MBPQ and Minister for Home Affairs (Migration)

MBPQ and Minister for Home Affairs (Migration) [2019] AATA 4681 (12 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5251
Re:MBPQ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth

Date:12 November 2019
Place:Melbourne

The decision under review is affirmed.
...................[sgd].....................................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – guilty of sexually based offence involving a child – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – strength, nature and duration of ties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
12 November 2019
INTRODUCTION

This matter relates to an application for review filed by MBPQ (“the Applicant”) on
26 August 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 15 August 2019, and received on 20 August 2019, not to revoke the mandatory cancellation of his visa.
At the hearing before the Tribunal, the Applicant appeared in person unrepresented. The Respondent was represented by Mr David Brown, Australian Government Solicitor.
BACKGROUND
The Applicant was born Scotland in 1952 and is a 67-year-old citizen of the United Kingdom.
The Applicant, along with his parents and eight siblings, immigrated to Australia between 1965 and 1968; the Applicant arriving in January 1966 when aged 13 years. The Applicant was educated, gainfully employed, married and had two daughters. They are now adults, and one daughter now has a daughter and son of her own. The Applicant had no prior criminal offender history and otherwise lived an unremarkable life.
In the Christmas holiday period of December 2010, the Applicant was babysitting his granddaughter, EO, who was then aged eight, as her parents were working. On the night in question, the Applicant put EO to bed and later returned to the bedroom at around midnight to remove an iPad that she had been using earlier. Under the belief EO was asleep, the Applicant knelt by the bed and started to touch, rub and penetrate her vagina with his finger. This conduct stopped when the Applicant feared his granddaughter was waking.
EO disclosed the Applicant’s conduct to her mother shortly after, however it was not until four years later that she had the confidence or ability to provide video/audio recorded evidence to police.
In January 2015, the police attended the Applicant’s house. The Applicant was cooperative, made admissions to the conduct, and was frank about his sexual feelings in relation to female children.
In May 2015, the Applicant was convicted and sentenced on one count of Incest – By Lineal Ancestor to four years and three months imprisonment, with a non-parole period of two years and three months, and his name to be placed on the Sex Offenders Register for 15 years upon release.
On 28 February 2017, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (“the Act”) on the grounds that he did not pass the character test because he had been convicted of a sexually based offence involving a child and was serving a term of imprisonment on a full-time basis.
The Applicant was invited to make representations and did so within the period and in a manner set out in the regulations.
On 15 August 2019, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation.
On 26 August 2019, the Applicant applied to this Tribunal for a review of that decision.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that 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.
Relevantly, s 501(6)(e) of the Act states:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant does not dispute that he does not pass the character test as he has been convicted of a sexually based offence involving a child. Consequently, the Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
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.
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of Principles that should inform the decision-maker. They are as follows:
(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 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.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.
Paragraph 8 of the Direction 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 …
(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.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list at paragraph 14(1) of the Direction. These considerations are (but 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; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(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 non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(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 … 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 is in immigration detention … is serious …
The Applicant’s Evidence
The Applicant arrived in Australia from Scotland in January 1966 with the majority of his family. He was then aged 13 years. Other siblings arrived soon after. The whole of his family, namely his parents, two sisters, and six brothers, thereafter resided in Australia. The Applicant’s siblings became Australian citizens, however he did not. The Applicant has now resided in Australia for approximately 53 years. He has never returned to Scotland. He regards himself as an Australian.
The Applicant is the youngest member of his siblings. The Applicant has a number of nieces and nephews residing in Australia, some of whom have young children.
The Applicant has never returned to Scotland and although he has relatives, such as cousins, still living in the United Kingdom, he has never maintained contact with them. He has no friends there.
The Applicant was married in 1978 and there were two daughters of the marriage, namely BO and AO. The marriage ended in 1988 and after a period of access to his daughters, there was no contact between the Applicant and his daughters for approximately 16 years. BO and AO remained in contact with one of the Applicant’s brothers, ND, and his wife, HD, and, in about 2005, HD assisted in the Applicant re-establishing contact with his daughters.
The Applicant and his daughters thereafter maintained contact and the Applicant described his relationship with them both as very close. AO gave birth to the Applicant’s granddaughter, EO, in 2002, and to his grandson, WO, in about 2008. Up to the date of the offence, the Applicant remained in close contact with his daughters and grandchildren. He enjoyed a good relationship with his granddaughter.
The Applicant’s daughter, BO, came to live with him in the latter part of 2010. In the period leading up to each Christmas, EO would reside with the Applicant and so, in 2010 when EO was on school holidays and in the week before for Christmas, the Applicant had the care of her from Tuesday to Friday, the latter being Christmas Eve. AO and her partner were working.
The Applicant said that, by this time, his health had deteriorated. He was suffering from severe diabetes which was affecting his body, and in particular affecting his libido. He was impotent, confused and did not seek medical treatment.
The Applicant said that his attraction to young children stemmed from his childhood, following incidences of sex play with other children, and therefore he regarded his behaviour as conditioned. This sex play in particular occurred from the age of about five years with a girl who was one year older than him. He was aware in his later teenage years that he was attracted to female children, but had always managed to deal with that attraction and not act upon that sexual impulse. He said that he would fantasise about female children, which he found sexually stimulating.
The Applicant enjoyed a number of adult relationships following the breakdown of his marriage, but none have lasted. Hence, confused and being impotent, about two weeks prior to EO’s arrival, he formulated a plan to commit the offence. The object of his plan was to achieve an erection. He intended to engage in the sexual act when his granddaughter would be asleep so that she would have no knowledge of it.
On the night of the offence, BO was at work and the Applicant was alone with his granddaughter. The Learned Sentencing Judge in his sentencing remarks described the events of that night as follows:[1]
Very briefly and simply, on an occasion when your granddaughter was on school holidays and her parents were working, she came to stay with you at your home. You and she were alone on the night in question in your house. Your duty was to look after her. You put her to bed and later returned to the room sometime around midnight it would appear. It is not suggested that you were going into the room to sexually assault her. You removed an iPad that she had been using prior to going to sleep. You thought she was asleep. You then knelt by the bed, put your hand under the doona, then under her pyjamas and started to touch and rub her vagina. She had been asleep. As you touched her she woke, but she did not let on that fact. You penetrated her vaginally with your finger. In fact she was too frightened to say anything as the conduct continued. She moved and shifted around in the bed pretending to be asleep but hoping by those movements to evade your touch but your hand kept following her in the bed.
It would appear that after a time, you feared she was waking, desisted and left the room. Your victim came to your room a short time later saying she wanted to ring her mother. You refused that request …
[1] Exhibit A, G Documents, pages 13 – 14.

The Learned Sentencing Judge said that EO disclosed the conduct to her mother early in the following year. EO feared she would get into trouble. She was taken to the police but did not have the confidence or ability to make video/audio recorded evidence, however that changed approximately four years later. His Honour described the offending as serious and noted that, when police came to speak to the Applicant in January 2015, he was extremely frank about his conduct and his sexual feelings in relation to children.
The Applicant has not had any contact with AO or EO since Christmas Eve 2010. BO continued to live with him until about August 2011, but when she was advised of the sexual offence she ceased ties with the Applicant.
The Applicant was an honest witness. He acknowledged the wrongfulness of his conduct and that it was a serious offence. He did not seek to trivialise in any respect his misconduct. He volunteered, in evidence, that he planned this offence, which he acknowledged was wholly inappropriate. He said at the time he was confused, impotent and was not thinking clearly.
The Applicant said that, following the cessation of contact with AO and EO, he knew that his granddaughter had told her mother about the sexual offending and from that time he expected, and was waiting for, the police to come and speak to him. He made full and frank admissions because he did not want AO and EO to be required to give evidence at a trial.
The Applicant has not made an attempt to renew contact with his daughters or granddaughter, but hopes that one day that may occur. However, given the passage of time and that his grandchildren are now aged approximately 17 and 11 years, he accepts that is very unlikely.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(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).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct would be significant. The Learned Sentencing Judge described the nature of the harm to be very serious such that “there is just no doubt that the impact of this crime will be significant and will be felt for very many years to come.”
In sentencing the Applicant, the Learned Sentencing Judge had regard to the expert reports of Ms Lechner and Ms Gabriel-Brennagh. The Learned Sentencing Judge said in respect of those reports:
I take into account the reports of Ms Gabriel–Brennagh and Ms Lechner. The two reports are very useful and this is because of your open attitude. You have been disarmingly frank and honest with the experts and the police in a way that is quite rare for the court to see. So many in your position deny any attraction to children and seek to somehow deny the obvious sexual urge or interest that lies at the foundation of the crime before the court. You do not. You speak openly of your attractions to children and your attempts to deal with that over the course of your life.
… Ms Lechner says you are diagnosed as having a paedophilia disorder. Given your frankness, your engagement in treatment and a level of insight and empathy that you do possess, she believes that you have favourable prospects of rehabilitation and a low/moderate risk of reoffending in this way again. The prognosis is quite favourable she says and one of the reasons for that is your preparedness to admit, to be honest and to engage with treatment. You are recognising some of the triggers.
The Learned Sentencing Judge said of the Applicant that he had reached a point already, which many may never reach. He did not find that the Applicant’s conduct was mere window dressing for the court. He noted, however, that treatment would be interrupted by the sentence of imprisonment he was to pronounce. He said “Your efforts to date are far more than a start, but you are a very long way from the end of the journey. You will need to maintain your attitude in the years ahead to maximise your chances and to minimise the risks that you otherwise pose.”
The observations of the Learned Sentencing Judge about the frankness and honesty of the Applicant accord with the findings of the Tribunal. There is much that can be said that goes to the credit in the way the Applicant conducted himself before the Tribunal.
The Applicant, whilst in custody, participated in the Better Lives Program (“BLP”) between August 2017 and February 2018. The BLP is a group-based intervention program designed to target sexual offending behaviour. In a letter dated 22 February 2018 from psychologist Joseph Mollica,[2] he reports that the program was:
“… individualised to target your specific treatment needs. The program aimed to offer you practical ways of understanding offending and taking responsibility for your behaviour, including generating and practicing strategies through which you can better manage yourself, helping you to achieve goals in pro-social ways, strengthening your abilities and decision-making, and helping you to maintain a more fulfilled, offence-free life … I commend you on your development of a healthy lifestyle plan …”
[2][2] Ibid, page 53.
The BLP provided the Applicant strategies to deal with his sexual attraction to children. The Applicant was asked in cross-examination about those strategies. He had difficulty detailing them. He said he was struggling to remember but was given the opportunity of the luncheon adjournment to gather his thoughts. After the luncheon adjournment, he was then able to explain in detail each of the strategies that he had learnt.
The Applicant said those strategies included fantasy management, which assisted him to stop fantasising about young children. Consequently, he has not had any such fantasy in about two years. He was able to give detailed information about each strategy and what he had done to mitigate any continuing risk of re-offending. He says that he can now critically look at his emotions that drove the fantasy from an outside perspective. He has also learnt why he has not maintained romantic relationships with adult women, albeit he has a lot of female friends. The BLP has given him self-awareness and goals in associating with others in the future.
Counsel for the Respondent in cross-examination raised with the Applicant criticism that these strategies were not “front and centre” in his mind given that he could not detail them immediately when asked. The Applicant responded that he had been concentrating on his current application before the Tribunal. He also explained that he destroyed the sensitive documents created during the BLP because he was unsure that the material would remain safe and secure in detention, but he has since made a Freedom of Information (“FOI”) application for that material to be produced both for his personal retention and for the proceedings before the Tribunal. That FOI application is still pending. The Tribunal accepts the Applicant’s explanation for his inability to immediately recall the BLP strategies.
The Applicant was also questioned about his inability to put those skills learnt into practise because he has not been in a community setting since being imprisoned. The Applicant said, however, that when recently moving detention centres, he was at an airport and in an area proximate to him were two young girls. He did not engage in any inappropriate thought or fantasy, which he said was evident that the learning strategies had a significant impact upon him to his betterment.
The Applicant has also participated in the Grow program and, in a letter dated 16 March 2017,[3] it is reported that the Applicant was a committed and regular participant in the program for around two years. He was described as “a reliable person who consistently engages with his fellow participants in Grow’s mental health peer support program.” He was described as openly sharing his journey with group members, had grown in confidence, engaged supports and encouraged others. It was noted he exercises mature leadership and can be relied upon to provide sound advice and a steadying calm. This program, however, was to assist the Applicant in dealing with his incarceration and not his paedophilia disorder.
[3] Ibid, page 63.
Conclusion: Primary Consideration A
The nature of the Applicant’s offending was very serious. It was a sexual offence against his granddaughter, who was only eight years of age, and occurred at a time when he was responsible for her care, safety, and held a position of trust. To use a young child, as the Applicant did, to achieve sexual gratification, is reprehensible and abhorrent. The fact that he performed the act when he believed his granddaughter was asleep such that she would never know it occurred does not in any way mitigate his conduct and demonstrates the lengths he was prepared to go in his own selfish endeavours to achieve an erection.
To his credit, the Applicant openly acknowledged the wrongfulness and seriousness of his conduct, and did not in any way seek to excuse it. Also to his credit was the manner in which he dealt with the police investigation and the proceedings before the County Court of Victoria (County Court) and the Tribunal. Similarly, to his credit was the attitude demonstrated to those experts who provided reports to the County Court which contributed to the opinion expressed, namely that the Applicant had favourable prospects of rehabilitation and a low/moderate risk of re-offending.
It is also to the Applicant’s credit that he undertook the BLP. The fact that at an airport he did not react inappropriately when in the presence of young girls is, to some extent, encouraging. However, having regard to the whole of the evidence, the Tribunal finds that the assessment of Ms Lechner, namely that the Applicant was a low/moderate risk of re-offending, remains an appropriate assessment of risk.
The Applicant’s conduct offended the expectation that he remain law-abiding. He committed a sexual offence against a young child, his granddaughter, when she was in his care.
Further, were the Applicant to re-offend, the harm that would be occasioned to others may be substantial. The risk of re-offending referred to in the expert reports before the Learned Sentencing Judge, and complimented by the BLP assessment, is not an acceptable risk when weighed against the Government’s commitment to protect the Australian community, and in particular children.
In consideration of all the evidence and each of the relevant factors in paragraph 13.1 of the Direction, the Tribunal finds that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
The Applicant has two minor grandchildren, the elder is his granddaughter, who was the victim of his offence and who is soon to turn 18 years, and the younger is his grandson who is aged approximately 11 years. There is no evidence before the Tribunal about the Applicant’s relationship with his grandson prior to his offending.
The Applicant has had no association with his grandchildren since Christmas Eve 2010 and, whilst he still has a hope of a relationship in the future, he accepted in evidence that there is no real likelihood that this will occur.
The Applicant also has a number of nieces and nephews who have minor children but in relation to whom the Applicant plays no parental or support role. At its highest, were he released into the community, he would only see those minor children of extended family members at occasional family gatherings.
The Tribunal heard evidence from Mr JG who is a long term friend of the Applicant and whose grandchildren know and love the Applicant. However, there was no evidence that the Applicant played in the past, or will play in the future, any parental or other role in their lives, or that he has had or will have any regular contact with them.
The Respondent submits that, having regard to the whole of the evidence, the Applicant no longer maintains contact or has a relationship with his daughters and consequently his grandchildren. That may change in the future but, even on the Applicant’s evidence, it is unlikely. Nonetheless, the Applicant remains in hope that this will occur in the future. No other evidence has been identified or argument advanced by the Applicant in regards to this Primary Consideration.
The Tribunal accepts that the possibility of the Applicant engaging with his grandchildren in the future is remote. There is no suggestion that the Applicant’s separation from his grandchildren will have any impact upon them. There is no evidence that the Applicant plays a parenting or other role in relation to such other minor children to whom the Tribunal has referred above or that his separation from them will have any impact.
Having regard to the whole of the evidence, there is currently no minor child in respect of whom the Applicant plays any role. Taking into account the Applicant’s evidence that sometime in the future he has a hope of renewing contact with his grandchildren, and balancing that with the fact that the Applicant’s granddaughter is about to turn 18 and his grandson is currently 11, and that he has played no part in their lives for approximately 9 years, the Tribunal agrees with the Respondent’s submission and gives neutral weight to this Primary Consideration.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
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 for only 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.
In the days preceding the hearing before the Tribunal, the Full Federal Court delivered its decision in FYBR v Minister for Home Affairs (“FYBR”).[4] At the start of the hearing, the Tribunal raised the fact of the decision for the consideration of the parties, and clarified with the Applicant that he understood each of the Primary and Other Considerations and how each related to the function of the Tribunal. The Applicant said he understood each. The Tribunal told the Applicant that if there was any aspect of the proceedings or the legal framework under consideration that he did not understand or wanted clarified, he should not hesitate to ask.
[4] [2019] FCAFC 185.
In closing submissions, counsel for the Respondent, Mr Brown, provided very helpful submissions in relation to the decision in FYBR, provided a copy of the decision to the Applicant, and also summarised the decision for the benefit of the Applicant in clear and unambiguous terms. FYBR dealt with a visa refusal but has similar application to mandatory visa cancellations under s 501CA of the Act.
The Respondent submitted that it was now well-settled that it was not for the Tribunal to make its own assessment of the expectations of the Australian community. Consistent with the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection (“YNQY”),[5] paragraph 13.3 of the Direction deems the Australian community’s expectations. To put it another way, Charlesworth J in FYBR said at [67]:
… For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
[5] [2017] FCA 1466.
This was expressed in similar terms in FYBR by Stewart J who said at [94]:
… By its heading, being “Expectations of the Australian Community”, the clause is to be understood as being the Minister’s statement of the community’s expectations. It is not a statement about the process of decision-making …
The Respondent submitted, consistent with Charlesworth J at [69] – [79], that the Expectations of the Australian Community is a two tier test. The first is the norms of conduct that is expected of non-citizens. This is expressed in the opening sentence of paragraph 13.3 of the Direction, namely:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This norm is unambiguous and is an expression of expectation with respect to all citizens and non-citizens. The Respondent argued that expectation is plainly not met in circumstances where the Applicant cannot pass the character test in s 501(6) of the Act. It is argued, in circumstances where the Applicant does not pass the character test under s 501(6) because of the commission of a serious offence, by its nature this will weigh against the revocation of the Applicant’s visa cancellation.[6]
[6] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [42].
The second tier of this test is contained in the following two sentences of paragraph 13.3 of the Direction, namely:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa.
It was submitted that the words “may be appropriate” contemplates that it is for the Tribunal to determine in the exercise of its discretion whether it is appropriate to act in accordance with the deemed community expectation. Charlesworth J said at [76]:
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed nonexclusively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

The Respondent submitted that, as Charlesworth J said at [77], those matters that the Tribunal is to consider in the exercise of the discretion are those Principles referred to in paragraph 6.3 of the Direction to which the Tribunal has referred above.
The Respondent argues that, by the Applicant’s criminal conduct, the Applicant has lost the privilege to remain in Australia. Further, that albeit the Applicant may be afforded a higher level of tolerance of criminal conduct given he has lived in Australia for most life, the nature and circumstances of his offending of a sexual nature against a young child is so serious that little tolerance should be extended to the Applicant. The Respondent drew the Tribunal’s attention particularly to paragraphs 6.3(1) to 6.3(4) of the Direction.
Conclusion: Primary Consideration C
The Tribunal agrees with the Respondent’s submissions referred to above with respect to the approach that the Tribunal should have in determining the Expectations of the Australian Community and the appropriate weight to be given to Primary Consideration C.
Primary Consideration C does not permit subjective considerations of the Applicant to inform the Tribunal such that the Tribunal may reach its own conclusion about community expectations. Consistent with Charlesworth J in FYBR at [75], paragraph 13.3 of the Direction expresses “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa” cancelled. Hence, in this matter the Applicant has committed a serious criminal offence, has been sentenced to a term of imprisonment of at least 12 months, and was at the relevant time serving a full-time sentence of imprisonment in a custodial institution. Accordingly as the Applicant cannot pass the character test, this must weigh against the revocation of his visa cancellation. .
To the extent that the Tribunal has any discretion, it is in determining the weight to be given to this Primary Consideration. That discretion is informed by the Principles referred to in paragraphs 6.3(1) to 6.3(7) of the Direction.
The offence of incest in this matter can only be regarded as one that is very serious. It is abhorrent to any right thinking person, and conduct which the Australian community would expect would give rise to the revocation of the Applicant’s visa. It is offending which of its type would, and in the circumstances of this matter does, simply by the nature of the offence, give rise to an expectation that the Applicant should not permitted to continue to hold a visa.
Further, in circumstances where the risk of re-offending is low to moderate, such a risk is unacceptable, and the consequence of any re-offending upon a child would arguably cause, or potentially cause, long-term detrimental effects both psychologically and physically to a potential victim.
Albeit paragraph 6.3(5) identifies that Australia may afford a higher level of tolerance of criminal conduct in relation to the Applicant given he has lived in the Australian community most of his life, and from the age of approximately 13 years; and paragraph 6.3(7) permits the Tribunal to have regard to the length of time the Applicant has made a positive contribution to the Australian community, together with the consequence that visa refusal may have upon his family, these countervailing considerations are insignificant when balancing the weight to be given to this Primary Consideration in the operation of the Tribunal’s discretion.
Having regard to the whole of the evidence, the Tribunal finds that this Primary Consideration C weighs heavily in favour of non-revocation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence or argument was advanced in relation to international non-refoulement obligations such that it is of relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Respondent acknowledges that the Applicant has been in Australia since the age of 13 years, that he has resided in Australia continuously for approximately 53 years, and that he has spent this time positively contributing to the Australian community. His only offence is that which gave rise to his visa cancellation.
The Applicant is the youngest of his parent’s nine children. One of his brothers recently passed away and another resides in America, however the balance of his family, including nieces and nephews and their children, all reside in Australia. The Applicant provided a letter dated 21 December 2016 written by his brother, TD, and signed by five brothers,[7] confirming their continued support for the Applicant. In evidence, it was not disputed that the Applicant had the love and support of all of his siblings.
[7] Exhibit A, G Documents, pages 54 – 55.
The Applicant is an accomplished musician. On leaving school, he pursued a career in music. He played in a number of bands and was a composer. He taught guitar and started his own guitar school teaching from home. He taught in local schools and a leading guitar manufacturer offered him a job teaching advanced guitar. Following his marriage, he pursued a career as a sheet metal worker whilst continuing his passion for music.
The Applicant provided a detailed history of his employment in the music industry and sheet metal industry. In the latter, he held managerial positions indicative of his interpersonal skills and success in his chosen trade. He remained gainfully employed until retirement.
The Tribunal received character references from friends, and in particular JG, who also gave evidence before the Tribunal. He has known the Applicant for over 30 years. JG ran a band and for whom the Applicant played for many years. He described the Applicant as the driving force in his band and an exceptional musician.
JG said that the Applicant was a close member of his family and that his grandchildren love the Applicant, three of whom were young girls. JG said that the Applicant never did or said anything that led him or his family to have any concerns about him. JG acknowledged he did not know the full facts of the offending but had a general idea as to the criminal conduct and the fact that it involved the interference with a young girl. He said he was shocked to hear of the offending and that the Applicant left the band about one month before he was imprisoned.
JG visited the Applicant whilst he was serving his sentence of imprisonment. He said he was disappointed with the Applicant’s offending but he remains a friend. He does not condone what he did but he will continue to help him, provide support and, if released back into the community, provide a home where he can stay until he gets back on his feet. He would also have him back in the band. JG said that if the Applicant remained in Australia, he and their mutual friends can gather round the Applicant in support of him, and that he knows that he has support from those who care for him. He was confident the Applicant would not re-offend.
The Applicant’s brother, ND, gave evidence. He too came to Australia in 1966 along with his mother, the Applicant and other siblings. He was aged 18 years at the time. He worked as an apprentice.
ND described a close relationship between all family members, including the Applicant. ND also knew the Applicant’s daughters very well and was instrumental in reuniting the Applicant with his daughters and grandchildren. He observed the Applicant and EO, whom he described as being smitten with her grandfather.
ND confirmed the Applicant was a brilliant musician and was successful in the sheet-metal industry, holding managerial positions. He also knew JG.
ND confirmed that the Applicant was a diabetic and that he had lost a toe and part of the side of his foot because of that illness. He also suffered from difficulties with his eyesight.
ND has maintained regular contact with the Applicant whilst in custody and in immigration detention. He has been the conduit between the Applicant and the rest of his siblings and family members. ND has managed the Applicant’s property, including his home, but because the home was eating into his finances, a decision was made to sell the property. Settlement occurred in August 2019 (which the Applicant said in evidence resulted in a net sum of $450,000 which is in his bank account).
In cross-examination, ND was referred to the letter dated 21 December 2016. He affirmed the comment in the letter that his family “abhor for what he has done”. When the family learned of the offence, NG and TD met with the Applicant. He admitted his offending. The whole family was shocked. Family members met with their children to ensure that no similar offence had occurred. Those extended family members were also shocked. ND described the crime as unspeakable.
ND described a very large and loving family. He said the last time they had a family gathering there were approximately one hundred and fifty people there. Each of the Applicant’s sisters and brothers has children and grandchildren. ND has two grandchildren.
ND and his wife now live in a retirement village. They are not able to offer the Applicant accommodation should he be released from custody. His grandchildren often reside with him and his wife. He does not believe his son would allow that to occur should the Applicant reside at their home and he does not wish to lose that contact with his grandchildren. Nonetheless, ND will provide such support and assistance as he can, as will the other family members, should the Applicant be returned to the community. That support, he anticipates, will include transport for medical appointments, and providing transport and support to ensure compliance with any conditions of release, and attending counselling and therapy.
In cross-examination, ND said that the family have a number of cousins remaining in the United Kingdom. He keeps in contact with those cousins and had only recently been to the United Kingdom and visited them. He does not know if they will provide assistance to the Applicant should he return to the United Kingdom. ND did not tell any one of them about the Applicant’s offending.
The Respondent, in submissions, accepted that the whole of the Applicant’s immediate family reside in Australia and that his removal to the United Kingdom would have a significant adverse effect upon him, and in particular significant emotional distress. It was also accepted that the Applicant had lived the best part of his life in Australia, had been gainfully employed and made a solid contribution to the community both in his employment and in his music, including as a tutor, and that this Other Consideration weighs in favour of the Applicant.
Conclusion: Other Consideration 2
The strength, nature and duration of the Applicant’s ties to Australia are significant. The Tribunal agrees with the concessions made by the Respondent referred to in paragraph 107 above. The Applicant has spent the vast majority of his life in Australia and has made a valuable and positive contribution to the community.
The Tribunal accepts that the Applicant has no ties to the United Kingdom and that it will be emotionally and financially very difficult for the Applicant should he return to the United Kingdom. He does have the benefit of the proceeds of sale of his home in Australia but that is his only asset which the Tribunal infers will be of limited benefit to him in purchasing a new residence and providing for his long-term benefit. The Tribunal also notes that the Applicant has also volunteered for the Salvation Army prior to being incarcerated.
Accordingly, the Tribunal finds that this Other Consideration 2 weighs significantly in favour of the Applicant, but that it does not outweigh Primary Considerations A or C.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to impact on Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence or argument was advanced in relation to impact on victims such that it is of relevance in determining the application.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The United Kingdom is culturally and linguistically similar to Australia. There are no discernible cultural or language barriers confronting the Applicant were he compelled to return to the United Kingdom. The Tribunal infers the United Kingdom has comparable standards of healthcare, social welfare and housing support to those in Australia. The Applicant will have access to those services as a citizen of the United Kingdom.
However, the Applicant has no friends or family members whom he knows and that insofar as he has cousins still residing in the United Kingdom, the Applicant said they are strangers. The Tribunal accepts that evidence.
The Applicant said in evidence that he was concerned for his health and the impact that the United Kingdom weather may have upon him, particularly in relation to his diabetes. It is accepted that he has a long history foot ulcers which have had a debilitating effect upon him, including amputation of a toe. He said that he is fearful of the weather in winter, which he remembers as a child as very bleak.
The Applicant said that he had been contacted by the British Consulate who explained that, if deported, he would not be entitled to the Australian pension and that a subsidy is available in United Kingdom. The Applicant said he will use the proceeds of the sale of his house to help establish himself if required. He does not want to reconnect with family in the United Kingdom; he does not want to have to tell them he had been deported.
The Applicant in cross-examination acknowledged that his diabetic condition was at the moment reasonably under control, but he did not know anything about the National Health Service in the United Kingdom, how effective that service is, and how reasonable access is to medical support.
Conclusion: Other Consideration 5
The Tribunal finds that the Applicant will face significant hardships at least initially in establishing himself in the United Kingdom. He will have access to the similar and comparable public health services and supports as those generally available to other United Kingdom citizens.
However, he will have the burden of dealing with his relocation and integration back into the United Kingdom community alone. He will not have the support of family, friends or acquaintances to assist and guide him.
Having regard to the whole of the evidence, the Tribunal finds that Other Consideration 5 is to be given medium weight in favour of the Applicant.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs heavily in favour of non-revocation;
(b)Primary Consideration B is of neutral weight;
(c)Primary Consideration C weighs heavily in favour of non-revocation; and
(d)The combined weight of the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they do not weigh in favour of revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...................[sgd].....................................................
Associate
Dated: 12 November 2019

Date(s) of hearing: 30 - 31 October 2019

Applicant: In person

Solicitors for the Respondent: Mr David Brown
Australian Government Solicitor

[2019] AATA 4681

12 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	30 - 31 October 2019
Applicant:	In person
Solicitors for the Respondent:	Mr David Brown Australian Government Solicitor