Magbanua and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 796

Magbanua and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 796 (31 October 2024)
Applicant/s:  MAGBANUA, Matt Laurence Apellido
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/5726

Tribunal:Senior Member N Manetta
Place:Adelaide
Date: 31 October 2024

Date of written reasons: 18 November 2024
Decision:The Tribunal sets aside the decision under review and decides in substitution that the cancellation of the applicant’s visa be revoked.

.....[SGND]..................................................................
Senior Member N Manetta

CATCHWORDS
MIGRATION – mandatory cancellation of visa – sexual assault – whether another reason to revoke mandatory cancellation – 19-year-old offender acting on impulse – Court finding excellent prospects of rehabilitation and very low risk of recidivism – Court directing its remarks expressly to respondent in this regard - assault only instance of criminal offending – strong family ties – decision set aside
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
SECONDARY LEGISLATION
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110— Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

I delivered my decision in writing in this matter on 31 October 2024. I now provide a statement of my reasons as required by section 111 of the Administrative Review Tribunal Act 2024 (Cth).
This is an application by Mr Matt Laurence Apellido Magbanua seeking a review of a decision of the respondent’s delegate dated 7 August 2024. By this decision, the delegate declined to set aside an earlier decision taken within the respondent’s Department to cancel Mr Magbanua’s visa.[1] This earlier decision had been taken mandatorily under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) following Mr Magbanua’s conviction of a serious sexual assault for which he was sentenced to jail for over two years.
[1] A Class EN Subclass 186 Employer Nomination visa (granted to Mr Magbanua’s father).
Mr Magbanua made a timely application for internal review. The internal-review delegate had two questions to address when deciding whether to set aside the cancellation decision. The first was whether Mr Magbanua passed the so-called ‘character test’ under section 501(6) of the Act. The second question, which only arose if the answer to the first question was no, was whether there was ‘another reason’ warranting the revocation of the cancellation decision. In this regard, the delegate was required to apply any direction issued under section 499 of the Act. The delegate applied Direction no. 110 in this regard (hereafter ‘the Direction’).[2] The delegate answered the two questions I have identified as follows. First, the delegate found that Mr Magbanua did not pass the ‘character test’. Given his conviction of a very serious offence, the delegate was clearly right in that conclusion, and no contrary position has been put to me.[3] So far as the second question was concerned, the delegate found, on balance, that a weighing of the factors under the Direction did not favour revocation of the cancellation decision. Accordingly, the delegate found that the power to set aside the decision under review under section 501CA(4)(b) was not enlivened, and the delegate declined to take the action requested by Mr Magbanua.
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
[3] Mr Magbanua could not pass the test as he had a ‘substantial criminal record’ as defined: see section 501(6)(a) and (7)(c).
TRIBUNAL’S TASK
Hearing the matter afresh, I must address the same two questions as the delegate. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[4] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons; and the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[4] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
STATEMENT OF CONCLUSION
I have decided that I should set aside the decision under review and substitute a decision that the cancellation of Mr Magbanua’s visa be revoked. I agree with the delegate that Mr Magbanua fails the character test on account of his criminal conviction and no contrary submission was made by either party. After weighing the various considerations required to be addressed under the Direction, however, I have decided that the preferable decision favours revocation of the cancellation decision. I now turn to set out the background facts and the reasons for my conclusion.
BACKGROUND FACTS
Mr Magbanua was born in the Philippines in July 2001. He arrived in Australia in June 2017, just before turning 16, his father and mother having preceded him in 2011 and 2015, respectively. Mr Magbanua has one sister.
Upon his arrival in Australia, Mr Magbanua attended high school and completed his Year 12 certificate. He has had some work experience, but relatively minor, although the sentencing Court referred to his ‘excellent work ethic’.[5]
[5] Ex R1, 47.
In 2020, when he had turned 19 years of age, Mr Magbanua committed a serious offence. He sexually assaulted a 17-year-old female victim in circumstances I shall describe in due course. The offending took place at a birthday party. The female victim had drunk too much and was asleep in a bedroom. Mr Magbanua entered the bedroom and, while the victim was semi-conscious, he introduced his penis into her mouth. The amended statement of agreed facts said that the complainant performed an oral sexual act on Mr Magbanua for some time. He did not desist when a juvenile co-offender entered the room. The co-offender was only sixteen years of age. The co-offender witnessed Mr Magbanua’s sexual act and Mr Magbanua did not desist from it when the co-offender entered the room. This made Mr Magbanua’s offence an aggravated one. The co-offender then engaged in a non-consensual act of vaginal intercourse which Mr Magbanua witnessed.
The victim eventually woke up and cried out. Another female person who had been sleeping in the room was then aroused and told Mr Magbanua and his co-offender to leave the room, which they did.
Mr Magbanua and his co-offender encouraged a juvenile to take the blame for the offending, and they planned what they would say to police. Some two weeks after the offence, Mr Magbanua was arrested. He denied the offending. In December 2021, he participated in a further police interview and again denied his offending. He was charged with one count of non-consensual sexual penetration in circumstances of aggravation (namely, that another person, his co-offender, was present at the time).
The matter proceeded eventually to trial. Mr Magbanua did not deny the fact of intercourse at the trial. The sentencing remarks record that he pleaded guilty to nonconsensual intercourse, but he maintained that he held an honest belief that the victim was consenting. This required a separate trial on this issue. Mr Magbanua was found not to have had an honest belief that his victim was consenting. The Court noted that this stance reduced ‘to an extent’ the utility of the guilty plea.
In the event, Mr Magbanua was sentenced to a term of imprisonment of two years and three months commencing in June 2023. He became eligible for parole half way through that sentence.
Mr Magbanua’s visa was cancelled on 28 July 2023, as was required by law, while he was in jail. He left Australia when paroled rather than enter immigration detention and presently resides in the Philippines. He gave evidence that he manages his father’s farm and lives with his grandparents.
So far as Mr Magbanua’s personal life is concerned, he is in a relationship with a Ms N. She describes herself as his ‘girlfriend/de facto partner’ in her statement.[6] Ms Jones-Bolla, for the respondent, accepted this characterisation of the relationship. Ms N has forgiven Mr Magbanua for his sexual assault and, after a period of separation, now wishes to rebuild their lives together.
REASONS
[6] Ex R1, 152[1].
Direction 110
I now turn to the Direction. In my decisions, I regularly set out certain standard prefatory paragraphs I have drafted explaining aspects of the Direction. I do so again in what follows from [16] to [19].
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over ‘other’ considerations.
Application of Direction 110
I turn now to apply the Direction. I first consider the ‘primary’ considerations. The first consideration is the protection of the Australian community. Paragraph 8.1(1) requires decision-makers to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. This principle has particular resonance in circumstances of a sexual assault.
Decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the community should the noncitizen commit further offences or engage in other serious conduct: see paragraph 8.1(2) of the Direction.
The sexual assault in this case must be regarded very seriously under paragraph 8.1.1 of the Direction. It involved a sexual crime against a female who was not yet an adult. The sentence imposed marked out the seriousness of the offending. It was as low as it could be in the proper exercise of the Court’s sentencing function[7] given the excellent prospects of rehabilitation and the very low risk of reoffending.[8] Nevertheless, the sentence was a relatively long one, especially for a person of Mr Magbanua’s relative youth and given that it was his first experience of jail.
[7] Ex R1, 49.
[8] Ex R1, 43.
I proceed on the basis that the offending was clearly extremely serious. This is the only instance of criminal conduct in Mr Magbanua’s record. There is no trend as such in his offending, but I do bear in mind that the offending was prolonged and Mr Magbanua also witnessed his co-offender’s offending (although he did not ‘actively aid’, participate or ‘encourage’ as such that offence).[9]
[9] Ex R1, 38.
I turn now to the question of risk. Paragraph 8.1.2(1) provides that decision-makers should have regard to the Government’s view that the community’s tolerance for risk becomes lower as the seriousness of the potential harm increases. I must bear in mind that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. That is an important principle to bear in mind in the context of sexual assault. It is extremely serious to assault another person sexually.
In assessing risk, I am to have regard to two matters ‘cumulatively’. These matters are the nature and harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of the non-citizen so doing taking into account information and evidence of risk and evidence of rehabilitation achieved by the time of my decision.
So far as the first matter is concerned, I regard the harm of any repetition of a sexual assault of this type as extremely serious. I proceed on the basis that a sexual assault of this type can have profound ongoing psychological consequences for a victim.[10] In this case, the victim was only 17. She was asleep, having attended a friend’s birthday party. The offending occurred at a time and in a place when she could not reasonably have apprehended any risk to her personal safety. Being intoxicated at the time, she was clearly vulnerable.
[10] The sentencing remarks advert to a serious negative impact: see Ex R1, 47.
I must also assess Mr Magbanua’s risk of recidivism. In this regard, I believe the risk of recidivism is very low. I base myself on a number of significant matters. First, I believe it is appropriate to weigh the considered remarks at the sentencing Court. The sentencing Court expressly found the prospects of reoffending very low.[11] The Court also noted that the offending was ‘impulsive’,[12] and I note in this regard that Mr Magbanua was only 19 at the time of the offence. I bear in mind that this is the only offence in Mr Magbanua’s record. Were he to return to Australia, he would be subject to parole conditions for the balance of his term, that is, until September 2025.
[11] Ex R1, 43.
[12] Ex R1, 45.
I accept that sentencing remarks do not indicate that Mr Magbanua was drunk at the time of the offending. When determining the issue of Mr Magbanua’s honest belief (or otherwise), the Court records that it accepted Mr Magbanua’s evidence that he had drunk alcohol that night but was not so drunk that he could not remember what was happening or what was going on.[13] This would suggest, however, that Mr Magbanua was not completely sober. The Court noted that Mr Magbanua had moderated his alcohol intake very significantly and that this, along with other factors, reduced his risk of reoffending.[14]
[13] Ex R2, 102.
[14] Ex R1, 47.
There would be pro-social aspects to Mr Magbanua’s future life in Australia. In this regard, I note that Mr Magbanua has a firm commitment to his partner, and she to him. She gave evidence on his behalf. That partner would be, in my opinion, a stabilising influence on Mr Magbanua, even though it must be acknowledged that her influence had failed to curb his alcohol intake in the past.
I take into account the positive effects of jail on a first-time and young offender, both in terms of rehabilitation and in terms of offering a very real deterrent in respect of future conduct. My assessment of Mr Magbanua, when he gave evidence, is that he does not lack intelligence. He well understands that any further offending would see him serve a significantly longer period in jail (as a repeat offender) and that his visa would be cancelled again with very little prospect of reinstatement (given that he has already had his visa cancelled once). He is aware that he needed to reform his life. There is, in my opinion, an understanding of how his life opportunities would be grievously affected if he were to re-offend.
Ms Jones-Bolla put to me that the history of the criminal proceedings does not disclose regret or remorse by Mr Magbanua for his actions. I agree that Mr Magbanua did not admit to the offence, but immediately sought to transfer blame to a minor who was persuaded to accept responsibility for a crime he had not committed. Moreover, Mr Magbanua sought to mitigate the seriousness of his conduct by asserting an honest but mistaken belief in the victim’s consent to the unlawful act. Ms Jones-Bolla also referred to the delayed guilty plea and that Mr Magbanua had insisted upon his innocence for quite some considerable time and had only admitted the offence when it became clear that incontrovertible DNA evidence linked him to the offending. Ms Jones-Bolla pointed to this history as inconsistent with genuine remorse.
The following points may be made. A person may be genuinely remorseful, but at the same time extremely concerned about the consequences to himself or herself (including the consequence of jail), and so still proceed to deny the offending. Of course, one must also acknowledge that a person may not feel genuine remorse in such a case. I agree that the history does not show that Mr Magbanua demonstrated remorsefulness in this matter when the criminal proceedings were underway. He may have been remorseful, but I accept that there is no demonstrable proof of that matter.
More importantly, for present purposes, however, the Direction does not focus on remorse as such but requires an evaluation of risk. In this case, it is very low in my estimation whether or not Mr Magbanua feels genuine remorse for his victim.
Nevertheless, I remind myself that under the Direction, the risk of recidivism must be assessed ‘cumulatively’ with the harm that would be caused if Mr Magbanua were to reoffend. As I have already indicated, the harm that would be caused to an individual if Mr Magbanua were to reoffend could be profound. That is an important matter to bear in mind.

There is no family violence for me to consider under paragraph 8.2.
I must consider the strength, nature, and duration of Mr Magbanua’s ties to Australia paragraph 8.3. I accept that Mr Magbanua’s partner would be severely affected by his deportation. That is an important matter. Understandably, as she would have to consider matters very carefully before joining him in the Philippines. And I take into account that life in the Philippines is unlikely to be as congenial for her as life in Australia. His permanent exclusion from Australia would mean, practically speaking, the end of their relationship as a couple unless she joined him in the Philippines.
I accept that Mr Magbanua has ties to his family in Australia and, in particular, to his mother and father. He is still relatively young and they have a natural concern for him, which would perhaps be lesser if he were older. I accept, however, that he is presently living with family in the Philippines managing his father’s farm, and that he had been in Australia only a relatively short period of time when he offended. He has re-established himself in the Philippines and has extended family contact there. The parents could always visit him there.
I must consider the best interests of minor children in Australia under paragraph 8.4. Mr Magbanua’s partner’s nieces would be affected by his departure. I accept that these children would benefit from his continued presence. But I do bear in mind that these children have parents of their own, and he may continue to make contact with them through internet calls and the like. His relationship with them is not parental. Therefore, there is some weight to be attached to these relationships but it is not significant weight in my opinion.
I must have regard to the expectations of the Australian community under paragraph 8.5. Paragraph 8.5(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community ‘as a norm’ expects the Government to remove the non-citizen from Australia. In this case, there has clearly been a serious breach of the community’s expectations in this regard. I acknowledge therefore that ‘as a norm’, although not as an inflexible rule, the Australian community expects Mr Magbanua to be deported. Subparagraph (2) is also important because the offending in this case clearly affords an example of conduct where it may be appropriate, because of the nature of the conduct itself and the character concerns arising from it, not to permit Mr Magbanua to re-enter Australia. Commission of serious crimes against women and children are instanced as types of crime that give rise to serious character concerns. Subparagraph (3), I note, provides that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. I note that by subparagraph (4), I am to proceed on the basis of the expectations as articulated in paragraph 8.5 and that I am not to assess the community’s expectations in a particular case for myself. This is a consideration that clearly weighs heavily against Mr Magbanua.
So far as the ‘other considerations’ in section 9 are concerned, the legal consequence of a decision to affirm the decision under review would be to end, for practical purposes, Mr Magbanua’s right to re-enter Australia. He would suffer as a consequence of that decision. He has an interest in the relationships he has both with his partner and with his parents. I have already referred to the impact upon his partner and his parents, but under section 9 I should weigh, I believe, the impact upon Mr Magbanua himself of his removal from Australia. I accept that the relationship with his partner is a genuine one. It would be very difficult to maintain that relationship from the Philippines unless his partner joined him there. I think Mr Magbanua is still young enough that he would benefit substantially from his parents’ guidance and one-on-one support. Nevertheless, I acknowledge that he is living with grandparents and his parents could visit him in the Philippines from time to time.
I do not think there are other considerations arising under section 9 that I need to weigh and I do not see any impediments as such for him.
Weighing the considerations
I turn now to weighing the considerations. The offending in this case is of the most serious kind. Offending of this kind is the subject of various observations in the Direction; accordingly, it is to be weighed very seriously from a number of different angles. If the offending were repeated, it could affect egregiously another member of the community for a very long time. Sexual offending of this type runs entirely contrary to the community expectations that are set out in the Direction, and I note again that these expectations are to apply irrespective of the risk of recidivism. The offending gives rise to very serious character concerns. Sexual crimes are singled out as crimes that are required to be considered as very serious. The victim was very young in this case and was assaulted at a time when she was particularly vulnerable given her own intoxicated state. She had done nothing to lead Mr Magbanua to believe that she was open to the idea of intercourse with him. The Direction records that Australia has a very low tolerance of serious criminal conduct by those who have been participating in the Australian community for only a short period of time. I accept that the Direction gives great weight to the protection of the Australian community, which is the most important of the primary considerations, generally speaking, and which weighs more heavily, generally speaking, than other primary considerations.
I am required, however, to apply the Direction by assessing the individual circumstances of his case. It is the individual circumstances of the case that inform the proper exercise of the evaluation of factors and their weighing under the Direction: see for example paragraph 5.1(3) of the Direction.
I believe it is appropriate to bear in mind exactly what the sentencing Court had to say. In particular, I would refer to the following passage in the sentencing Court’s remarks:
I accept that you have excellent prospects of rehabilitation and the prospects of reoffending are very low. I take into account in that regard the steps that you’ve taken, for example, counselling and treatment in relation to the misuse of alcohol, the character references and the obvious family support that you continue to enjoy. I expressly consider that those are matters that the executive government should take into account if it comes to determine in the future if you should stay in this country.[15]
[15] Ex R1, 43.
I accept fully that it is not for me to defer, as such, to the sentencing Court in the exercise of my own statutory jurisdiction. I accept that I must weigh the various factors that are required to be weighed for myself; and in any event, I note the sentencing Court did not expressly say that Mr Magbanua should remain in Australia. Nevertheless, the Court did point to the excellent prospects of rehabilitation and the very low prospects of reoffending, and drew these matters expressly to the respondent’s attention in connection with Mr Magbanua’s prospective deportation. The Court referred elsewhere to the lack of premeditation in the offending, and to the offending being ‘impulsive’, to Mr Magbanua’s excellent work ethic and good prospects generally within the community. It also referred to Mr Magbanua being a person of positively good character (apart from the very serious offending).
These observations represent a considered view of Mr Magbanua by a criminal court responsible for administering the criminal law of Australia. These considered views are important because, when exercising my own statutory functions, I believe I should weigh carefully the considered views of the sentencing Court. I must not defer to them routinely or automatically, of course, and I must not fail to exercise my own statutory jurisdiction, as I have said, which requires me to evaluate and weigh considerations having regard to the evidence before me. But, in my opinion, I should give careful consideration to the views of a sentencing Court.
In this case, I have decided to accept what the sentencing Court has put. The risk of recidivism is in this case is very low while the prospects for rehabilitation are excellent. There are serious family ties, including importantly, the tie with his partner, which are important in the weighing process in this case. This is an unusual case because Mr Magbanua has not been in Australia particularly long and the offending is of a very serious character. Nevertheless, having regard to the individual circumstances of this case, I believe it is appropriate to conclude, after applying the Direction, that the preferable decision favours revocation of the cancellation decision. Accordingly, I have decided that there is ‘another reason’ for the cancellation decision to be revoked under section 501CA(4)(b).
FORMAL DECISION
My decision, therefore, will be to set aside the decision under review and to substitute a decision that the cancellation of Mr Magbanua’s visa be revoked.
I certify that the preceding forty-eight (48)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
N Manetta
[SGND]
……………………………..
Associate
Dated: 18 November 2024
Date of hearing:  8 & 9 October 2024
Advocate for the Applicant:      Jasmin Angel,
  Estrin Saul
Advocate for the Respondent:  Daphne Jones-Bolla,
  Sparke Helmore