MBJY and Minister for Home Affairs (Migration)

MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 (7 June 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1562
Re:MBJY
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:7 June 2019
Place:Perth

The Reviewable Decision, being the decision of the Respondent’s delegate dated

15 March 2019, is affirmed.
.......................[sgd].................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction no. 79 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – extent of impediments if returned to India – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba),
s 500(6B), s 500(6L), s 501, s 501(3A),s 501(6), s 501(6)(e), s 501(7),
s 501CA, s 501CA(4), s 501G(1)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration & Border Protection [2017] FCAFC 96
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Eteuati in Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Greene v Asst Minister for Home Affairs [2018] FCA 919
Hambledon v Minister for Immigration and Border Protection [2018] FCA
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Margach and Minister for Home Affairs [2019] AATA 353
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nguyen and Minister for Home Affairs [2018] AATA 3726
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Omar the Minister for Home Affairs [2019] FCA 279
PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Toki and Minister for Home Affairs (Migration) [2019] AATA 742
Turay v Asst Minister for Home Affairs [2018] FCA 1487
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report: India (17 October 2018)
English Oxford Living Dictionaries (2018), Oxford University Press < dictionaries.com/definition/violent>.
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (22 December 2014).
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) – paras 6.1, 6.2, 6.3, 7, 8, 13, 14, Part C.
REASONS FOR DECISION
Member S Burford

This is an application for review of a decision made on 15 March 2019 under

s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Partner (subclass 801) visa (the visa) (the Reviewable Decision).
The visa was cancelled on 5 July 2018 under s 501(3A) of the Act on the basis that the Applicant had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of Western Australia (the Original Cancellation Decision).
THE ISSUE
The issues before the Tribunal are whether the Applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether there is another reason why the mandatory cancellation of the visa should be revoked under s 501CA(4)(b)(ii) of the Act.
The Applicant concedes that he does not meet the character test (A1, paragraph 33). The Tribunal finds that he does not pass the character test. Therefore, the only issue for determination is whether there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked (s 501CA(4)(b)(ii) of the Act).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision, dated 15 March 2019, was delivered to the Applicant by email under cover of a letter dated 15 March 2019 (R1, G2).
The Applicant lodged his application for review in the Tribunal on 22 March 2019
(R1, G1). The Applicant is in Yongah Hill Immigration Detention Centre and is in the migration zone. He therefore lodged his application for review within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and
s 500(6B) of the Act.
The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Act, the Tribunal must comply with the
84 day timeframe for handing down a decision in this matter. Accordingly, the decision must be handed down by 7 June 2019.
The Tribunal notes that Direction no. 79 is applicable due to the date of this decision by the Tribunal. This is discussed in further detail below in the section headed “Direction no. 79”.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 23 May 2019. The Applicant appeared in person and was represented by Ms Graziotti from Estrin Saul Lawyers,. The Respondent was represented by Ms Jackson from The Australian Government Solicitor.
The Applicant gave oral evidence and was cross-examined. Both the Applicant and the Respondent’s representatives made written and oral submissions.
The Applicant called several witnesses in support of his application. In addition to the Applicant, the following witnesses appeared before the Tribunal:
·the Applicant’s Mother;
·the Applicant’s Brother; and
·the Applicant’s Friend.
Each of these witnesses gave of oral evidence and was cross-examined. The Applicant’s brother appeared by telephone from New Zealand. The Applicant’s Mother was assisted by an interpreter in the English and Punjabi languages. The interpreter attended by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
·Exhibit A1 - Applicant’s Statement of Facts, Issues and Contentions, dated 6 May 2019 - including Annexures A to Y. Those annexures include 16 letters of support submitted by the Applicant, various reports including medical reports and documentation in support of application;
·Exhibit A2 – Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions, dated 20 May 2019;
·Exhibit A3 – Further documents submitted on behalf of the Applicant - including statements and other documents in support of the application;
·Exhibit A4 – Hearing Certificate from the Applicant, dated 6 June 2019;
·Exhibit A5 – Statement by the Applicant for his Parole Plan Application, dated
6 September 2018;
·Exhibit A6 – Statement of Applicant, dated 6 May 2019;
·Exhibit A7 – Statement of Applicant, dated 20 May 2019;
·Exhibit A8 – Statement of Applicant’s Mother, dated 02 May 2019;
·Exhibit A9 – Statement of Applicant’s Mother, dated 20 May 2019;
·Exhibit A10 – Statement of Applicant’s Brother, dated 7 May 2019;
·Exhibit A11 – Statement of Applicant’s Friend, dated 15 July 2018;
·Exhibit A12 – Statement of Applicant’s Friend, dated 28 April 2019;
·Exhibit R1 – ‘G Documents’ submitted by the Respondent, filed 29 April 2019;
·
Exhibit R2 – Respondent’s Statements of Facts, Issues and Contentions, dated

16 May 2019;
·Exhibit R3 – Respondent’s Supplementary Relevant Documents including documents produced on summons, filed 9 May 2019.
·Exhibit R4 – Department of Foreign Affairs and Trade, DFAT Country Information: India (17 October 21018)
BACKGROUND
The Applicant is a 32 year old Indian national. He grew up in India with his parents and twin brother. His parents live in Punjab, India,. His brother currently lives in New Zealand with his wife. Before arriving in Australia, the Applicant completed a Bachelor of Arts at a university in Punjab (R1, G7, page 33; A1, paragraph 4).
He arrived in Australia in October 2008, when he was 21 years old, as the holder of a Student visa (R2, paragraph 5; R1, G32, page 114). The Applicant met his now wife in late 2009 and they married in December 2010. The Applicant was granted the visa in March 2013 (see R2, paragraph 5; R1, G31, page 108).
The Applicant was notified by letter dated 5 July 2018 from the Department of Home Affairs (Department) that his visa was cancelled under s 501(3A) of the Act (the notification of cancellation letter) (R1, G31, page 108). The letter was delivered by hand to the Applicant at [redacted for publication] Prison (R1, G31, page 108). The Applicant did not acknowledge receipt of that letter on the copy in evidence (R1, G31, page 113). However, the Applicant responded to that letter by email on 11 July 2018, via his lawyer and registered migration agent, requesting revocation of the decision (R1, G8; G12; see also R1, G9 and G10). Accordingly, the Tribunal finds the Applicant received the notification of cancellation letter.
The letter from the Department advised the Applicant that he could make representations about revoking the decision to cancel his visa (R1, G31). The Applicant made submissions to the Department including providing material and third-party statements in support of his request for revocation (R1, G9, G10, G12).
The Department wrote to the Applicant again on 1 March 2019 providing him with a copy of Direction no. 79 and inviting him to comment on the information contained in the direction (R1, G33).
As noted above, under cover of a letter dated 15 March 2019 the Applicant was notified of the decision not to revoke the visa cancellation. That letter and the Reviewable Decision were delivered to the Applicant via email to his authorised recipient, his lawyer and registered migration agent, on the same day (R1, G2).
On 22 March 2019 the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal for review of the Reviewable Decision (R1, G1).
THE APPLICANT’S CRIMINAL HISTORY
The Applicant’s criminal history
The Applicant’s criminal history, as disclosed in a ‘Nationally Coordinated Criminal History Check’ issued by the Australian Criminal Intelligence Commission on 17 January 2019 (R1, G6, pages 27-28) is as follows:

Jurisdiction

Offence
date

Result
date

Offence

Result

WA

24/03/2015

· Damaging property; Criminal Code (WA); 445

·    Fine: $200

WA

02/04/2018

31/05/2018

· Indecently dealt with a child who is a lineal/ de facto relative: Criminal Code (WA); 329(4)

·    Imprisonment: 12 months from 31/05/2018 (head sentence)

·    Reportable Offender

WA

02/04/2018

31/05/2018

· Indecently dealt with a child who is a lineal/ de facto relative; Criminal Code (WA); 329(4)

·    Imprisonment: 12 months concurrent from 31/05/2018

·    Reportable Offender

WA

02/04/2018

31/05/2018

· Indecently dealt with a child who is a lineal/ de facto relative; Criminal Code (WA); 329(4)

·    Imprisonment:
8 months concurrent from 31/05/2018

·    Reportable Offender

Jurisdiction	Offence date	Result date	Offence	Result
WA	24/03/2015	· Damaging property; Criminal Code (WA); 445	· Fine: $200
WA	02/04/2018	31/05/2018	· Indecently dealt with a child who is a lineal/ de facto relative: Criminal Code (WA); 329(4)	· Imprisonment: 12 months from 31/05/2018 (head sentence) · Reportable Offender
WA	02/04/2018	31/05/2018	· Indecently dealt with a child who is a lineal/ de facto relative; Criminal Code (WA); 329(4)	· Imprisonment: 12 months concurrent from 31/05/2018 · Reportable Offender
WA	02/04/2018	31/05/2018	· Indecently dealt with a child who is a lineal/ de facto relative; Criminal Code (WA); 329(4)	· Imprisonment: 8 months concurrent from 31/05/2018 · Reportable Offender

As the criminal history indicates, prior to the three ‘indecent dealing’ offences for which the Applicant was convicted on 31 May 2018, the Applicant had only one prior offence for property damage in March 2015.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act provides that:
For the purposes of this section, a person does not pass the character test if:
1.1.the person has a substantial criminal record (as defined by
subsection (7));
…
(Original emphasis.)
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction no. 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Act. The direction commenced operation on

28 February 2019, replacing the previous direction, Direction no. 65.[1] Consequently, as the Tribunal is handing down this decision on 7 June 2019, the Tribunal must apply

Direction no. 79. The Tribunal proceedings were conducted on the basis that

Direction no. 79 applied and both the Applicant and the Respondent agreed to this approach.
[1] Minister for Immigration and Border Protection, Direction no. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).
Paragraph 6.1 of Direction no. 79 sets out the “Objectives” of the Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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 to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, 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.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
The Applicant’s Statement of Facts, Issues and Contentions (A1, A2) and submissions to the Tribunal outlined the Applicant’s central contentions as to why the ‘other reason’ why the cancellation should be revoked. The Applicant’s primary contention was that the best interests of the Applicant’s [redacted for publication]-year-old Australian citizen son constitutes another reason why the cancellation should be revoked and that the relevant principles and considerations weigh in favour of revoking the cancellation of the Applicant’s visa (A1, paragraph 40).
With respect to the relevant principles and considerations the Applicant contended as follows:
·Having regard to the circumstances of the Applicant’s offences, while they were serious they were a one-off, opportunistic exercise and were a low-level of offending of that type, as recognised in the Sentencing Judge’s comments (A1, paragraphs 45-66). Notwithstanding this, the Applicant conceded the nature of the offences was such that this consideration weighed against revocation.
·The risk to the Australian community of the Applicant reoffending is very low (A1, paragraphs 67-114):
oThere is no evidence the Applicant is of any risk of offending except in matters relating to step-children. His offending occurred in the context of a dysfunctional relationship with his step-children. In the absence of any evidence of any other offending history the Tribunal should rely on the Applicant’s statements of remorse and commitment not to reoffend in finding he does not present an unacceptable risk to the community.
oThe Applicant is now a Reportable Offender, the conditions of which reduce the risk of him reoffending.
oThe Applicant is remorseful for his actions and is aware of the impact his offending had on the Victim and on his wife and child. He recognises that further offending could cause psychological harm to a victim.
oIn prison the Applicant has undertaken voluntary courses where available to him including the ReSet Program and skills training. He has also sought medical assistance for mental health issues while in prison. These actions indicate the Applicant has accepted his conviction and is working on self-improvement to lower his risk of recidivism.
oThe Applicant has strong protective factors in the form of family and community support to assist him with returning to the community and not reoffending. His family and friends are aware of his offending and thus better placed now to support him to not reoffend.
oThe collective impact of the consequences of the Applicant’s offending for him and in particular for his family are a strong deterrent against future offending.
Accordingly, the Applicant contends his risk of reoffending is extremely low and should not weigh in favour of non-revocation or alternatively should not outweigh other primary and secondary factors which favour revocation.
·The Applicant’s Australian citizen child’s best interests are served by revocation of the cancellation decision:
oThe Applicant has a close relationship with his son and has been, and wishes to continue to be, involved in his upbringing and providing him with care and protection.
oThe child’s best interests would be served by him being afforded the opportunity to enjoy the benefits of his parents’ joint presence in his upbringing. As his mother is an Australian citizen and would have difficulties living and working in India and the child is not a citizen of India this requires the child, and the Applicant, to remain in Australia.
oThe child has had problems coping in India while living with his grandparents there in recent months.
o
The cost of travel between Perth and India would be prohibitive and would prevent ongoing regular contact between the Applicant and his wife and child if he visa remains revoked and he were removed to India.

Non-revocation would effectively result in the permanent separation of the child from one of his parents.
oAs the child’s mother has been unable to cope on her own and sent the child to India with the Applicant’s parents, it is likely that non-revocation would result in his son being forced to live and grow up in India, missing out on the opportunities he would enjoy in Australia as a citizen, coping in a country where he has limited knowledge of the language and culture and has struggled already with health issues and losing the opportunity of regular contact with his mother.
This consideration weighs in strongly in favour of revocation and should be of paramount importance and outweigh other primary considerations.
·Although the Applicant concedes the protection of the Australian community weigh’s against revocation, this factor is out-weighed buy other considerations.
·The Applicant fears returning to India because of community attitudes towards his convictions which place him at risk of physical and verbal violence and raises the risk his return would breach Australia’s non-refoulement obligations. This weighs in favour of revocation.
·The Applicant has strong family and social ties to Australia:
oHis offending occurred more than six years after he arrived. He has spent time positively contributing to the community through employment and has provided strong character references.
oNon-revocation would have a harsh financial and emotional impact on his wife and child who are Australian citizens. In particular as his wife has been unable to cope on her own it would result in his son being forced to live and grow up in India, missing out on the opportunities he would enjoy in Australia as a citizen and the opportunity of regular contact with his mother.
·There are substantial impediments for the Applicant if removed. The Applicant would have a lack of social support given his offences and the amount of time he has lived outside India. He is concerned separation from family and friends will worsen his depressive symptoms. The Applicant’s wife would struggle to relocate to India where she does not speak the language and would have significant social and employment challenges. This weighs in favour of revocation.
The Respondent submitted, in summary, that the protection of the Australian community and the expectations of the community weigh heavily against the Applicant and significantly outweigh the interests of the Applicant’s child, his limited ties to Australia and any impediments to his removal (R2, paragraph 4). The Respondent contended there was insufficient evidence that any non-refoulement obligation arose with respect to the Applicant’s circumstances.
These submissions will be dealt with in more detail below.
First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction no. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
(1)When considering 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 noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction no. 79 then provides:
(2)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.
As noted above, the Applicant submitted that, if the Reviewable Decision was revoked, his risk of reoffending would be low and the protection of the Australian community would not require that his visa remained cancelled.
The Respondent contended that the protection of the Australian community weighed heavily against revocation (R3, paragraphs 4 and 27).
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction no. 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes 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 subparagraph (b) above, the sentence imposed by the courts 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)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
As noted above the Applicant made a number of submissions in relation to his offending and the protection of the Australian community. With respect to the nature of his offending, these submissions included (A1, paragraphs 45-66):
·Having regard to the circumstances of the Applicant’s offences, while they were serious they were an isolated incident. There was no evidence of grooming of the child or of prior offences against the child. The Applicant has “otherwise had a blameless life” in the words of the Sentencing Judge;
·While the Applicant received a custodial sentence, the Sentencing Judge stressed a non-custodial sentence for this type of offending would have been very unusual;
·The offending occurred in the context of a difficult relationship with his step-daughters and financial pressure on the Applicant and his wife;
·The Applicant’s offending was not violent and he had no history of violent offending. His only other offence for property damage was a minor offence;
·The Sentencing Judge recognised the Applicant’s offending was at a “low level”.
Notwithstanding this the Applicant conceded the nature of the offences was such that this weighed against revocation.
The Respondent submitted that the Applicant’s offending should be viewed as very serious having regard to the following factors (R2, paragraphs 20-27):
·The principle that the government is committed to protecting the community from harm as a result of criminal activity and other serious conduct (cl.13.1(1) of Direction no. 79);
·The Applicant’s offending, involving sexual crimes against a minor, is in the category of the most serious crimes. This is reflected in cl.13.1.1(1) of Direction no. 79 and in the fact that such offending is a separate basis for failing the character test under s 501(6)(e).
·The victim was very vulnerable and the impact on her has been grave including being disbelieved by her mother.
·
There were aggravating factors in the commission of the offences including a

[redacted for publication] year age gap, the family environment of the offences, and the position of trust and authority the Applicant held.
·His sentences totalling 2 years and 8 months imprisonment, while able to be served concurrently, recognised the need for community protection as well as general and specific deterrence.
·The offence may have been opportunistic but it was not a momentary lapse or mistake.
The Respondent contended that the nature and seriousness of the offending weigh heavily against revocation having regard to the emphasis in Direction no. 79 on the need to protect the community, and particularly vulnerable members including minors, from serious crimes including sexual crimes.
The Tribunal notes that the Applicant arrived in October 2008 (R1, G32, page 114). He was convicted of damaging property in March 2015, around 6 and a half years from the date of his arrival in Australia. The Applicant submitted, and the Tribunal accepts, that this was a minor offence, reflected in the sentence imposed (a $200 fine) (A1, paragraph 63).
On 31 May 2018 the Applicant was convicted in the District Court of Western Australia of three offences of “indecently dealing with a child who is a lineal/ de facto relative” for which he was sentenced to a total of two years and eight months imprisonment to be served concurrently, making an effective prison term of 12 months subject to parole (13.1.1(1)(d) of Direction no. 79). Two of the convictions involved sentences of 12 months imprisonment. It is these convictions which gave rise to the mandatory cancellation of the Applicant’s visa.
The Applicant was eligible for parole in six months. The Tribunal notes that he was granted parole on 20 November 2018 and released into immigration detention on
5 December 2018 (R3, G38, page 277). The Applicant’s parole is considered further below.
Other than these two sets of offences, there is no evidence of the Applicant having committed any other offences in Australia or elsewhere.
At the sentencing hearing, Judge Davis DCJ (the Sentencing Judge) made the following findings with respect to the circumstances in which the offences were committed, in conformity with the findings made by the jury:
Based on the child’s evidence which the jury accepted these are the material facts I find for the purposes of sentencing and I’m satisfied of each of these matters beyond reasonable doubt. All three counts occurred while the two of you were in the lounge room of your home watching television. The other two occupants of the house, your wife and your [redacted for publication]-year-old son had gone to bed.
The two of you were on an L-shaped couch in the lounge room. You were lying with your head at one end of the couch, that was the long side of the couch which face the television. You were wearing loose box shorts and had no shirt on. The child was sitting on the other side of the couch on the L near the corner where the two sides joined. She was wearing shorts and a long-sleeved top.
While she was watching TV she looked over to see you pull your penis out from the bottom of your boxer shorts and start to play with it. She saw you stroke your penis slowly with your right hand which was wrapped around your penis at least twice. You were holding of your phone with the other hand.
Shocked to see what you are doing she averted her eyes and went back to looking at the television in order to avoid looking at you. You began to start a conversation with her and began moving your legs about, both of which the child thought was an attempt by you to get to look at you. But she did not look although she could see what you were doing certainly with your legs out of the periphery of her vision. This is the offending the subject of Count 2 [indecent dealing with the child by masturbating in her presence].
Eventually got up, you put your penis back inside your shorts and came and sat next to her with your thigh touching her thigh. You started to ask her questions of a personal and sexual nature. You began by asking about what her friends had done sexually and then what her older sister had done sexually and in particular whether her sister had been used by her father for sex.
You then wanted to know what this child had done with guys of a sexual nature. Because you kept nagging her about this she made of a story about kissing a guy at a party. You then told her a story about how when you the child’s age you lost your virginity to a 25-year-old at a wedding.
You began to ask her if you could be best friends and then you spoke about to her about doing sexual things. At some point you asked her whether she masturbated to which she replied, ‘”no”. You then suggested that if she ever felt like doing sexual thing she could do stuff for you. When she said, “no, please don’t”, you responded with the words “yes. It’s not like we’re going to have full sex. I’m not your dad so it’s okay to do things like that.” Of course it wasn’t okay.
You also asked whether she would ever have sex with older guys and then asked her what she did with guys. When she responded with the fact that she didn’t really like eyes touching her you began to stroke her thigh with your hand. You did this twice. She was scared and uncomfortable and started crying. When you asked why she was crying she lied and said it was because of the TV. You wiped away her tears with your fingers and kept stroking her thigh. This stroking was skin on skin contact as she was wearing shorts and is the conduct the subject of Count three [Indecent dealing with the child by touching her thigh].
You then asked if you could touch her and she said, “oh, please, don’t touch me.” But then you touched her right breast and squeezed it. You did this as you were, in her words, explaining things to her which I’m satisfied with sexual things. On the evidence you touched and squeezed her breast about six times. This was, however, over her clothing. This of course is the conduct the subject of Count 4 [indecent dealing with the child by touching her breast].
This continued until your wife, the child’s mother, walked into the room. When you stopped the touching and changed the conversation to a discussion about stress management although on the child is evidence there was still a sexual overtone to that discussion.
Your wife asked what your conversation with the child was about you reassured her that you were talking about stress management. You wife returned to the bedroom after which you continue to ask the child to do sexual things for you. The child felt you were pressuring her.
(R1, G7, pages 31-34)

Her Honour went on to note that:
I’m satisfied beyond a reasonable doubt that these offences are an isolated incident of offending against this child. On her own evidence you’ve never done anything sexual to her before.
(R1, G7, page 33)
Further, her Honour accepted the offending “…probably was an opportunistic exercise …there was no evidence of you grooming the child over the time.” (R1, G7, page 35)
However, her Honour noted there were a number of aggravating factors which made the offending “so serious as to require imprisonment” (R1, G7, page 35). These factors were:
·The relative age difference (of [redacted for publication] years) between the Applicant and the child;
·The fact that the Applicant held a position of trust and authority with respect to the child. Her honour observed:
“Offences of a sexual nature upon children by an adult within a family environment involve a very significant abuse of trust. And that is a significant aggravating factor”
·There was an element of coerciveness in the offending;
·The circumstances of the victim, who was “particularly vulnerable”, and “the degree to which she was taken advantage of and also her corruption which was contributed to by the commission of the offence”. The victim was being treated for depression prior to the offences. The Applicant took advantage of her;
·The Applicant’s denial of the offences and his plea of not guilty, his lack of display of remorse for the offences, insight into the offending or efforts to rehabilitate;
·The impact of the offending on the child.
(R1,G7, pages 35-37)
The Applicant pled not guilty to the offences. The victim was required to give evidence at the trial. Her Honour noted:
You were present throughout the trial and you gave evidence. You denied the offences. Clearly by their verdict the jury unanimously rejected your denial and accepted the child’s evidence is truthful, accurate and reliable.
(R1, G7, page 31)
The Tribunal notes that the Applicant was on bail for approximately 12 months prior to his conviction and sentencing. There is no evidence before the Tribunal that he committed any offences whilst on bail. The Applicant submitted that he did not breach any of his bail conditions during this period and has had no contact with the victim outside the Court process since 17 May 2017 (A1, paragraphs 14-15). Based on the evidence before it the Tribunal accepts these submissions.
An issue arose in submissions as to whether the Applicant’s offending could, or should, be characterised as violent (13.1.1(1)(a) of Direction no. 79). Paragraph 13.1.1(1)(a) of Direction no. 79 states the principle that violent and/or sexual crimes are to be viewed seriously. Paragraph 13.1.1(1)(b) states that crimes of a violent nature against women or children are to regarded as very serious regardless of the sentence imposed. The delegate considered that the Applicant had been convicted of three offences of sexual nature against a minor, the delegate stated:
“I consider that these can also be seen as offences of violence, as they involved the infliction of a physical experience on the victim against her will.”
(R1, G3, page 14)
The Applicant submitted that the Oxford dictionary definition of violent was:
1.Using or involving physical force intended to hurt, damage, or kill someone or something.
1.1.Law involving an unlawful exercise or exhibition of force.[2]
(A1, paragraph 57)
[2] English Oxford Living Dictionaries (2018), Oxford University Press [online] is available at dictionaries.com/definition/violent.
The Applicant noted that the Sentencing Judge found that the Applicant’s behaviour did not involve “anything forceful, you didn’t use physical force” (R1, G7, page 36; A1, paragraph 58).
The Tribunal notes that Her Honour did find that there was an element of coerciveness in the Applicant’s behaviour towards the victim in the commission of the offences (R1, G7, page 36).
The Applicant submitted that:
Non-consensual behaviour does not necessarily import violence into any action, and a reasonable Australian would not consider the indecent dealings offences and the circumstances surrounding it as “violent” in the common understanding of the word.
….
Notwithstanding the impact that indecent offences have on a victim, they should not be treated as separate and distinct from crimes of sexual violence as they do not involve infliction of a physical act which is physically harmful but is indecent. Additionally, the penalties available for these offences are different under the criminal code, which reflects the fact that sexually violent acts are generally treated as having a more significant impact on indecent acts.
These reasons, the applicant accepts that his behaviour was serious because it involves sexual, inappropriate and illegal behaviour committed against a minor, however does not accept that it can be characterised as a violent offence or that it demonstrates that he caused physical harm to his victim.
(A1, paragraph 59-62)
The Respondent did not contend that the Applicant’s offences should be classified as violent (see R2). However, the Respondent did contend that:
The fact that this offending did not involve violence within the dictionary meaning is a true distraction from the power imbalance within the family relationship and the wilful disregard which the applicant displayed in continuing to pressure the victim.
(R2, paragraph 24)
While the Respondent did not contend that the Applicant’s offences were violent, they did contend that significance should be placed on the aggravating factors involved in the offence including the vulnerability of the victim, her relationship with the Applicant and the breach of trust involved in offending against her (R2, paragraph 24).
Further, the Respondent contended that:
It is clear that the nature of the harm to individuals should the applicant reoffend is extremely serious, including physical and mental harm to some of the most vulnerable members of the Australian community, being young girls and women.
(R2, paragraph 29)
The Tribunal accepts that there may be circumstances where sexual offences involve an element of violence. Further the Tribunal accepts that where there is coercion in sexual offences the physicality of those offences may in particular circumstances be characterised as violent. However, in the Tribunal’s view this will be reflected in the offences found which will depend on the particular circumstances of the offending and the findings of a judge and jury.
In the circumstances of the Applicant’s offending the Tribunal accepts the Applicant’s submission that such offences cannot be properly characterised as violent, having regard in particular to the findings of the Sentencing Judge. However, in the Tribunal’s view the lack of violence does not necessarily diminish the seriousness of the offending and the Tribunal accepts the Respondent’s submission that all the circumstances of the offending including the aggravating factors should be taken into account in this regard.
Further, the principle expressed in the direction indicates that violent and/or sexual crimes are to be “viewed very seriously” (cl.13.1.1(1)(a) of Direction no.79). In the Tribunal’s view, in terms of the direction, offending which involves either violent or sexual is to be “viewed very seriously”. It is difficult to see how the absence of violence could result in a crimes being viewed as less than very serious having regard to cl.13.1.1(1)(a). While cl. 13.1.1(1)(b) contains a specific direction in relation to crimes of a violent nature against women and children the clause does not, in the Tribunal’s view, diminish the seriousness with which sexual crimes are to be viewed or indeed the seriousness with which crimes committed against vulnerable members of the community are to be viewed.
Having regard to these considerations, while the Applicant’s offending was not violent his offences did involve sexual crimes and are viewed very seriously on that basis (cl.13.1.1(1)(a)). Further, the Applicant’s offences were crimes committed against a vulnerable member of the community, a child who was identified in the Sentencing Judge’s comments as “particularly vulnerable” (R2, G7, page 36).
The Tribunal is in no doubt that although the offences were not violent they were none-the-less very serious, because they were sexual offences, because they were sexual offences against a child, and because of the aggravating factors relating to the commission of the offences including the particular vulnerability of the child and the position of trust the Applicant held with respect to her.
Further consideration is given below to the Respondent’s contention that there is a risk of physical harm should the Applicant reoffend.
The three serious offences for which the Applicant has been convicted occurred on a single date. The other offence for which he was convicted is more than a year earlier. The Tribunal considers that the Applicant is not a repeat offender and there is no trend of increasing seriousness in his offending. Accordingly cl.13.1.1(1)(e) and (f) of Direction no. 79 do not apply. Further, there is no evidence that the circumstances addressed in cl. 13.1.1(1)(g),(h) and (i) are applicable to the Applicant.
With respect to the sentencing of the Applicant (Direction no.79, cl. 13.1.1.1(1)(d)), the Applicant submitted that the maximum penalty for each of the offences was 10 years. The Applicant received two sentences of 12 months and one of 8 months, to be served concurrently. The Applicant further submitted that the Sentencing Judge had recognised the offences were an isolated incident and that the Applicant had lead “a blameless life” and had “a good work history” and prior to the incident was of good character. Her Honour stated that the “offending was of a low level”. However, her Honour had noted that this kind of offending ordinarily results in immediate imprisonment. (A1, paragraph 49-52).
The Respondent submitted that the fact that the Applicant’s custodial sentences were to be served concurrently does not diminish the seriousness of each count. The Respondent submitted that:
The sentencing judge imposing these sentences recognised that the Australian community required protection, in addition to embracing principles of specific and general deterrence.
(R2, paragraph 25)
The Tribunal accepts the Respondent’s submission in this regard. The fact that the Applicant was to serve his sentences concurrently does not mean each of the offences were not serious, but rather reflects the Sentencing Judge’s assessment of how the sentencing balance was to be struck in his circumstances. No doubt Her Honour’s assessment that the offending was of a low level is reflected in the overall sentence she imposed. However, the Tribunal reads Her Honour’s comments in this regard to refer to the offending within the range of offending of this type which she recognised was serious. Indeed, so serious that:
A non-custodial sentence for sexual offending against a child with whom the offender is in a family relationship and a position of trust would be very unusual.
(R1, G7, page 38)
In the Tribunal’s view, while the statutory maximum sentences provide a guide as to the seriousness with which offences are regarded, to merely have regard to the maximum penalties misrepresents the complex process of sentencing engaged in by the courts. Custodial sentences are a penalty of last resort. Notwithstanding this, as her Honour noted non-custodial sentences for this type of offending are unusual because of its serious nature. The Sentencing Judge took into account mitigating factors including the Applicant’s lack of prior convictions, supportive life and good work history and claimed mental health problems. Notwithstanding these mitigating factors the Sentencing Judge imposed custodial sentences which, while at the lower end of the scale for these offences, were not insignificant.
The Tribunal considers that the sentences imposed on the Applicant reflect that the offences were serious, albeit at the lower end for offending of this nature.
The Tribunal notes that the Applicant has now acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
Having regard to all the evidence including the circumstances of the Applicant’s conduct and offending, the Tribunal finds that the Applicant has committed sexual offences against a child with whom he had a familial relationship. The Tribunal finds that the nature of the Applicant’s offending is very serious and weighs against exercising the discretion to revoke the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 summarised the task for the Tribunal as follows:
56. … the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
57. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”
The Tribunal agrees with , and adopts this approach.
Nature of harm to individuals or the Australian community
The Applicant accepted that if he were to reoffend in a similar manner it may result in psychological damage to a victim. However, the Applicant submitted there was no evidence of physical harm being caused to the victim. The Applicant further drew attention to his lack of history of repeat offending or anti-social behaviour. The Applicant submitted that the Tribunal need not find there was no risk the Applicant would reoffend to find in favour of not cancelling his visa:
The fact of having offended in the past should therefore not automatically result in this consideration outweighing all other consideration in the Direction. If this were the case, the Direction itself would be meaningless and the process of consideration, a facade (A1, paragraph 73).
The Respondent submitted that the Applicant represented an unacceptable risk of harm to the Australian community. As noted above, the Respondent submitted that the nature of the harm to individuals should the Applicant reoffend is “extremely serious, including physical and mental harm to some of the most vulnerable members of the Australian community” (R2, paragraph29). The Respondent submitted:
The sentencing judge noted that courts have recognised that this type of offending has a destructive effect on a child’s capacity to trust others, to form relationships and upon the child’s sense of self-worth, and may adversely affect the child’s ability to achieve her full potential in education and employment.
(R2, paragraph 29; citing R1, G7, page 37)
In the Tribunal’s view, should the Applicant commit similar offences to those he has been convicted of in the past, there is a risk that a vulnerable young person may suffer serious psychological and emotional harm of the type reflected in the Sentencing Judge’s comments (R1, G7, page 37).
Based on the Applicant’s history of offending, the Tribunal finds that if the Applicant
reoffends in a manner consistent with his past offending this would likely include psychological harm to vulnerable members of the community, including children. Applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend is serious.
Risk of reoffending
The Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
no. 79).
As noted above, the Applicant submitted that there were a number of reasons why the risk to the community of the Applicant reoffending is very low and should weigh in favour of revocation:
·The offending occurred in the context of a complex family relationship. There was no evidence the Applicant presented a risk other than in matters relating to his step-children. He lived with the children for approximately 8 years before offending against the victim and there was no evidence he groomed the child. The incident was a one-off and out of character for him. (A1, paragraphs 75-80).
·The Applicant is now a Reportable Offender and is prevented from having direct or indirect contact with the victim, lessening the risk of him reoffending against her. Further, his status as a Reportable Offender lessens the risk he will reoffend against other members of the community as he will be subject to reporting conditions and public scrutiny as a result. This reduces his risk of reoffending to a “negligible level”. (A1, paragraphs 81-86)
·The Applicant has expressed remorse and recognised the impact of his offending on his victim and his family. His is conscious that further offending will cause harm to his victim and will jeopardise his family. (A1, paragraphs 87-89)
·The Applicant was not eligible for prison courses due to the length of his sentence, however, he inquired about doing voluntary programs and attended courses and programs where he could. His conduct in prison was recognised in the Parole Assessment (see below) as exemplary. He has insight into his offending and has sought treatment for mental health issues while in prison. (A1, paragraphs 93-102)
·The Applicant has strong social support. His family, friends and neighbours are aware of his offences and willing to support him to prevent recidivism. (A1, paragraphs 103-111)
·The collective impact of the effects of the offences and the Applicant’s imprisonment, particularly on his wife and child and his relationship with them.(A1, paragraphs 112-113)
The Respondent submitted that the Applicant poses a risk of recidivism due to the following factors:
·The lack of authority evidence of rehabilitation such as the completion of a sex offender treatment program or clinical psychological evidence which assesses the risk of recidivism.
·The Applicant’s lack of insight into his offending and his wife’s belief that he is innocent.
·The fact that one of the aspects of the Prisoner Review Board’s assessment about risk was based on the fact the Applicant would no longer be residing in the community but would be removed by the Department of Home Affairs. As such his recent grant of parole cannot be said to demonstrate that he does not present a risk to the community. Further, the conditions imposed on the Applicant as a registered offender cannot weigh in his favour as they are specifically imposed because he presents an ongoing risk.

Having regard to these factors the Minister contended that the nature of the offending was so serious that, applying the principles in cll.13.2.1(1) and 6.3(4) of Direction no. 79, “any likelihood that it may be repeated maybe unacceptable” (R2, paragraph 34). Accordingly, the Tribunal should conclude that the Applicant presents an unacceptable risk of harm (R2, paragraph 35).
There is limited expert evidence before the Tribunal as to the reasons for the Applicant’s offending and the risk factors associated with him reoffending. However, the Tribunal did have before it the Parole Assessment undertaken as part of the Applicant’s successful parole application in late 2018. The Parole Assessment prepared in November 2018 and was prepared based on an interview conducted in September 2018 (R3, G38, pages 278-282). The Parole Assessment indicates that the Applicant:
generally accepted responsibility for his offending behaviour, however when challenged as to why he committed the offences especially knowing the victim was suffering from depression at the time, he attempted to minimise and justify his behaviour by stating, “I was trying to make her happy”
(R3, G38, page 278)
The Parole Assessment also noted that the Applicant had:
attempted to deflect some of the blame to the victim noting her behaviour and demeanour had adversely affected his ‘depression levels of stress’; hence his behaviour was in part ‘acting out’
(R3, G38, page 278)
The Parole Assessment notes that the Applicant has been prescribed medication to address his depression and plans to continue with the medication regime indefinitely. However, the Tribunal notes at the hearing the Applicant told the Tribunal he had ceased taking the medication (Transcript, pages 15-16). The Parole Assessment also noted that the Applicant was amenable to psychological counselling and that referrals would be facilitated. The Parole Assessment noted:
Such intervention may assist him to devise better protective factors, should he again face himself in a position of trust and authority. This type of therapeutic setting may also assist [Applicant name omitted] to bring inappropriate behaviours to his cognition and instead devise more robust, prosocial means of interaction, as well as sensitively challenge any distortions
(R3, G38, page 280)
The Parole Assessment noted that the Applicant did not intend to continue to be employed as a chef. However, the Tribunal notes that at the hearing the Applicant indicated he was intending to work as a chef but was hoping to at some stage move to an apprenticeship in construction (Transcript, page 47). The Parole Assessment ‘Risk Assessment’ states:
It appears his offending behaviour was related to: poor decision-making skills; poor impulse control; poor consequential thinking skills; poor empathic reasoning skills; unidentified and unaddressed symptoms of depression at the time; and an element of opportunism. He adamantly denied any underlying attraction to children, whether they be male or female. Instead, he claimed as the step-father of the victim, he struggled to deal with issues characteristic of raising teenage children, especially with regards to discipline, female specific issues and challenging behaviours. He claimed, ‘I kept things bottled up… I don’t know how to deal with her [the victim]…’. Furthermore, [Applicant’s name omitted] adamantly denied any illicit substance or alcohol abuse, noting at the time he would typically consume “only one shot of whiskey at night to help me sleep”. Hence, until such time as [Applicant name omitted] develops better coping strategies and communication styles by way of individual psychological counselling, even with the use of anti-depressant medication, his risk of sexual recidivism cannot be mitigated.
(Emphasis added, R3, G38, page 281)
The Parole Assessment notes the Applicant was likely to comply with the requirements of the parole order. Further the Parole Assessment noted that the Applicant’s identified treatment needs could be best addressed in the community and as such supported his being granted parole.
While the Tribunal notes that the Parole Assessment indicated the Applicant’s treatment needs could be addressed in the community, the Tribunal was concerned that the Applicant’s evidence did not indicate the Applicant had a clear plan to undertake treatment to address the concerns identified. Further, as noted below the evidence that the Applicant gave at the hearing was consistent with the Parole Assessment that the Applicant has attempted to deflect responsibility for the offending onto the victim and accepted only limited responsibility for his actions. Further, the Tribunal notes that the Parole Assessment indicates that without treatment in the form psychological counselling the Applicant’s risk of sexual recidivism cannot be mitigated.
The Applicant submitted that he will not reoffend. When asked why he thought he would not reoffend if allowed to stay I Australia he stated during testimony:
Applicant: First thing, whatever happened to me is another reason that I’m not going to reoffend because of my offence, my son - I can’t see my son while I was in prison which makes me aware of that stuff and I put the community down whatever offence I did because I have a lot of respect in front of the community now by thinking in different way what I did and I put a lot of pressure on my wife because she have to look after my son and I put a lot of financial pressure on my wife which we was dealing together before which I’m really ashamed for that. I’m always thinking now. Time in prison and time in detention centre, I always think why I did this offence and always regretful and remorseful to [Stepdaughter’s name omitted], I always think what I did in past and they always come in my dreams. And another thing is my good work history. I’ve been working for a very long time in same - as a chief [chef], same industry, and now if I go out and I probably join the cricket club so it keep me busy and keep my mind somewhere else and I always go to temple which I not used to go to temple. In my culture we used to go to a lot of temple. Now, I’m going to join that. And my time in prison, another thing, time in prison, I always think of what the triggers, why this thing happened with me, now I realise that these are some cause behind it of my offence and now I realise it, I can’t control my emotion, how this stuff is triggered, because I was - at that time I was in a depression. I was dealing this stuff by myself. I was - I didn’t take any help from my friends and I didn’t talk with a professional which is - was the main cause but now I’m taking counselling and - from doctors and seeking any help from my family whenever I feel like down so that’s the big reason I’m not going to reoffend again I know that if - in case I reoffend again I know that I’m going to lose my son and everything in Australia so that makes me really scared of doing that type of stuff now. That’s - especially I know the triggers now, what’s like, - mean depression, financial, and a real like strategy in prison, like how to control my emotions now. Like, whenever I feel stupid situation when I can’t control my emotion, I know how to deal it and how to walk out from the situation and talk with my friends/families when I feel down, yep.
(Transcript, pages 14-15.)
In the information accompanying his Parole Plan Application, dated 6 September 2018, the Applicant stated:
The biggest impact my offending is on a victim who is my stepdaughter. My actions have caused me significant shame and regret my behaviour immensely, this was the biggest mistake of my life and has had significant impact on not only the life of my victim, but also my wife, son and loved ones. I understand the victims of these types of crimes are left with emotional scars that often affect them for life. For this I am deeply ashamed and remorseful for my actions.
(A5; see also A6)
The Applicant provided a large number of supportive third-party statements from friends and family. A number of these spoke to the Applicant’s regret and his commitment to rehabilitation.[3] The Tribunal places weight on these statements as evidence of family and community support for the Applicant in Australia. Such support would provide a protective factor for the Applicant against reoffending. However, the Respondent submitted that a key protective factor would be expected to be the Applicant’s spouse and as there was evidence that she did not accept the Applicant was guilty of the offences she may not provide necessary support against the Applicant reoffending. As the Applicant’s wife’s current attitude to his offending was unable to be explored at the hearing the Tribunal places limited weight on her potential role as a protective factor for the Applicant.
[3] See statements in various Exhibits (including Exhibits A1 Annexures, A8, A10, A11, and A12) that due to confidentiality reasons they are not separately identified.
There is no evidence before the Tribunal that the Applicant has undertaken any treatment related to sex-offending or directed towards identifying and treating the causes of his offending. The Tribunal notes that the Parole Assessment recognised that the Applicant had not had an opportunity to engage in “programmatic intervention whilst in a custodial setting”. However, the Applicant claimed to have undertaken counselling while in prison:
Ms Graziotti: Have you ever had counselling?
Applicant: Yes, um, first in [redacted for publication] Prison - no, in [redacted for publication] when I was feeling really down. I was going into a really bad depression. First, I think I seek the counselling when I was on bail actually, I went to doctor and I was feeling really weak that time and I went to the doctor and they took my blood test and it was all right but then I told to doctor about my case and doctor recognise that, “You are going through a depression” and - but he did recommend me that time any medication and then when I got sentenced and went to a prison and in [redacted for publication] I was feeling really depressed because I can’t see my son and it affect my really badly and I was thinking of offence what I did, I put myself ashamed in front of community and doctor put me first for 25 mg paroxetine and Valium. For two/three weeks I was going really bad and down and then, ah, I went to a doctor again, I told about my situation, I’m feeling really down, they did my medication down for 10-15 mg paroxetine and then I had a counselling with a nurse and after that I have few times counselling with a doctor and I had a counselling with counsellor also to talk about all that stuff, offending and how I was going to - and then I went to [redacted for publication] Prison, where I did again nurse – counselling with mental health nurse and with the doctors a few times and then I came to a detention centre where I did again, mental health nurse and then I think in January, because I was seeing my son, I was feeling very happy, different environment, I stopped the medication over there. I was feeling all right. But after that, I think, when my son gone, I was still seeking help whenever I feeling down I’m taking any recommendation what I have to do, ask for a medication if I need it, but they put me – they said, “You don’t need medication, it’s okay how you’re dealing. But when you feel down, just come and see us and have a counselling”.
(Transcript, pages 15-16)
The material before the Tribunal included a request form dated 3 March 2019 filed at Yongah Hill Immigration Detention Centre from the Applicant requesting to see a psychiatrist. There was no evidence as to whether this request was fulfilled. The evidence included a ‘Health Induction Assessment’ from International Health and Medical Services (IHMS) which records that the Applicant had a prescription for depression medication from 5 December 2018 to 2 February 2018. It appears from the documents that that ‘Health Induction Assessment’ was prepared on 6 December 2018 by a General Practitioner. The assessment also notes the Applicant was ‘”currently situationally disturbed” and “experiencing reactive depression” (A1, Annexures G). There are no further details contained in the assessment. There is a further medical record in the form of a ‘Discharge Letter’ (A1, Annexure C) which indicates the referred by a Clinical Nurse Manager in November 2011 (while in prison) for “grief reaction” and was “Still Due Dr Review of Problem/Sx-Mood”. The Tribunal finds on this evidence the Applicant was receiving medical treatment for mood and depression related issues and was taking medication while in prison however the details of treatment and diagnosis are unclear on the evidence.
The Applicant also claimed to put his names down for courses whilst in [redacted for publication] prisons and to have written letters to psychologists whilst in prison seeking to do a sex offender course upon his release. (A6, paragraphs 26-27, 29; Transcript, page 44, 50-51). However, there is no other evidence of these letters or any evidence of treatment having been arranged or planed for the Applicant’s release.
The Applicant provided evidence that he had engaged with the ReSet Program, a voluntary program which provides case management, counselling and group work to men and women six months pre- and up to 12 months post-release from prison. The program “focused on providing a service that will facilitate positive re-entry into the community with the overall aim of reducing reoffending.” The letter from the ReSet caseworker, dated

23 October 2018, which was provided to the Tribunal indicates that the Applicant was referred to the ReSet program in September 2018 and engaged with the program on

in October 2018. However, the letter indicates that the Applicant stated that he had requested referral to the service for assisting in sourcing accommodations options for his release however “he was satisfied he no longer needed the support”. The letter notes that the Applicant is welcome to access the support program to assist in reintegration back to the community if necessary ( A1, Annexure B).
Based on the letter provided from ReSet it does not appear that the Applicant engaged with the ReSet program for any counselling or other services related to reintegration or directed towards reducing reoffending. Accordingly, the Tribunal does not play significant weight on his engagement with ReSet as a factor in reducing his risk of reoffending. Further, while the Tribunal notes the Applicant’s evidence of his attempts to organise treatment after his release there was no evidence as to whether plans for treatment had been made.
The Tribunal notes that there is no expert evidence before it regarding the degree to which the Applicant has rehabilitated or is capable of rehabilitation and no expert assessment of his risk of recidivism such as psychological or psychiatric evidence or assessments. There is no psychiatric evidence before the Tribunal on which to base an assessment of the Applicant’s current attitude towards his offending. This makes assessment of the risk of reoffending difficult.
The Tribunal accepts on the evidence before it that the Applicant has not had contact with the victim since the offending occurred and has no plan to be in contact with the victim (R1, G10, page 51). The Tribunal notes that on the evidence before it the victim is living in [redacted for publication] with her father. The Applicant testified that his wife has had some contact with her daughter during the period since the offences occurred but he was unable to provide details of the contact (Transcript, pages 32-33). While, the Tribunal accepts that the Applicant does not intend to have contact with the victim the Tribunal notes that the victim is his wife’s daughter and should his wife have contact in the future contact may not be able to be avoided. This may be more likely if, as evidence before the Tribunal suggests, his wife maintains a belief that the Applicant was not guilty of the offences (R3, G38, page 287). In such circumstances, as submitted by the Respondent, she may not engage in protective behaviours with respect to the victim or other minors and may not encourage the Applicant to engage in rehabilitation programs.
Notwithstanding this, on the evidence before the Tribunal it has formed the view that there was a low risk of the Applicant reoffending against the victim particularly given the different circumstances in which both the victim and the Applicant now find themselves concluding that the Applicant is no longer in a position of trust regarding the victim.
However, as there is little expert evidence before the Tribunal as to the reasons why the Applicant offended against the victim, it is difficult for the Tribunal to be satisfied that the risk only arises in relation to the Applicant’s stepchildren. The Applicant offended against a minor in relation to whom he was in a position of authority and trust. In the Tribunal’s view, having regard to those circumstances and absent any evidence of rehabilitation or treatment which has been independently managed or tested in the community, there remains a risk that the Applicant may similarly offend against other minors should the opportunity present itself.
The Applicant submitted that the risk must be higher than one which cannot be ruled out. The Tribunal accepts that the risk must be considered with the nature of the harm which may be caused should the Applicant reoffend. However, in the Tribunal’s view, the harm which may be caused by such reoffending is very serious. In this regard, the Tribunal has considered the emphasis that the direction places on the seriousness of sexual offences and offences against vulnerable members of the community, the fact that sexual offences against minors are a separate ground for cancellation and the wide reaching impacts of such offending are summarised by Her Honour in the sentencing remarks mentioned above.
The Tribunal accepts that the Applicant has expressed remorse for his past offending. However, the Tribunal was concerned that when the Applicant was asked at the hearing about than circumstances of the offences he gave a very different account of those circumstances than the material facts which were found by the Sentencing Judge. The Tribunal put to the Applicant at hearing that this gave rise to a concern that while he expressed regret for the offences he did not acknowledge the context of his behaviour or recognise significant elements of those offences in particular the sexualised dialogue engaged in with the child whilst inappropriately touching her (Transcript, page 46). This may call into question the Applicant’s understanding of his offending and his responsibility for the consequences of his actions.
The Applicant submitted that these contextual elements were not strictly expressed as part of the offences. However, it is clear from the Sentencing Judge’s findings of material fact that they were accepted by the jury and were material to the ‘indecent dealing’ offences. It is difficult for the Tribunal to be find that there is no appreciable risk the Applicant would not engage in similar behaviour where he has not fully acknowledged his behaviour, particularly in the absence of any expert assessment of his insight into his offending. Based on the evidence before it the Applicant’s evidence before the Tribunal displayed a lack of insight into his offending which, in the Tribunal’s view, contributes to a concern as to the likelihood of reoffending. Further, the Applicant stated repeatedly that he offended because he was unable to control his emotions. However, when the Tribunal asked him what he meant by this he was unable to articulate what he meant or how being unable to control his emotions caused him to offend. The Tribunal was concerned that the Applicant’s inability to articulate what claimed was the reason for his offending also indicated a lack of insight into his offending.

The Tribunal accepts that, as is the case in Australia, the Applicant may face some societal discrimination on the basis of his convictions. While the Applicant did not provide any independent evidence to support these claims, giving him the benefit of the doubt and having regard to the seriousness with which the offences are regarded in Australia the Tribunal is prepared to accept that those offences would face a similar social sanction in India. This may include employers requesting evidence of his criminal convictions and may result in him having employment opportunities limited in a way which would not have occurred had he not engaged in sexual offences against a minor. However, the Tribunal notes that this is also a difficulty that the Applicant would face in Australia as a Reportable Offender.
The Tribunal has considered the evidence provided by the Applicant in support of his claim to fear serious or significant harm on return to India because of his membership of a particular social group as a Reportable Offender or for any other reason. The Tribunal finds the Applicant’s claims were vague and general in their terms. There was little evidence provided to establish that the Applicant has a genuine fear of harm on return to India or that if the Applicant has such a such a fear it was well-founded. The evidence does not establish that there is a real chance that the Applicant will be persecuted for a convention related reason on his return to India or that he is owed complementary protection by Australia for any other reason such as may give rise to a non-refoulement obligation.
The Tribunal notes that the Applicant recognised that it was open to him to put in evidence to support his claims that a non-refoulement obligation arose with respect to his return to India as a result of a decision not to revoke his visa cancellation. The only evidence before the Tribunal was the DFAT report (Exhibit R4) which did not contain information directly relevant to the Applicant’s claims and the oral and written evidence given by the witnesses. As noted above, the Tribunal found their evidence in this regard to be in very general terms.
The Tribunal notes, and the Applicant accepted, that it is open to the Applicant to make a protection visa application and if he chooses to do so to provide further evidence which may satisfy a different decision-maker that a protection obligation is owed to him. In the event that such a determination is made on evidence not currently available to the Tribunal it is possible that a non-refoulement obligation may arise. However, the Tribunal is not satisfied that there is sufficient evidence to make such finding on this application.
On the basis of the evidence before it the Tribunal is not satisfied that an issue of non-refoulement obligations arises with respect to the Applicant’s return to India and the Tribunal places no weight on this consideration.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the Principles section of Direction no. 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Applicant is now 32 years of age, having arrived in Australia when he was
21 years of age. The Tribunal finds that he arrived as a young adult and has spent more than 10 years in Australia (paragraph 14.2(1)(a) of Direction No. 79). His offending occurred a significant time after arriving in Australia (paragraph 14.2(1)(a)(i) of Direction no.79) and as the Sentencing Judge noted, apart from the serious offences for which he was convicted in 2018 he has lead a “blameless life” while in Australia.
The Applicant submitted that he has spent his time in Australia contributing positively to the Australian community by being employed.
There was strong third party support in the form of 16 character references from family, friends and employers for his contribution to his social network and community through work and social interactions (paragraph 14.2(1)(a)(i) of Direction no. 79). His references speak to his commitment to his family and the fact that the offences were generally considered to be out of character (See for example the statements in A1, Annexure A). The Tribunal finds he made a positive contribution to the community in Australia through work and social interactions.
The Tribunal accepts the Applicant is in a longstanding relationship with his wife, who is an Australian citizen, and has one child and two step-children who are Australian citizens. The Tribunal notes he is prevented from having contact with one of those step-children, the victim, and is estranged from both.
The Applicant submitted non-revocation would result in the Applicant’s son being cared for in India and separated from his wife which would cause emotional and psychological suffering to both the Applicant’s wife and his son. In particular this would result in the Applicant’s son not only losing his relationship with his mother but the benefits afforded to him as a citizen growing up in Australia. This includes a lack of access to the educational and health systems enjoyed by Australians (A1, Paragraphs 150-154).
The Tribunal finds that the Applicant has ties to the Australian community. He has a strong connection to Australia through his wife and Australian citizen child and whilst it appears on the evidence that he may be currently estranged from his wife the Tribunal accepts that non-revocation would have a significant impact on her and her son regardless of whether the child leaves with the Applicant to live in India, remains in Australia to be cared for by his mother, travels with his mother to live in India with both parents, or some combination of these arrangements. The Tribunal accepts that the Applicant’s wife has suffered financial stress as a result of the Applicant being in prison and in detention and that these financial pressures may continue if the Applicant is removed.
The Respondent accepted that the Applicant’s removal from Australia would be a difficult for the Applicant’s wife emotionally, financially and practically. The Respondent also accepted that his friends in Australia who provided statements in support may suffer some emotional impact of his forced departure (R2, paragraph 40).
The Tribunal places weight on the fact that the Applicant has been in Australia for an extended period of time and has personal and professional ties to Australia. The Tribunal places particular weight on the impact of revocation on his Australian citizen son and his wife. This weighs in favour of the revocation of the Reviewable Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction no. 79 provides for the consideration of the:
(1) impact on Australian business interests of the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight when non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant accepted that there was no evidence that non-revocation would significantly compromise the delivery of a major project or the delivery of important services in Australia. However, the Applicant contended that non-revocation would impact on Australian businesses due to the general benefit at a full-time employed person would bring to the economy and the Applicant’s strong employment history in Australia in a high demand occupation (Chef) (A1, paragraphs 155-156)[16].
[16] The Applicant cited that The Australian Trade and Investment Commission reported in ‘Australian Tourism Labour Force Report: 2015 – 2020’ that “cleaners, chefs and cooks were the three occupations with the most commonly reported deficiencies- Deloitte (2015), Australian Trade Commission, Austrade, October 2015.
While the Tribunal acknowledges the fact that the Applicant has been employed in Australia for the duration of his time here and on the evidence of his previous employee is a valued employee, there is no evidence that his removal will have a significant impact on Australian business interests. Accordingly, the Tribunal places limited weight on this consideration.
Impact on victims
The Tribunal does not have any direct evidence of the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victim of his offending or the family members of the victim (paragraph 14.4(1) of Direction no. 79). The Tribunal notes there was also no victim impact statement available from the victim at the time of sentencing, however the Sentencing Judge made observations about the impact of the offending on the victim based on her evidence. The judge noted that the generally recognised destructive effect that offending of this type has on the victim (R1, G7, page 37). Her honour also noted that the effects on the child were compounded by the response of the child’s mother who did not believe her (R1, G7, page 37).
On the evidence available it is established that the victim left the family home as a result of the offending and eventually moved to live with her father interstate. From the Applicant’s testimony it appears that the victim had limited contact with her mother since the incident and generally by phone. The Applicant testified that his wife had made a trip interstate to where the child lives to visit her but he was not able to say when this occurred but thought that it was before the trial (Transcript, page 33). The Tribunal finds based on the nature of the offending, the Sentencing Judge' comments and the evidence before it including the contact restrictions which have been placed on the Applicant with regard to the victim that contact between the Applicant and the victim would likely have a negative impact on the victim.
The Applicant contended that the Applicant’s parole order required that the Applicant have no direct contact with the victim. The Tribunal also notes the Applicant’s evidence that he does not intend to have any contact with the victim and that the Applicant is the subject of Reportable Offender obligations.
In the Tribunal’s views while contact remains unlikely it must be recognised that contact is more likely if the cancellation is revoked. This is particularly so given the familial relationship between the Applicant and the victim which increases the likelihood of contact, even inadvertent contact, through the victim’s mother. Accordingly, the Tribunal finds that revocation would have a potentially negative impact on the victim.
The Tribunal also notes that it has no current evidence from the Applicant’s wife as to the impact revocation would have on her as the victim’s mother or on the Applicant’s child as the victim’s sister. The Tribunal notes that the Applicant’s offending appears to have caused a significant breakdown in the relationship between the victim and her mother. However, it is unclear, what if any impact revocation would have on that relationship, the mother’s current views are unknown.
There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community of which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa. Although the Tribunal acknowledges the potential negative impact of revocation on the victim given the limited evidence, the Tribunal places little weight on this consideration.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
As noted above, the Applicant raised concerns regarding his return to India both in the context of potential non-refoulement obligations and in the context of impediments if he is removed to India.
The Tribunal notes that the Applicant attended school through tertiary education in India and his parents continue to live in India. As the Applicant grew up in India and was educated there, the Tribunal considers that he is unlikely to face substantial language or cultural barriers upon returning to India
Of the circumstances facing the Applicant in India he contended:
- He may face difficulties due to a lack of social support given his offences and the length of time he has been absent from India.
- He has no work experience in his current field as a chef or in any other field in India.
- He will face challenges obtaining employment in India because of his offences and this may impact his ability to establish himself and maintaining basic living standards if returned to India.
- He is concerned that separation from his wife and potentially his son and his supportive social network will cause worsening of his depressive symptoms.
- His wife is unfamiliar with Indian culture, lifestyle, food and language and would face significant cultural and linguistic challenges if she were to move with the Applicant.
(A1, paragraphs 160-167; A2, paragraph 48)
The Respondent submitted that the Applicant had lived in India for the majority of his life and was educated there and had an extensive family network there. The Respondent contended that the Applicant was of working age with no health complaints and that he would not face any difficulty in establishing himself in India and maintaining basic living standards there in the context of what is generally available to other citizens of that country.
It is clear that Direction no. 79 refers to the context of services available to citizens generally in the country to which the person is being returned. While this would not preclude the Tribunal from having regard to particular impediments the Applicant may face in that context, it does, in the Tribunal’s view mean that the lack of equivalent social welfare or other services in a country will not of itself amount to an impediment if removed.
The Applicant would not face any language barriers if he were to return to India. While the Tribunal accepts he has spent significant time in Australia and is accustomed to the environment in this country, the Tribunal notes he grew up in India and attended university there and has visited India as an adult several times.
There is evidence before the Tribunal that the Applicant suffers from depression for which he has previously been prescribed medication but which he is no longer taking. The Applicant says this is based on medical advice that he no longer needs it. The Tribunal accepts he may continue to suffer depression when faced with particular stressors, though there is limited medical evidence as to what factors may contribute to the Applicant’s depression. There is no evidence the Applicant would be unable to access anti-depressant medication and medical and counselling services in India, such as those services accessed by this son recently (A1, Annexure N). The Tribunal accepts that his removal from Australia will separate him from the social network he has formed here and on which he seeks to rely on when released. Removal from this network will make his social reintegration more difficult and will likely cause him stress.
As discussed above, the Applicant raised a concern that he will face social ostracisation and discrimination, particularly in employment in India, due to his status as a Reportable Offender. The witnesses all testified as to their belief the Applicant would suffer social stigma in India if people became aware of his offences. The Applicant testified to his belief he will be required to produce police certificates in order to gain employment in India, particularly in the types of restaurants he is trained to work in (Transcript, pages 23-24). Other than the Applicant’s testimony there is no evidence to support this claim and in the Tribunal’s view it seems improbable that all employers in Indian restaurants, and even in all Indian restaurants serving [redacted for publication], would require foreign police certificates for their prospective employees. However, the Tribunal accepts that there is likely to be a social stigma attached to a history of sex offending against minors in India, as is the case in Australia, and that the Applicant may face some discrimination in social interaction and employment as a result. However, the Tribunal regards that such circumstances may also arise in Australia where the Applicant will be formally identified as a Reportable Offender. Further, as noted above, there is no evidence before the Tribunal to support a claim that the Applicant would suffer significant harm, and in particular physical harm, as a result of the stigma attached to his offending.
Having regard to the evidence, the Tribunal finds that Applicant would suffer some hardship including social stigma and potential employment discrimination as a result of the stigma attached to his offences if he were returned to the India. The Applicant may also suffer stresses which may worsen his depression, or cause it to resurface. The reluctance of his wife to relocate to India may also make it more difficult for the Applicant to resettle there and to maintain a relationship with his family. This would also deny him the support which might otherwise be provided to him by his wife and child. This factor weighs in favour of the revocation of the decision to cancel the visa.
WEIGHING THE PRIMARY AND OTHER CONSIDERATIONS
Direction no. 79 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.

The treatment of primary and other considerations has been subject to judicial consideration.[17]
[17] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (HSKJ).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the weighing exercise as considered by the Courts as follows:
The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.[18]
[18] Although Senior Member Evans was considering Direction no.65 the relevant provisions were materially the same as those under Direction no. 79 and her comments remain applicable under the later direction.
The Tribunal agrees with this statement of the principles to be applied in the weighing exercise and has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant’s circumstances, including his offending history and personal circumstances. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has found that the nature of the Applicant’s offending, involving sex offences against a minor with respect to whom he held a close position of trust and with whom he had a familial relationship was very serious. The Tribunal has had regard to the Applicant’s current demonstration of remorse and his stated commitment to rehabilitation and his apparent lack of insight into his offending. However, the Tribunal has also had regard to the lack of professional treatment undertaken by the Applicant to identify the causes of his offending and reduce the risk of recidivism. Further, the Tribunal has considered the serious harm which may be caused to vulnerable members of the community, children, should he reoffend. Considering these factors, the Tribunal has found that the protection of the Australian community weighs against revocation.
The Tribunal has also found that due to the serious nature of the Applicant’s offences, as sex crimes against a minor, the expectations of the Australian community weigh in favour of the Tribunal refusing to revoke the cancellation of the visa (that is, affirming the Reviewable Decision). Having regard to all the considerations and circumstances the Tribunal regards that while this consideration weighs against revocation as the offences, while serious, were at the lower end of offending of this type, this consideration weighs less strongly than may be the case in more serious instances of sexual offending against minors.
The Tribunal has considered carefully the best interests of the Applicant’s minor child. The Tribunal accepts that it is in the best interests of the child that the cancellation be revoked. The Applicant’s child has been placed in a precarious position by his offending and, like his sister, it appears on the evidence that his relationship with his mother has suffered as a result. The Tribunal has had difficulty determining what the likely outcomes will be for the child if his father is removed to India as his mother has disengaged from the process and from the Applicant and the child. The Tribunal has accepted that this means that a likely outcome of non-revocation is the child may have little option other than to move with his father to India and that it may be necessary for him to do so without his mother. However, the Tribunal notes he has lived in India for several months and he has family in India who can assist the Applicant in supporting and caring for him. Having regard to all the circumstances and given the Tribunal’s findings on the risk that the Applicant will reoffend in a manner that places the children at risk of harm, the Tribunal places less weight on this primary consideration than the others mentioned above.
The Tribunal also had regard to the impact revocation would have on the victim of the Applicant’s crime. However, as there was no evidence from the victim or anyone in close contact with her on the impact such a decision would have on her the Tribunal placed little weight on this consideration. The Tribunal also placed little weight on the impact of non-revocation on Australian business interests.
The Tribunal has had regard to the relevant other considerations, including the strength, nature and duration of the Applicant’s ties to Australia and the challenges the Applicant would face if he was returned to India which present impediments to his removal, which weigh in the Applicant’s favour. The Tribunal also considered whether non-revocation would engage Australia’s non-refoulement obligations. However, the Tribunal was not satisfied that there was sufficient evidence to support the Applicant’s claim that non-refoulement obligations arise due to a well-founded fear he may face serious or significant harm in India as a reportable sex offender. The Tribunal placed no weight on this consideration.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Respondent’s delegate dated

15 March 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 240 (two hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Member
S Burford

............................[sgd].........................................
Associate
Dated: 7 June 2019

Date of hearing:
23 May 2019

Counsel for the Applicant:

Ms Alice Graziotti

Solicitors for the Applicant:

Counsel for the Respondent:

Estrin Saul Lawyers

Ms Melinda Jackson

Solicitors for the Respondent:

Australian Government Solicitor

[2019] AATA 4055

7 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	23 May 2019
Counsel for the Applicant:	Ms Alice Graziotti
Solicitors for the Applicant: Counsel for the Respondent:	Estrin Saul Lawyers Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor