.
The Applicant correctly identifies that he had no criminal record or prior criminal history before the offences that led to the cancellation of his visa. The Applicant also notes the steps he has taken to rehabilitate himself and to further reduce the likelihood of reoffending. Notably, he has sought help from a psychologist who he had seen regularly until his incarceration, and plans to continue seeing regularly if he is released back into the community. The Tribunal also notes his commitment to completing the sex offenders program.
In support of this proposition the Applicant has provided two reports from Associate Professor James Freeman. Associate Professor Freeman is a consultant psychologist who completed a report in February 2019 prior to the Applicant’s sentencing and a further report in August 2019 following the Applicant’s release from prison and prior to his appearance before the Tribunal. Both reports were written following interviews with the Applicant. Associate Professor Freeman also provided testimony at the hearing.
In his latter report, Associate Professor Freeman notes that the Applicant has ‘consistently accepted responsibility for his behavior’. He also notes that the Applicant was ‘able to express an appropriate level of remorse and regret for his behavior’.
Associate Professor Freeman considers the Applicant’s history and refers to the evidence of Ms Shelly Jacks, who is a general psychologist and believes that a diagnosis of autism is appropriate for the Applicant. Associate Professor Freeman writes that the disorder has been marked by deficits in social emotional reciprocity, deficits in understanding language and emotions and deficits in developing understanding and maintaining relationships.
Associate Professor Freeman assessed the Applicant using the PCL-R 20 item rating scale which he described at the hearing as the “gold standard” in identifying sexual and violent recidivism. ‘It is’, he writes in his report, ‘widely considered one of the most effective predictors of reoffending, particularly scores above 20’. The Applicant received a total raw score of three. Associate Professor Freeman compares this with an average total score for inmates of around 23.6. Having assessed the Applicant using other similar actuarial risk assessment measures, Associate Professor Freeman concludes that the Applicant is at “low” risk of committing further sex offences. In support of this assessment he notes that there is no evidence of conduct disorder, personality problems, alcohol abuse, psychopathy, previous violence based convictions, previous nonviolent convictions, or failure on prior conditional release. At the hearing Associate Professor Freeman testified:
[PCL-R] one of the best tests that we have in regards to identifying risk of recidivism, and he scored 3. This is consistent with an individual who hasn’t shown criminal versatility. He [the Applicant] doesn’t have a long offending history. He doesn’t have alcohol issues he doesn’t have drug issues.
As mentioned, the Applicant has no other criminal record. Together with the absence of other behaviours which may indicate an increased risk of reoffending, the Tribunal has some confidence that the Applicant poses a low risk of reoffending. The Tribunal is mindful, however, of the comments made by Judge Chowdhury in his sentencing remarks where he noted the following in reference to Associate Professor Freeman’s report:
He [Associate Professor Freeman] considered that you were a low-risk of reoffending in the same way. It’s very difficult to make a full assessment of risk. It is really only, at best, a prediction tried to use markers developed, initially, by psychiatrists in the United States.
The Applicant contends that he has presented a ‘grounded intention to rehabilitate himself’. He has attended ‘all the required rehabilitation workshops whilst incarcerated and in detention’ and continues to seek out help ‘in regards to his mental health issues’.
The Respondent draws the Tribunal’s attention to the opportunity that exists for reoffending given there are several children in Australia with whom the Applicant will continue to have unsupervised contact with should he remain in Australia. It is certainly the case that if released back into the community the Applicant will have contact with his niece and nephew, his son and his infant daughter.
This concern is shared by the Tribunal and the question of his reoffending and what practical steps have been put in place to minimise the likelihood of further criminal conduct. This was explored with the Applicant and his treating psychologist, Ms Shelly Jacks. Ms Jacks wrote a report for the Applicant’s sentencing which stated in part:
I identified a number of treatment needs it would be important to address during sessions which would reduce [the Applicant’s] likelihood of reoffending. During the period of offending it appeared that [the Applicant] was struggling with a number of issues including gambling, a conflictual relationship with his daughter’s mother, boundary issues, lack of empathy and poor communication skills. He would also likely meet the criteria for a diagnosis of autism and has a son who has been diagnosed with this condition. The autism has led [the Applicant] to struggle all his life with managing his emotions, being comfortable in communication with others, connecting with others, and coping with change, being flexible in relationships and having physical closeness (emphasis added).
Ms Jacks has been treating the Applicant since January 2018. At the hearing Ms Jacks was asked if the Applicant now had the skills and insight required to process emotions and feelings in a healthy way. She told the Tribunal that she had observed changes in the Applicant’s behavior over the period in which she had been treating him. She said that he was improving his ability to engage socially and connect with other people and his moods had begun to improve.
Ms Jacks also testified that the Applicant had begun to ‘challenge’ his thinking, identifying the thoughts that precipitate certain behaviors and to respect boundaries. Ms Jacks told the Tribunal that this was important for the Applicant who had come to her seeking to understand his offending. She went on to provide context to the offending which provides insight into both the offences and the appropriateness of the measures he has taken to prevent reoffending which worthwhile repeating here:
One of the things that didn’t seem to be clear about the offending when it happened was … the need to create some boundaries between himself and his daughter and because he had not had a lot to do with her in his life, I think he struggled to see her as his child in some ways and was looking for comfort from her because of how … badly his life was going at the time. He has not really created any boundaries between her and him and didn’t really understand what a … 12-year old kid was like and why they might do the thing they do and his need to uphold the parental role… He mentioned to me that when he was a child he was diagnosed with autism, and that certainly did come across when I was speaking to him, his ability to just maintain connection when you speak to him, his lack of demonstrated empathy, his inability to identify his own emotional state and the emotional state of other people.
Evidence of the changes that the Applicant has made as it relates to his prospects for reoffending was also elicited from the Applicant’s father. The Applicant’s father testified that his son is now more communicative, increasingly grateful and now more engaged with and caring for others. He also stated that since the offending he has noticed that the Applicant is more mature and he wants to interact with others and tells his father about things that are on his mind.
Reflecting on the support he has received from his family the Applicant told the tribunal:
It’s amazing… I never thought I have a support network I had before. It [the offending] has changed my opinion of my whole family… I never knew I had this kind of support network until this event… My dad and me have never been closer … Like, we talk even now, every day, we talk. You know, even if it’s just 20 minutes. And if I haven’t called him, he has called me, you know, and that is amazing.
During the hearing the Applicant was questioned in detail about the offending and the period during which it happened. Whilst noting it was very hard to explain, he said that he wanted to be around his daughter as ‘she just seemed to make things better… that’s, that’s how I repaid her and that’s not right’. Asked what would have happened during the time of the offending if his daughter wasn’t around, the Applicant indicated that he was in such a low place he may ‘not be around’.
You are blind to the moment, you know, and then, looking back, you know, you just like, “if I’d have done this, things would have been” you know, if I’d have just spoken to someone, if I’d have, you know… Looking back is good, because it helps you understand things, but you know, it’s all about trying to make amends and building something from what you have got now. I was lost really.
In his sentencing remarks Judge Chowdhury in the District Court of Queensland said the following:
The courts have said for many years now that general deterrence is a major factor in sentencing. What general deterrence means is, is that the courts must impose sufficiently heavy sentences to send a message to people such as you that if you’re tempted to commit offences like this… you’ll think again, because if you get caught, you’ll go to prison for a significant period of time. In your favour, it’s an early plea of guilty. You’ve got no criminal history.
…
This is a difficult sentence. You did spend two days in pre-sentence custody before clearly being released on bail.
….
I agree with the prosecution that the appropriate sentence range is one between 15 and 18 months imprisonment, I would have sentenced you, all other things being equal, to 15 months imprisonment, to be released after serving five months. I consider that the offending is simply too serious not to be met with a significant sentence of imprisonment, which will see your return to prison today. But I will reduce the overall period, both on the head sentence, and on the time you actually have to serve, to reflect all those matters in your favour, your efforts with Ms Jacks, your lack of criminal history, your remorse, your cooperation with police … (emphasis added).
As mentioned, the Applicant was subsequently sentenced to 6 months imprisonment on two counts and to 12 months imprisonment on four counts with the sentences served concurrently. Judge Chowdhury ordered that the 18 month sentence be suspended after the Applicant had served three months.
Subparagraph 13.1.1(1)(e) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant has been before the court once, but the Respondent drew the Tribunal’s attention to the fact that the Applicant’s offending did not involve a single incident or one impulsive act. Rather his conduct occurred over at least a period of days, and possibly over the course of a couple of weeks, during which time the applicant would have been able to reflect on what he was doing, and during which time he requested that his daughter keep his conduct a secret. Despite knowing this he continued to offend until the police intervened.
In considering the harm and potential risk to the Australian community if the Applicant were to reoffend in the future, the Tribunal is mindful of the nature and seriousness of his offending and the vulnerability of his victim. However, this is mitigated by his remorse, guilty plea, sincere efforts at rehabilitation and assessment as being at low risk of reoffending.
When balancing the seriousness of the offence and the risk of reoffending, the Tribunal has decided that medium weight in favour of non-revocation is to be given to this Primary Consideration.

Primary Consideration B: The best interests of minor children in Australia

Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
The Direction further stipulates that when 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 three minor children. The eldest, his 14 year old daughter, is the victim of his offending. His son, aged 11, resides with his mother, and a newborn daughter who resides with her mother, the Applicant’s current partner.
The Applicant also has frequent contact with his niece and nephew. It is the Respondent’s view that it would not be in the best interests of the eldest daughter that the Applicant remain in Australia given his own submission that ‘he has no intention to contact her as he has put her through enough hurt’.
Regarding Primary Consideration B the Applicant contends that it is in the children’s interests, notably those of his son and newborn daughter, to have access to both parents. The Applicant submits that his son, mother, children, current partner, and family are dependent on him for emotional and financial support. In summary, he submits strongly that his children, specifically his son and newborn daughter, will be adversely affected if he is removed from Australia.
To his credit the Tribunal notes that the Applicant has consistently paid child support. He contends that his ability to do so may be jeopardised if he relocates to New Zealand with the resulting employment vulnerability that would follow.
Of particular note is the relationship that the Applicant has with his son who has been diagnosed with Autism and related disorders. The Applicant states that he is very close to his son and his son’s mother, being his ex-partner. He wrote in his statutory declaration of 19 December 2019:
I am very close with my son and his mother. My son suffers from autism and I would see him regularly and provide him with assistance to help him cope as he needs a stable support network. If I am forced to leave Australia, my son will lose all of the help and support I provide him and his mother.
In regards to his infant daughter, the Applicant writes:
I am very close with my partner and our newborn child. I want the best for them and always try my hardest to make myself available. We care very deeply for one another.
These sentiments are echoed in the statutory declaration provided by his current partner, the mother of the Applicant’s infant daughter, who writes:
I ask you please consider what cancelling his Visa would do to myself, my family and most importantly, the relationship between him and his son.
I would struggle in raising our newborn child without [the Applicant’s] emotional, financial, physical support. I do not want our child to have to grow up without a father. If [the Applicant] is removed from Australia it is very likely that I will not relocate to New Zealand, which will result in the permanent fracture of our relationship, as our child’s parental bond with [the Applicant] will be enormously affected. Given that I believe that [the Applicant] will play a significant emotional importance on his parental responsibilities, it is reasonable that we will face significant hardship if he is deported to New Zealand. I believe a child raised with both parents will have the best advantage in life and less vulnerable to the risks of society.

In her testimony Ms LL recounted her initial meeting with the Applicant, who was with his son. She said that the Applicant and his son spend a lot of time together and the Applicant’s son is a ‘great kid’ but that due to his autism he can be challenging. She told the Tribunal that the Applicant ‘is a really great dad to him and able to be very patient and loving and attentive towards his son’. She said that the example that he has set is part of the reason why she is so much wanting for the Applicant to be a part of their daughter’s life. Asked to provide more details about the relationship between the Applicant and his son, Ms LL said:
[The Applicant’s son] loves his dad, and I think it’s been hard on him while he’s been detained and one incident that stands out to me was one day when we were playing and [the Applicant] wasn’t feeling that well at all, and it was quite under the weather and [his son] was being particularly difficult that day. [The Applicant] still remained calm even though I know it would have been very trying to be so patient.
Ms LL said that the Applicant was much better at understanding his son’s autism and positively influencing his behavior than other people because he can relate to him as he is also autistic.
Since his trial, contact between the Applicant and his son has only been over the phone. The Applicant said that whilst initially he used to call his son every night, his former partner suggested that it was not a good thing for him to do that because it exacerbates the anxiety that his son feels around the Applicant being in detention and consequently not being able to spend time with him. In order to manage his son’s behavior phone calls between him and the Applicant have been limited to weekends.
The Applicant’s relationship with his son was explored in some detail at the hearing. When asked how he would describe the relationship between the two of them he described it as ‘excellent’:
We are really good, as far as I can see … minus this incident, and it is a big minus, but I like to think I’m a fairly good father. I’m very attentive. Being autistic, you have to pay attention to a lot of people’s manners and so, I’m very attentive to my kids… I am constantly taking him places on the weekends and you know, trying to be the father that I, you know, I never had because my dad was always working.
The Applicant confirmed that he has spoken to his son about his current circumstances and that his son was sad and disappointed.
How do you tell your son your dad’s not perfect? How do you tell him… I might not be here to support you?
The Applicant informed the Tribunal that he has told his son some of the details of his offending but not all. His testimony indicates he has placed appropriate boundaries around his offending to protect not only his son, but the relationship between his son and his eldest daughter, the victim of the offending. He is clearly conscious of the need to carefully navigate this issue to protect both his son and his elder daughter from any further consequences of his actions.
It was also apparent that the Applicant has thought through some of the practical issues around the ongoing support of his son and the consequences of his offending and the nature of his offending. This included, for example, his inability to pick his son up from school. This indicated to the Tribunal that the Applicant is sincere in his desire to continue to perform an active role as a father but to do so with deference and respect of the consequences of his offending both in terms of the law and the potential future impact on his children.
At the hearing the Applicant was asked about his eldest daughter who is the victim of his offending. He said that he respects that it is entirely up to his daughter if and when there is contact between them in the future. He said ‘you can’t make amends until somebody wants to approach you’. Asked if he was aware of any of the impacts that his offending has had on his daughter he said that he was not but he could imagine and ‘it would not be good at all’.
The Respondent submits that it would not be in his eldest daughter’s best interests for the Applicant to remain in Australia given that by his own admission the Applicant “has no intention to contact [her] as he has put her through enough hurt”. The Respondent is also of the view that any financial contribution provided by the Applicant to his children could be continued were he to relocate to New Zealand. The Respondent is of the view that this consideration should be given limited weight.
The Tribunal has considered the best interests of each child separately, and accepts the importance of the Applicant in helping ensure a stable and supportive environment for his infant daughter. The Applicant in particular has a unique supportive role to play in his son’s life given the special needs and their strong relationship. It is also apparent that the Applicant has taken measures to respect the needs of his eldest daughter.
The Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory visa cancellation.

Primary Consideration C – The Expectations of the Australian Community

The relevant paragraphs in the Direction

In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect, and (2) any overarching principles and guidance provided by the Direction. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not hold a visa.

The evolution of the Australian community’s “expectations”

79.      Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
80.      In 2003, Deputy President Block of this Tribunal said that one must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”
81.      Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction. The learned Deputy President thought this paragraph leads a decision-maker to:
…conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.
82.      The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:
In substance this consideration is adverse to any applicant…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 has been convicted of serious crimes.
83.       The learned Mortimer J also thought the last two sentences of paragraph 13.3 of the Direction:
… [are] 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 a 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.
…
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…
84.      In Afu v Minister for Home Affairs, Bromwich J said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
85.      In FYBR v Minister for Home Affairs, Perry J observed that:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...

FYBR was appealed to the Full Federal Court. On 25 October 2019 the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)       the ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. Rather, it is an assessment of community values made on behalf of that community.
(b)       the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;
(c)       the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” of those statements, if made;
(d)       in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.
The Applicant has resided in Australia since 1997. All his close family members reside in Australia, including his mother, father, sister, stepsisters, children, partner and grandchildren. Whilst he has relatives in New Zealand, they are not familiar to him and there is no contact.
The Applicant had a moderately difficult upbringing coming from a broken home and having an untreated condition of autism. He has, however, worked almost continuously throughout his adult life maintaining a stable job and income.
The Applicant’s partner is an Australian citizen. She gave evidence to the tribunal about their relationship. She is reliant on the Applicant’s help to support her and their infant child. Evidence is before the Tribunal which strongly indicates that the Applicant and his partner have maintained a close and supportive relationship whilst he has been incarcerated and detained.
The Applicant and his partner have recently had a child together. The Applicant also has two other children.
The Applicant has provided character references from his father, his sister, his former and his current partner. These character references support the proposition that the Applicant has made a serious mistake, but one that is out of character. They also support the evidence provided by the Applicant that he is committed to using this as an opportunity to better himself with a view to ensuring he becomes a better man and a strong role model for his children. All of these considerations must be weighed against the Applicant’s behavior in committing a very serious offence against a vulnerable child.
Having regard to the whole of the evidence, and particularly the manner in which the Applicant has conducted himself from the moment he was charged - seeking help, reaching out and accepting responsibility - I am grateful to Senior Member Nikolic who wrote in Puni v Minister for Home Affairs [2019] AATA 3943:
The community's underlying expectation of compliance with the law is tempered with a degree of tolerance and acceptance of some risk from the conduct of non-citizens, depending on its seriousness. The community also generally expects that people will be given an opportunity to realign their behaviour with expected social norms.
In this case the evidence suggests that the Applicant is seeking to realign his behaviour and ensure he stays within expected social norms. This is a sole offence, he has never before been warned that his visa may be revoked, and indeed, until his offending there was no cause to do so. Before the Tribunal the Applicant presented as an individual whose feeling of shame was intense. He nonetheless testified with honesty and he neither sought to diminish his offending or the extent of the harm he has caused.
In these circumstances, the Tribunal considers it appropriate to afford the expectations of the Australian community moderate weight in favor of non-revocation.

other considerations:

When deciding whether to cancel a Visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include, but are not limited to:
(a)       International non-refoulement obligations
(b)       Strength, nature and duration of ties
(c)       Impact on victims
(d)       Impact on Australian business interests
(e)       Extent of impediments if removed

Other consideration 1: International non-refoulment obligations

No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is afforded no weight.

Other consideration 2: Strength, nature and duration of ties

Paragraph 14.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia. The Applicant has made a productive contribution to the economy through his consistent employment and has demonstrated a solid work ethic. There is no doubt that if the Applicant’s visa is not restored and he leaves Australia that this will have a significant emotional impact on his current partner, infant daughter and his son who all reside in Australia. The Applicant’s partner has stood by him.
The Tribunal accepts the heartfelt sentiments expressed by his partner and the Applicant’s father. Though the Applicant identifies himself as his father’s ‘primary carer’, it is clear that his father is self-reliant.
Because of the length of time that the Applicant has been in Australia and the fact that his immediate family lives here, I find that this consideration weighs strongly in favour of revoking the mandatory cancellation of the visa.

Other consideration 3: Impact on Australian business interests

This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There is no evidence from either party that this is the case in the Applicant’s particular circumstances.

Other consideration 4: Impact on victims

The Direction provides that decision-makers should take into account the impact on victims where information is available. There is, in the words of the Respondent, “scant” evidence before the Tribunal as to the condition of the child victim. In the absence of available evidence, the Tribunal finds that this consideration weighs neutrally.

Other consideration 5: Extent of impediments if removed

This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to New Zealand and maintaining basic living standards, in the context of what is general generally available to other citizens of that country. Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.
The Respondent acknowledges that whilst the Applicant may face some initial challenges in establishing himself in New Zealand, these would not be insurmountable given the Applicant would face no language barriers and would have equal access to health care, education and welfare as other New Zealand citizens.
The Applicant however contends that he would be unable to maintain employment in New Zealand due to his lack of qualifications and professional networks. The Tribunal accepts that there is an element of truth to this view in circumstances where the Applicant is essentially unqualified for the position he holds as a painter and is in the early training phase of his new trade.
The Tribunal finds that these factors weigh in favor of revocation.

conclusion

As mentioned earlier, section 501CA(4)(b) of the Act stipulates two alternative conditions required to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (i) the Applicant must be found to pass the character test, or (ii) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
The Applicant’s serious offending precludes him form passing the “character test” in s 501(6) of the Act.
Having regard to these considerations in the Direction, the Tribunal finds:
(a)       Primary Consideration A is to be given medium weight in favour of non-revocation;
(b)       Primary Consideration B weighs heavily in favour of revocation;
(c)       Primary Consideration C weighs slightly in favour of non-revocation
(d)       The combined weight of Primary Consideration B and Other Considerations is such that they outweigh Primary Consideration A and C
The Tribunal therefore finds that, taking into account all of the considerations in the Direction; they do weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

decision

For the reasons outlined above, the Tribunal decides that:
(a) the decision under review, being the decision of a delegate of the Respondent dated 8 November 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is set aside; and
(b) in substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is revoked under section 501CA(b)(ii) of that Act.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 3 February 2020

Date(s) of hearing:

20 January 2020

Solicitors for the Applicant:

Mr T Mwilambwe, Go To Court Lawyers

Solicitors for the Respondent:

Mr J Hutton, Australian Government Solicitor