McCutcheon and Minister for Home Affairs (Migration)

McCutcheon and Minister for Home Affairs (Migration) [2019] AATA 932 (20 May 2019)
Division:GENERAL DIVISION
File Number: 2019/1170
Re:Robert James McCutcheon
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:20 May 2019
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation – whether mandatory cancellation should be revoked – Ministerial Direction 79 – serious criminal offending – rape – false imprisonment – mental health – citizen of the United Kingdom – long-term resident – decision affirmed
Legislation
Migration Act 1958
Cases
DKXY and Minister for Home Affairs (Migration) [2019] FCA 495.
FYBR v Minister for Home Affairs [2019] FCA 500
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 79
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
20 May 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class BB Subclass 155 (Five Year Resident Return) visa (the “visa”).
The hearing in this matter was conducted on 8 May 2019. The applicant was self-represented and the respondent was represented by Mr Ned Rogers of the Australian Government Solicitor.
In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant as well as all of the documentary evidence before it.
BACKGROUND
General background
The applicant is a 51 year-old man who was born in London and is a citizen of the United Kingdom. The applicant migrated to Australia on 25 August 1978 aged 11 together with his mother, brother and sister. He was granted a Class BB Subclass 155 (Five Year Resident Return) visa.
The applicant has travelled outside of Australia including back to the United Kingdom on a number of occasions.
Criminal history
The applicant’s offending history is set out in the National Police Certificate attached to these reasons at Annexure 1.
His offending has included multiple convictions for rape as well as a conviction for false imprisonment arising out of a very serious incident that occurred in 2009. The applicant also has a significant record of driving offences including seven sentences for driving without a licence and five drink driving sentences. In addition, the applicant has committed a number of broader offences including hindering police, providing a false name to police (multiple counts), disorderly conduct (multiple counts), behave in an offensive manner and a minor drug offence.
Cancellation decision
On 15 September 2016 the applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test under s 501(6)(a) as a result of having a substantial criminal record and that the applicant was serving a sentence of imprisonment full time in a custodial institution for an offence against Australian law.
The applicant was issued with a letter from the respondent inviting him to make submissions in relation to the cancellation decision. The applicant subsequently made representations under s 501CA(4)(a) seeking a revocation of the decision.
On 13 December 2017 the then Assistant Minister for Home Affairs made a decision not to revoke the cancellation decision.
On 6 June 2018 the Assistant Minister’s decision was set aside by the Federal Court of Australia on the basis that the Assistant Minister had failed to have regard to all of the applicant’s representations in support of revocation. The matter was remitted back to the Minister for a decision according to law.
On 25 February 2019 a delegate of the Minister decided not to revoke the cancellation decision. Again, the delegate accepted that the applicant did not pass the character test under s 501(6)(a) and was also satisfied that the applicant was serving a sentence of imprisonment full time in a custodial institution for an offence against Australian law.
The applicant subsequently sought review of that decision, which is the subject of the application currently before the Tribunal.
ISSUE
The respondent contends that the applicant does not pass the character test under s 501(6)(a) as a result of having a substantial criminal record. The applicant did not concede this point at the hearing although he did not provide any substantive argument as to why the Tribunal should not accept the respondent’s position. More specifically, other than telling the Tribunal that he could not recall a couple of the charges listed as occurring in 1996 and 1997, the applicant did not present any substantive argument as to why the Tribunal should not accept the National Police Certificate as an accurate record of his criminal history nor how it is that he does not have a substantial criminal record within the meaning of s 501(6)(a). Having considered all of the material before it the Tribunal is satisfied that the National Police Certificate is an accurate record of the applicant’s criminal history and that the applicant does not pass the character test on the basis that he has a substantial criminal record under s 501(6)(a) and that he is serving a sentence of imprisonment full time in a custodial institution for an offence against Australian law.
Therefore, the issue remaining for the Tribunal to determine is whether there is ‘another reason’ to revoke the cancellation decision having regard to all relevant considerations, including those set out in Part C of Direction No. 79 made under s 499 of the Act on 20 December 2018 (“Direction 79”).
CONTENTIONS AND CONSIDERATION
The Preamble to Direction 79 specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(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.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of Direction 79 provides that 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.
Direction 79 sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
Primary Considerations
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of Direction 79 states:
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.
Paragraph 13.1(2) of Direction 79 states that decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Having considered all of the evidence, the Tribunal is satisfied that the applicant’s offences for rape and false imprisonment must be considered to be very serious. These offences were committed in 2009 against the applicant’s former partner. The applicant and his former partner had been in a relationship for approximately nine years. The applicant had found his former partner in the company of another man and had then embarked on what the sentencing Judge described as “a course of jealous retribution”. The sentencing Judge described the applicant’s offending against his former partner in significant detail and then described the applicant’s conduct as “an exhibition of gratuitous violence”. The offending included multiple counts of rape including oral, vaginal and anal rape as well false imprisonment. The offending took place in the victim’s home over the course of several hours.
On any assessment the applicant’s offending arising out of this incident must be considered to be extremely serious offending.
This is re-enforced by the significant term of imprisonment that was imposed on the applicant for the offences arising out of this incident which when aggregated totalled eight years including a non-parole period of five years and three months.
This is reinforced even further by a number of provisions in Direction 79 which acknowledge that violent crimes and crimes against women must be considered to be serious. For example, paragraph 13.1.1(1) of Direction 79 states that:
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:
The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
Further, the Tribunal notes that Direction 79 specifically states in the Principles at paragraph 6.3(3) that:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
In addition to the 2009 incident the applicant has a significant number of other offences including repeat drink driving offences and also repeat offences for driving without a licence.
The applicant in his submissions made reference to a comment made by the sentencing Judge for the applicant’s 2009 offences where His Honour said:
I do not regard your prior convictions as significant.
The applicant contended that his Honour’s comments supported a conclusion that his non-sexual offending should not be assessed as being ‘serious’. The Tribunal respectfully disagrees. While it may be reasonable to described the applicant’s non-sexual/violence based offending as less serious relatively, repeat drink driving and driving without a licence is offending that has the potential to put lives at serious risk and that also displays an appalling disregard for the law. For these reasons, in the view of the Tribunal the cumulative impact of this repeat offending when considered as a whole must also be considered to be serious.
Having determined that the applicant’s offending is serious, the Tribunal must then make an assessment of the risk of the applicant reoffending and the nature of the harm the community could potentially be exposed to should he reoffend.
The applicant contended that his risk of reoffending is non-existent. He presented a number of arguments to support his contention including that:
(a)he is remorseful and has developed insight into his offending which reduces his risk of re-offending;
(b)his chances of reoffending have been reduced by doing various rehabilitation programs he has undertaken including the Better Lives program conducted by the Specialised Offender Treatment Assessment Services which concentrated on his sexual offending and also an alcohol treatment program;
(c)his acknowledgement of the benefit of, and willingness to undertake, future counselling and support programs to help manage his behaviour;
(d)he has a good prison record which demonstrates good progress toward rehabilitation;
(e)as a result of his time in prison he has now had a prolonged period of abstinence from drugs and alcohol which reduces his risk of relapsing into drug and alcohol abuse and reoffending;
(f)he has offered to wear an alcohol anklet to help deter him from relapsing into alcohol abuse and reoffending; and
(g)he has the benefit of a close support group of family and friends who are committed to helping him remain alcohol and drug free and not reoffend.
The applicant also referred the Tribunal to a number of third party comments and assessments which the applicant contends ‘deem’ him “rehabilitatable or rehabilitated” and that are therefore relevant to any assessment of his risk of re-offending including:
(a)comments of the sentencing Judge in his rape and false imprisonment convictions where His Honour stated:
I must also have regard to your personal circumstances and to your character. I do not regard your prior convictions as significant. I accept that there is much good in you and I regard your prospects of rehabilitation as reasonably good.
(b)the conclusion of Ms Pamela Matthews, forensic psychologist, in her written report on the applicant where she concluded:
[The applicant’s] risk of reoffending is estimated to be quite low, negligible.
(c)positive informal feedback he claims to have received in relation to the likelihood of him obtaining parole once his visa cancellation issue has been dealt with.
(d)the applicant’s assessment as being low risk in the Karrenga Local Plan Agreement.
(e)A satisfactory behaviour assessment undertaken within the prison for the purpose of potential transfer.
The respondent contends that the risk of the applicant reoffending should be assessed as substantial or significant. Those contentions put by the respondent can be summarised as follows:
(a)the applicant is not truly remorseful for his offending;
(b)there is a link between drug and alcohol abuse and the applicant’s offending and while he has undertaken some courses and counselling to address these issues and abstained from drugs and alcohol while in prison this has not been tested in the community;
(c)while the applicant has undertaken a sex offenders program he has not undertaken programs directed towards violent offending;
(d)the applicant’s non-sexual based offending displays a disregard for the law which supports a higher risk of reoffending again in the future;
(e)while Ms Matthews assessed the applicant’s risk of re-offending as “quite low, negligible”, the assessment also stated that the applicant would benefit from ongoing counselling to maintaining a drug and alcohol free lifestyle and to better manage his personal relationships. This would suggest some level or risk and in any case the respondent rejects Ms Matthew’s assessment stating that it believed the risk is higher.
In relation to the Tribunal’s assessment of the risk of the applicant reoffending again in a manner similar to his non-sexual/violence based offences the Tribunal notes the following:
(a)By the applicant’s own evidence these offences related to a period in the applicant’s life where he was addicted to alcohol and drugs and dealing with a particularly stressful period in his life including dealing with two relationship breakdowns. Clearly the drink driving offences are alcohol related and therefore would fit with the applicant’s description of this period. For these reasons the Tribunal accepts that the non-sexual/violence based offences are inextricably linked to the applicant’s abuse of drugs and alcohol.
(b)The Tribunal accepts that during his time in prison the applicant has been drug and alcohol free and that this period of abstinence provides a heightened prospect of him maintaining a drug and alcohol free lifestyle if released back into the community. This is further reinforced by a number of programs and counselling he has had the benefit of while in prison to improve his insight into drug and alcohol abuse and drug and alcohol based offending.
(c)The Tribunal acknowledges the applicant’s stated commitment to avoid a relapse back into drug and alcohol abuse and to avoid re-offending, the applicant’s awareness of the serious consequences that would flow if he were to re-offend and the existence of a significant network of family and friends who are committed to assisting him in this effort.
(d)The Tribunal also acknowledges the applicant’s offer to wear an alcohol anklet to deter him from relapse.
Notwithstanding these considerations, the Tribunal is satisfied that the applicant is very likely to face stressful times on his release back into the community which the applicant himself has identified as a contributing factor in his abuse of drugs and alcohol in the past. While the applicant maintains that he has not abused alcohol since around 1997, by his own evidence he admits that alcohol impacted his judgment when offending in 2009. He told the Tribunal that his 2009 offence involved him being in a “fit of rage” and he also told the Tribunal that his potential for rage stems from his drug and alcohol issues. This was particularly concerning to the Tribunal.

Based on all of the evidence before it, the Tribunal is not satisfied that the applicant has maintained a lifestyle between 1997 and up to his offending in 2009 that was completely devoid of alcohol related behavioural issues. While the Tribunal acknowledges the applicant’s contention that he has been subjected to significant pressures in prison and yet has not resorted to drugs or alcohol the Tribunal is of the view that this is not the same as being properly tested outside of the prison environment. Given these factors the Tribunal holds real concern about the potential of the applicant to relapse back into drug and alcohol abuse.
For these reasons, on balance, the Tribunal is of the view that the risk of the applicant relapsing back into drug and alcohol abuse is real and not minimal or trivial. If the applicant does relapse back into drug and alcohol abuse then the Tribunal is satisfied that the risk of the applicant reoffending in a manner that is similar to his non-sexual/violence based offending in the past is high. Further, should the applicant engage in such offending again in the future, then the risk of harm to the members of the Australian community as a result of such offending would be serious.
In relation to the Tribunal’s assessment of the applicant reoffending again in a manner similar to his sexual/violence based offences the Tribunal notes the following:
(a)Based on the applicant’s own evidence that he had consumed five or six beers on the night of the 2009 incident and that his judgment was impacted (recognising that he maintained that he was not intoxicated) the Tribunal is satisfied that alcohol played a role in his sexual/violence based offending. The Tribunal has assessed there being a real risk of the applicant relapsing back into drug and alcohol abuse for the reasons described above and therefore this risk factor is somewhat relevant to the risk of the applicant once again engaging in offending similar to his sexual/violence based offending.
(b)The Tribunal acknowledges that the applicant has undertaken a number of rehabilitation programs and received counselling for his sexual based offending. The Tribunal accepts that the applicant has done this willingly and that there is evidence that he participated in these programs and counselling in a positive manner. The Tribunal accepts that by undertaking such programs and counselling the applicant is likely to have enhanced his understanding and insight into sexual based crimes at least at a theoretical level.
(c)The Tribunal notes however that the applicant has not completed a violent offending based program despite being given an opportunity to do so.
(d)The Tribunal acknowledges that the applicant has maintained good behaviour while in prison, has been assessed as such, has stated a strong determination not to reoffend and has a strong incentive not to do so.
(e)However, the evidence in relation to the applicant having genuine remorse for his rape and false imprisonment offences is at best inconsistent and this is particularly concerning to the Tribunal. The Tribunal recognises that there has been a level of acknowledgment by the applicant in relation to his sexual/violence based offending. In his written submissions in relation to the 2009 incident the applicant states that “I sexually assaulted her. My actions were totally out of character and I am truly sorry for my actions”. However, at various times the applicant has maintained that he is not guilty of the crimes for which he was convicted arising out of the incident, or at least not guilty of some of the charges. As the respondent noted in its written submissions:
When arrested and questioned by police the applicant claimed that the sexual acts were consensual and denied the false imprisonment. He maintained this claim at trial. Of greater concern is the fact that he has continued to assert his innocence, including by telling a forensic psychologist in December 2018:”I’ll profess my innocence all along until the day I die. I admit that I gave her a hard time, pushed her around…we had consensual sex…the evidence before the jury was a lot of fabrication”.
(f)In his oral evidence before the Tribunal the applicant fluctuated between expressions of remorse, words that could be best described as dismissive of the serious nature of the offending and, at least in respect of some elements of the offences, complete denial of criminal responsibility. The applicant told the Tribunal that his behaviour on the night in question had been “unruly” and “inappropriate”. When questioned about the extent of his responsibility for the offences he told the Tribunal “I didn’t mean to do it”, “it was a fit of rage”, “it was allegedly over a period of time”, “I disputed a lot of things about that night”, “I don’t’ believe it was rape”, “I asked for it and she agreed to it”, “she asked that I stop and I did stop”, “we had consensual vaginal sex”. When asked whether or not he imprisoned the victim the applicant told the Tribunal “I don’t think I did”. When asked whether the sexual intercourse was consensual the applicant told the Tribunal “yes”. He then went on to tell the Tribunal that “some of what I did was wrong” but that some of the charges were “wrong”. When pushed on the extent of his responsibility the applicant conceded “I admit I gave her a hard time”. When pushed further and asked when he had in fact raped the victim he told the Tribunal “yes I assaulted her but I deny a lot of the charges”.
Having considered all of the material before it and having heard the direct oral testimony of the applicant, the Tribunal is not satisfied that the applicant has proper insight into the true nature of his crimes. The Tribunal is not satisfied that the applicant accepts full criminal responsibility for his rape and false imprisonment offences. The Tribunal was left with the distinct impression that the applicant’s description of his behaviour that night as being “unruly” and “inappropriate” is a true description of the extent of his wrong doing as he sees it. This is despite having been convicted for what, in the words of the sentencing Judge, amounted to acts of “gratuitous violence” towards an innocent victim in her own home including multiple counts of oral, vaginal and anal rape and false imprisonment over the course of many hours. In this context the Tribunal cannot be satisfied that the applicant has genuine remorse for these offences or even a proper insight into the true nature of his offending. In the view of the Tribunal, the absence of genuine remorse or proper insight regarding his sexual/violence based crimes supports a conclusion that there remains a real risk of the applicant engaging in similar conduct again in the future.
The Tribunal draws this conclusion acknowledging a number of considerations that were raised by the applicant and which are dealt with in the following paragraphs.
The Tribunal acknowledges that the sentencing Judge described the applicant’s prospects of rehabilitation as “reasonably good”. The Tribunal accepts that there remains a possibility of the applicant rehabilitating and in fact recognises that he has taken steps towards rehabilitation including maintain good behaviour while in prison and undertaking a number of courses and counselling as described above. Notwithstanding this the Tribunal is strongly of the view that a genuine acceptance by the applicant of the true nature of his wrong doing and genuine remorse for that wrong doing is an important consideration in the Tribunal being able to be satisfied that the applicant is sufficiently rehabilitated to assess his risk of reoffending as being trivial or negligible.
The Tribunal also acknowledges the report of Ms Matthews which concluded that the risk of the applicant reoffending is “low, negligible”. The Tribunal notes that it has not had the benefit of hearing from Ms Matthews directly. Ms Matthews states in her report that extreme minimisation or denial of sex offences is predictive of general criminality and attitudes that condone sexual violence. Ms Matthews goes on to note that:
Mr McCutcheon oscillates between minimising his behaviour in denying intent or culpability but also exhibits periods of openly acknowledging his behaviour. At the point of interview with the writer he was denying his offending as described in the sentence statement of Judge Maidment. This item is coded “Y” for issue at least partially present, and relevant to the development of risk management strategies.
However, notwithstanding this observation and her acknowledgment that extreme minimisation or denial is a risk marker for re-offending, in her conclusion with respect to the applicant’s risk of reoffending Ms Matthews does not address this issue. Ms Matthews refers to broader considerations such as the onerous experience of prison and being separated from family, the applicant’s increasing age and what are referred to as the “positives gained in treatment”. While the Tribunal would acknowledge these considerations as being relevant to the assessment of risk there is no evidence that any training, counselling or other mitigation measures have reduced the applicant’s inclination towards minimisation of his crimes in any meaningful way. Given Ms Matthew’s own acknowledgment of such a tendency as being indicative of risk, an observation the Tribunal would fully agree with, and the fact that that tendency was clearly on display in the applicant’s evidence at the hearing, in the absence of further explanation the Tribunal cannot agree with Ms Matthew’s conclusion that the applicant’s risk of reoffending is “quite low, negligible”.
In addition, Ms Matthews’ report identifies other risk markers that, in her view, are present in the case of the applicant and that may give rise to a need for risk management strategies. Despite this Ms Matthews provides no explanation for how these factors are addressed in her conclusion regarding the risk of the applicant re-offending nor does Ms Matthews identify any specific future management strategies that may be required to effectively manage the risk other than to endorse the conclusion of Mr Joseph Mollica’s (Psychologist with Corrections Victoria) recommendation that the applicant would benefit from ongoing counselling support with respect to maintaining a drug and alcohol free lifestyle, managing interpersonal relationships, particularly relationships with women, and mood regulation. These additional risk markers include physical coercion in sexual violence towards the victim, psychological coercion in sex offences, problems with stress and coping, problems resulting from child abuse, substance use problems, problems with intimate relationships and non-sexual criminality. Again, having regard to these issues, in the absence of further explanation the Tribunal cannot agree with Ms Matthew’s conclusion that the applicant’s risk of reoffending is “quite low, negligible”. For these reasons the Tribunal gives Ms Matthews conclusion in this regard limited weight.
In his submissions the applicant made reference to having been given a low risk assessment for the purpose of the Kareenga Local Plan Agreement, a positive behavioural suitability assessment for the purpose of the Parole Board and also an informal positive feedback the applicant claims to have received from the Parole Board in relation to the likelihood of a parole claim being successful. The Tribunal was not able to receive direct evidence in relation to such an assessment or feedback other than references to them in the submissions and in various case notes contained in the applicant’s materials. As already noted, the Tribunal accepts that the applicant displayed positive behaviour while in prison which may be consistent with such an assessments and feedback however based on the materials before it the Tribunal is satisfied that any such assessment or feedback does not alter in any way the Tribunal’s own assessment of the risk of the applicant re-offending.
For the reasons set out above the Tribunal is satisfied that the applicant’s risk of re-offending again in a manner similar to his sexual/violent offending is real and not trivial or minimal and is sufficient to raise serious concerns about the safety of the Australian community. If the applicant were to re-offend in a similar way again then there would be a real risk of significant harm to members of the Australian community including women and members of the broader public. The Tribunal is satisfied that this represents an unacceptable risk of harm to the Australian community.
Accordingly, the protection of the Australian community weighs very heavily in favour of not revoking the mandatory cancellation of the visa.
The best interests of minor children in Australia
The applicant has one minor child relevant to this consideration, a daughter to his former partner. The evidence before the Tribunal is that the applicant is effectively estranged from his daughter due to an apprehended violence order that is in place that prevents the applicant from having contact either with his former partner or his daughter. The applicant was uncertain as to how long the order is in place for but his understanding is that it is a long term order. The applicant described loving his daughter and missing her and very much wanting to re-establish a relationship with her but he understood that would require legal action through the family courts. The Tribunal accepts the respondent’s contention that while it would be in the best interests of the applicant’s daughter for the mandatory cancellation of the visa to be revoked this is significantly tempered by the fact that the applicant currently has no engagement with her and is unlikely to before she turns 18 and that he is currently serving a term of imprisonment for the rape of her mother which is likely to have had some significant negative impact on the nature of their relationship.
The applicant has five grandchildren ages six to one through his adult son. There was evidence before the Tribunal of the strong bond that the applicant has developed with his grandchildren notwithstanding the fact that he has not yet met them. The applicant told the Tribunal that he very much loved his grandchildren and looked forward to the day when he could have direct face to face engagement with them. He described the role he was keen to play in providing support for his eldest grandchild who has autism. He told the Tribunal he would very much like to provide assistance to the family to ensure that the eldest grandchild can get the additional attention that he requires. The applicant told the Tribunal that he maintains regular phone contact with the grandchildren, in particular the second eldest. Again, the Tribunal accepts the respondent’s contention that the best interests of the grandchildren would be served by revoking the mandatory cancellation of the applicant visa, however, this is tempered by the fact that he has not yet met the children and would only play a supporting role in their lives given that they have parents who have primary responsibility.
There was also evidence of the applicant having some connection to his nephew’s three boys who are aged nine, five and two. Again the Tribunal accepts that the best interests of the children would be served by the revocation of the mandatory cancellation of the applicant’s visa although this is significantly tempered by the fact that he has had limited contact with them, has only met the eldest, and is not a primary care provider.
For these reasons this consideration should weigh in favour of the revocation of the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 13.3(1) of Direction 79 provides:
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.
As noted by the Federal Court in YNQY v Minister for Immigration and Border Protection[2], this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.
[2] [2017] FCA 1466. See also DKXY and Minister for Home Affairs (Migration) [2019] FCA 495 and FYBR v Minister for Home Affairs [2019] FCA 500.
The Tribunal accepts that in light of the findings above relating to a real risk of reoffending and an unacceptable risk of future harm, the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.
The Australian community has a low tolerance for violent offences and sexual offences against women. Given the nature and seriousness of the applicant’s offending, the Australian community would expect that this would weigh heavily in favour of not revoking the mandatory cancellation of the visa.
In weighing this consideration the Tribunal has had regard to the minor children, friends and family impacted by this decision, the length of time the applicant has lived in Australia, his contribution to Australia as well as the potential impediments the applicant is likely to face should he be returned to the United Kingdom.
However, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending, the significant risk of him reoffending and the unacceptable risk of harm that could be caused to the community is such that despite these issues, the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.
For these reasons, this consideration weighs heavily in favour of not revoking the mandatory cancellation of the visa.
Other Considerations
Non-refoulement obligations

There was no evidence before the Tribunal of any non-refoulement obligations owed to the applicant and therefore this consideration weighed neither for nor against revoking the mandatory cancellation of the visa.
Strength, nature and duration of ties
Given that the applicant has lived in Australia for approximately 40 years the Tribunal is satisfied he has very strong ties to Australia and the Tribunal recognises that the Australian community will have a somewhat higher tolerance of criminal offending as a consequence of these ties.
There was evidence before the Tribunal of the applicant having made a contribution to the Australian community including by working and also through volunteer work. The applicant told the Tribunal he has worked for approximately 90% of his adult life and the bulk of that time has been self employed as a painter. He also told the Tribunal that on several occasions he has assisted his local community in responding to and recovering from natural disasters including the Katherine floods of 1998 and the Black Saturday bushfires of 2009. The applicant also told the Tribunal that he has undertaken other community work including with sporting groups. This contribution has of course been somewhat tempered by the negative impact of his criminal offending and also limited by virtue of the period he has been incarcerated.
The applicant also has strong ties to Australia through friends and family. The applicant has a sister and brother, three adult children and a minor daughter living in Australia. As described earlier in these reasons his adult son has five children under 18 whom he has a strong connection. The applicant also has a close relationship with his adult nephews through his sister. Again, as described earlier he also has some connection to the children of one of his adult nephews. He has limited contact with his niece through his brother. The applicant has also maintained a relationship with his step-father.

The applicant also described having a small but supportive friendship group. He told the Tribunal that his best friend has offered to help him in his transition out of prison. There were a number of written letters of support provided by friends and family in support of the applicant in this matter. The Tribunal accepts that the applicant’s friends and close family would be significantly impacted by a decision to not revoke the mandatory cancellation of the applicant’s visa.
Given the significant ties and connection the applicant has with the Australian community this consideration should weigh in favour of a revocation of the mandatory cancellation of the visa.
Impact on Australian business interests
There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no evidence before the Tribunal of the impact revocation of the cancellation of the applicant’s visa would have on victims of his past offending. While it would be reasonable to infer from the evidence before the Tribunal that the applicant’s former partner has been significantly impacted by the applicant’s past offending the Tribunal is not aware of the victim’s view in relation to the cancellation of the applicant’s visa particularly having regard to the potential impact on their daughter, either positive or negative. The Tribunal therefore places limited weight on this consideration.
Extent of impediments if removed
There was evidence before the Tribunal of significant impediments that the applicant is likely to face if he is returned to the United Kingdom.
The Tribunal accepts that the applicant suffers a number of health conditions including, gastritis, lower back pain, headaches and arthritis. The applicant has also indicated that he has had difficulty with his shoulder and knee and also now suffers sciatica. The applicant contends that given the complexity of the social support and health care system in the United Kingdom he would have difficulty accessing the system at least in the short term. The respondent accepted that the system is complex and that there may be some short delay however otherwise contended that the applicant would be eligible to have access to such support consistent with any other UK citizen. The respondent pointed the Tribunal to a paper titled Social Security Programs Throughout the World published by the International Social Security Association and also a paper titled The English Health Care System issued by the Commonwealth Fund. The Tribunal accepts the respondent’s contention that while there may be some delay in securing qualification for social security support and health services there is no reason to believe that the applicant would not be entitled to such support or denied access to such support in a reasonably timely manner. The Tribunal accepts that the social security support and health services in the United Kingdom would be comparable to that on offer here in Australia.
There was some evidence in Ms Matthews report that the applicant might be susceptible to a heightened risk of mental health issues given the lack of family supports, his advancing age and the stress associated with having to re-establish himself in the United Kingdom. While the Tribunal accepts that there may be some heightened risk of mental health issues, at least until he establishes himself, it also notes that in the same report Ms Matthews described the applicant as being resilient man who over the long term is likely to cope with such a change. Further the Tribunal is satisfied that the applicant would be likely to have access to support services to assist in managing his mental health in the United Kingdom that would be comparable to those available in Australia.
The applicant has maintained that he will be homeless if he were to be repatriated back to the United Kingdom. Further he contends that the Federal Court of Australia in its earlier judicial review of the Assistant Minister’s decision confirmed that he would be homeless if he were to return to the United Kingdom. The Tribunal does not accept the applicant’s representation as to the relevant findings of the Federal Court of Australia although the Tribunal does recognise that the applicant’s contention that he will become homeless is a relevant consideration in relation to the decision before it. However, having heard the applicant’s evidence and considered all of the material before it, the Tribunal is not satisfied that there is a substantive risk of the applicant becoming homeless for any significant period if he were to return to the United Kingdom. Notwithstanding some health concerns as identified above, the applicant is still at an age where he would have a reasonable expectation of being able to work. Further, while the applicant has expressed a concern in relation to obtaining employment because of the need to disclose criminal convictions, the Tribunal is not satisfied that this factor would be likely to prevent the applicant from securing work although it accepts that it might be challenging. In reaching this conclusion the Tribunal has been mindful of the fact that the applicant has for a significant period been a painter and that he therefore possesses skills that could reasonably be expected to be in some demand in the United Kingdom and also that he has demonstrated the capacity to work for himself rather than as an employee. The applicant told the Tribunal “I could work. I have good practical skills”. In addition, as described above, the Tribunal is not satisfied that there is any reasonable basis for believing that the applicant would be denied the social security support generally available to UK citizens should he be out of employment for a period of time including support to assist with accommodation.
However, the Tribunal accepts that should the applicant be repatriated back to the United Kingdom his transition would not be without challenges in the short term given his lack of familiarity with the country as an adult, his advancing age, the absence of support networks and his lack of resources to assist in establishing himself there. The applicant told the Tribunal that while has some distant family in Scotland and an adult daughter in London he has had no engagement with them and that his adult daughter “wants nothing to do with me”. He told the Tribunal he has no savings of any kind or any superannuation he could access to assist in meeting costs associated with his resettlement. The Tribunal accepts that the applicant is likely to find costs associated with his resettlement and costs of living including rent and other essentials challenging at least until he is able to secure a reliable source of income.
For these reasons the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Other
In his written submissions the applicant made a number of arguments that he contended were relevant to the consideration of this merits review. They are dealt with in the following paragraphs.
The applicant argued that there was apprehended bias in the consideration of this matter on the basis that the Minister for Home Affairs was previously employed as a detective with the Queensland Police Force and had headed a taskforce that concentrated on arresting and convicting sex offenders. Without making any comment on the merit or otherwise of this assertion, the Tribunal is satisfied that this argument has no relevance in its decision. This Tribunal has undertaken a hearing de novo and therefore any suggestion of apprehended bias involving the Minister is not a matter for the Tribunal.
The applicant argued that as a long term permanent resident it is well established as a matter of constitutional law that a person who lives in Australia for long enough ceases to be an immigrant and becomes absorbed into the Australian community. The applicant asserts that he is someone who has positively contributed to the Australian community for nearly 30 years and therefore should be treated as equal to any other member of the Australian community or any other Australian citizen. He then cites comments from the Australian Human Rights Commission and the Commonwealth Ombudsman questioning the use of the cancellation power under s 501 of the Act in respect of long term residents. Notwithstanding the applicant’s assertions the Tribunal is not satisfied that there is any basis for questioning the power to cancel the applicant’s visa under s 501 of the Act. The issue before this Tribunal is consideration of the merits of the exercise of a discretion to revoke or not revoke the mandatory cancellation which is exactly the task it is focused on.
The applicant asserts that s 501(3)(a) was inserted into the Act after he was sentenced and that if he was being sentenced today then the mandatory cancellation of his visa would have been a mitigating factor for the sentencing. This Tribunal can only deal with the law as it stands today and the facts before it. There is no proper basis for the Tribunal to speculate about alternate circumstances.
The applicant argued that as he had received informal positive feedback about the prospects of him obtaining parole through his Community Corrections Officer and as the Parole Board is required to undertake a careful risk assessment in relation to the risk an applicant presents to the community then it is not reasonable for the delegate to have concluded that the applicant presents an unacceptable risk to the community. The Tribunal is of the view that any position adopted by the delegate in a previous decision is not relevant for the task before the Tribunal as this matter is being considered de novo. Further the relevance of any informal feedback received by the applicant from the Parole Board to the assessment of risk to the community has been addressed by this Tribunal earlier in these reasons.
The applicant also argues that he has been denied a “fair and just trial” on the basis that the Government keeps changing the laws. Again the Tribunal’s task is to apply the law and the facts that are before it. Any argument the applicant may have about the merits or otherwise of changes to the laws are in the realm of public policy debate and beyond the task before this Tribunal.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 79 – Part C. The Tribunal has carefully assessed each of the considerations of Direction 79 as set out above.
The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges that there remains a significant and unacceptable risk of future harm to the Australian community should the applicant be released back into the community. However, this needs to be weighed alongside all of the other relevant considerations including the expectations of the Australian community, the impact on minors, the applicant’s strong ties to the Australian community and also the challenges the applicant is likely to face were he to return to the United Kingdom.
Having weighed the relevant considerations very carefully and having regard to the Tribunal’s conclusion of there being an unacceptable risk of harm to the Australian community should the applicant be released back into the community, the Tribunal is satisfied that in all of the circumstances of this case, the correct or preferable decision is to not revoke the mandatory cancellation of the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

[sgd]........................................................................
Associate
Dated: 20 May 2019

Date of hearing:
8 May 2019

Applicant:
In person

Advocate for the Respondent:
Ned Rogers

Solicitors for the Respondent:
Australian Government Solicitor
Annexure 1

[2019] AATA 932

20 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Natural Justice

Date of hearing:	8 May 2019
Applicant:	In person
Advocate for the Respondent:	Ned Rogers
Solicitors for the Respondent:	Australian Government Solicitor