MKBL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 279
•24 February 2023
MKBL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 279 (24 February 2023)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2019/6164 General Division ) Re: MKBL
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Deputy President Boyle DATE OF CORRIGENDUM: 28 February 2023 PLACE: Perth The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:
- The table at para 11 of the decision be deleted and replaced with the attached table.
……………………………..
Deputy President
Court Date Offence Result Rockingham Magistrates Court 23/02/2018 PERSON WHO BREACHES CRO OR COMMUNITY ORDER WITHOUT REASONABLE EXCUSE FINE: $100 Perth District Court 20/02/2018 USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 22 MONTHS IMPRISONMENT MINIMUM 17 MONTHS
USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YOCONVICTED AND SENTENCED TO 7 MONTHS IMPRISONMENT USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YOCONVICTED AND SENTENCED TO 8 MONTHS IMPRISONMENT USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YOCONVICTED AND SENTENCED TO 7 MONTHS IMPRISONMENT USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YOCONVICTED AND SENTENCED TO 7 MONTHS IMPRISONMENT USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YOCONVICTED AND SENTENCED TO 6 MONTHS IMPRISONMENT USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YOCONVICTED AND SENTENCED TO 6 MONTHS IMPRISONMENT Rockingham Magistrates Court 15/01/2018 STEALING; CRIMINAL CODE (WA); 378 FINE: $1000 Perth Magistrates Court 19/09/2017 BREACH OF BAIL UNDERTAKING FINE: $400 BREACH OF BAIL UNDERTAKING
FINE:$400 Rockingham Magistrates Court 08/05/2017 NO AUTHORITY TO DRIVE (CANCELLED) IMPRISONMENT: 7 Months
CONCURRENT FROM 23-FEB-2018Perth Magistrates Court 15/01/2017 BREACH OF VIOLENCE RESTRAINING ORDER FINE: $650 Rockingham Magistrates Court 08/11/2016 NO AUTHORITY TO DRIVE (CANCELLED) DISQUALIFIED: 9 MTHS -
CUMULATIVE; FINE: $1500Rockingham Magistrates Court 04/05/2016 DROVE OR PERMITTED VEHICLE WITH FALSE PLATE TO BE DRIVEN FINE: $100 USED AN UNLICENSED VEHICLE FINE: $100 NO AUTHORITY TO DRIVE (FINES SUSPENDED) FINE: $300 USED A LICENCE, NUMBER PLATE OR LABEL TO WHICH NOT ENTITLED FINE: $150 NO AUTHORITY TO DRIVE (FINES SUSPENDED) FINE: $350 USED AN UNLICENSED VEHICLE FINE: $100 BREACH OF VIOLENCE RESTRAINING ORDER.; FINE: $400 Rockingham Magistrates Court 03/10/2013 POSSESSING STOLEN OR UNLAWFULLY OBTAINED PROPERTY FINE: $350 Rockingham Magistrates Court 20/06/2013 POSSESS PROHIBITED DRUG (METHAMPHETAMINE) FINE: $400 Rockingham Magistrates Court 20/05/2013 NO AUTHORITY TO DRIVE - NEVER HELD AND DISQUALIFIED FINE: $1400; MDL DISQUALIFIED: 9 MTHS Rockingham Magistrates Court 23/05/2011 NO AUTHORITY TO DRIVE - NEVER HELD AND DISQUALIFIED FINE: $1000; MDL DISQUALIFIED: 9 MTHS Fremantle Magistrates Court 04/11/2009 NO AUTHORITY TO DRIVE (FINES SUSPENDED) FINE: $400; MDL 7 DAY
DELAY: 6 MTHSMandurah Magistrates Court 07/10/2009 EXCEED 0.08% FINE: $800; MDL CANCELLED 6 MTHS Perth Magistrates Court 10/03/2009 TRESPASS FINE: $100 Rockingham Magistrates Court 09/05/2008 POSSESS PROHIBITED DRUG (CANNABIS) FINE: $200 Perth Magistrates Court 07/03/2006 EXCEED THE SPEED LIMIT BY 10-19 KILOMETRES PER HOUR FINE: $100 NO MOTOR DRIVERS LICENCE - UNDER SUSPENSION FINE: $1000 Rockingham Magistrates Court 29/08/2005 NO MOTOR DRIVERS LICENCE - UNDER SUSPENSION FINE: $500; MDL CANC & DISQ 9 MTHS CARELESS DRIVING FINE: $200; MDL CANC & DISQ 3 MTHS Rockingham Court of Petty Sessions 25/02/2005 EXCEED 0.08% FINE: $400; MDL CANC & DISQ 3 MTHS Rockingham Court of Petty Sessions 14/02/2005 RECKLESS DRIVING FINE: $400; MDL CANC & DISQ 12 MTHS Division:GENERAL DIVISION
File Number(s): 2019/6164
Re:MKBL
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President Boyle
Date:24 February 2023
Place:Perth
The decision of the delegate of the Respondent dated 26 August 2019 not to revoke the cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.............[Sgd]...........................................................
Deputy President Boyle
Catchwords
MIGRATION – s 501CA(4) of the Migration Act – refusal of delegate of the Minister to revoke mandatory cancellation of applicant’s visa – whether there is “another reason” to revoke cancellation of applicant’s visa – Ministerial Direction 90 – applicant is a 39-year-old citizen of United Kingdom who arrived in Australia as a 13 year old – sexual offences – use of carriage service to groom person under 16 – use of carriage service to transmit indecent communication to person under 16 – best interests of minor children – no reason why other considerations should outweigh primary considerations – there is not another reason to revoke the decision to cancel the applicant’s visa – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Arachchi and Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1311
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495; 78 AAR 160
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBRv Minister for Home Affairs [2019] FCA 500
FYBRv Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Minister for Home Affairs v [2018] FCAFC 217; (2018) 266 FCR 591
MKBL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1827
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
REASONS FOR DECISION
Deputy President Boyle
24 February 2023
THE APPLICATION
The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 26 August 2019[1] not to revoke the cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1]R1 p 286.
The applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
ADMINISTRATIVE/JUDICIAL HISTORY
The application was originally heard by a differently constituted Tribunal which, on 9 December 2019, affirmed the delegate’s decision.[2]
[2]MKBL and Minister for Home Affairs [2019] AATA 5292 (MKBL1).
By orders dated 22 December 2020, the Federal Court of Australia set aside that decision, and remitted the matter to the Tribunal to determine the application according to law.[3]
[3]MKBL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1827 (MKBL2).
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 6, 7, 8 and 11 April 2022. The applicant was represented by Mr M Crowley of counsel and Mr H Glenister. The Minister was represented by Ms C Taggart of counsel. The following witnesses gave evidence at the hearing:
(a)The applicant;
(b)The applicant’s brother, AW;
(c)The applicant’s brother, EJ;
(d)Dr James McCue (Dr McCue);
(e)Dr Gosia Wojnarowska (Dr Wojnarowska);
(f)The applicant’s sister:
(g)The applicant’s adoptive father;
(h)The applicant’s mother.
The following documents were admitted into evidence:
(a)Report by Dr McCue dated 1 June 2021 (A1);
(b)Copies of text messages between the applicant’s mother and the mother of the applicant’s child, received 8 April 2022 (A2);
(c)A joint bundle of documents, volumes 1 and 2 (R1);
(d)Addendum report of Dr Wojnaroska dated 5 April 2022 (R2);
(e)Letter to Dr Wojnarowska dated 17 March 2022 (R3); and
(f)Reply letter by the mother of the applicant’s child dated 18 May 2020 (R4).
The parties agreed to file written closing submissions.[4] At the conclusion of the hearing on 11 April 2022, I made directions that the applicant file and serve closing submissions by 2 May 2022, that the Minister file and serve closing submissions by 16 May 2022 and that the applicant file and serve any submissions in response by 23 May 2022. Following requests from both parties for extensions of time for the filing of submissions, the applicant filed his closing submissions on 30 May 2022 and the Minister filed his closing submissions on 20 June 2022. The applicant did not file any submissions in reply to the Minister’s closing submissions.
[4]Transcript, day 2 p 79.
BACKGROUND
The applicant is a 39-year-old citizen of the United Kingdom. He first arrived in Australia in 1996 as a 13-year-old with his mother, adoptive father, three brothers and his sister.
The applicant returned to the United Kingdom for two years between 2012 and 2014.[5]
[5]Transcript, day 2 p 44.
On 20 February 2018, the applicant was convicted of one count of using a carriage service to groom a person under the age of 16 years and six counts of using a carriage service to transmit indecent communications to a person under the age of 16 years. The offences occurred between 10 November 2015 and 9 August 2016. The applicant’s full criminal record is as follows:
Court Date Offence Result Rockingham Magistrates Court 23/02/2018 PERSON WHO BREACHES CRO OR COMMUNITY ORDER WITHOUT REASONABLE EXCUSE FINE $100 Perth District Court 20/02/2018 USE CARRIAGE SERVICE
TO TRANSMIT INDECENT COMMUNICATION PERSON UNDER 16YO (6 CHARGES)CONVICTED AND SENTENCED TO 22 MONTHS IMPRISONMENT MINIMUM 17 MONTHS
USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 7 MONTHS IMPRISONMENT USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 8 MONTHS IMPRISONMENT USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 7 MONTHS IMPRISONMENT USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 7 MONTHS IMPRISONMENT USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 6 MONTHS IMPRISONMENT USE CARRIAGE SERVICE TO GROOM PERSON UNDER 16YO CONVICTED AND SENTENCED TO 6 MONTHS IMPRISONMENT Rockingham Magistrates Court 15/01/2018 STEALING; CRIMINAL CODE (WA); 378 FINE: $1000 Perth Magistrates Court 19/09/2017 BREACH OF BAIL UNDERTAKING FINE: $400 BREACH OF BAIL UNDERTAKING
FINE:$400 Rockingham Magistrates Court 08/05/2017 NO AUTHORITY TO DRIVE (CANCELLED) IMPRISONMENT: 7 Months
CONCURRENT FROM 23-FEB-2018Perth Magistrates Court 15/01/2017 BREACH OF VIOLENCE RESTRAINING ORDER FINE:$650 Rockingham Magistrates Court 08/11/2016 NO AUTHORITY TO DRIVE (CANCELLED) DISQUALIFIED: 9 MTHS -
CUMULATIVE; FINE: $1500Rockingham Magistrates Court 04/05/2016 DROVE OR PERMITTED VEHICLE WITH FALSE PLATE TO BE DRIVEN FINE: $100 USED AN UNLICENSED VEHICLE FINE: $100 NO AUTHORITY TO DRIVE (FINES SUSPENDED) FINE:$300 USED A LICENCE, NUMBER PLATE OR LABEL TO WHICH NOT ENTITLED FINE:$150 NO AUTHORITY TO DRIVE (FINES SUSPENDED) FINE$350 USED AN UNLICENSED VEHICLE FINE: $100 BREACH OF VIOLENCE RESTRAINING ORDER.; FINE: $400 Rockingham Magistrates Court 03/10/2013 POSSESSING STOLEN OR UNLAWFULLY OBTAINED PROPERTY FINE: $350 Rockingham Magistrates Court 20/06/2013 POSSESS PROHIBITED DRUG (METHAMPHETAMINE) FINE: $400 Rockingham Magistrates Court 20/05/2013 NO AUTHORITY TO DRIVE - NEVER HELD AND DISQUALIFIED FINE: $1400; MDL DISQUALIFIED: 9 MTHS Rockingham Magistrates Court 23/05/2011 NO AUTHORITY TO DRIVE - NEVER HELD AND DISQUALIFIED FINE: $1000; MDL DISQUALIFIED: 9 MTHS Fremantle Magistrates Court 04/11/2009 NO AUTHORITY TO DRIVE (FINES SUSPENDED) FINE: $400; MDL 7 DAY
DELAY: 6 MTHSMandurah Magistrates Court 07/10/2009 EXCEED 0.08% FINE: $800; MDL CANCELLED 6 MTHS Perth Magistrates Court 10/03/2009 TRESPASS FINE: $100 Rockingham Magistrates Court 09/05/2008 POSSESS PROHIBITED DRUG (CANNABIS) FINE: $200 Perth Magistrates Court 07/03/2006 EXCEED THE SPEED LIMIT BY 10-19 KILOMETRES PER HOUR FINE: $100 NO MOTOR DRIVERS LICENCE - UNDER SUSPENSION FINE: $1000 Rockingham Magistrates Court 29/08/2005 NO MOTOR DRIVERS LICENCE - UNDER SUSPENSION FINE: $500; MDL CANC & DISQ 9 MTHS CARELESS DRIVING FINE: $200; MDL CANC & DISQ 3 MTHS Rockingham Court of Petty Sessions 25/02/2005 EXCEED 0.08% FINE: $400; MDL CANC & DISQ 3 MTHS Rockingham Court of Petty Sessions 14/02/2005 RECKLESS DRIVING FINE: $400; MDL CANC & DISQ 12 MTHS
As a result of the sentences imposed in relation to the applicant’s convictions of 20 February 2018, the applicant’s visa was cancelled under s 501(3A) of the Act on 7 August 2018.
The applicant voluntarily returned to the United Kingdom in February 2020.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly 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) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(1) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:[6]
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
[6]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
Ministerial Direction 90
Section 499(1) of the Act provides that:
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.
Section 499(2A) of the Act provides that, “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).
The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[7]
[7]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are stated to be 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[8] The character test is defined in s 501(6) of the Act (see [15] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [16] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The applicant has been sentenced to terms of imprisonment totalling more than 12 months and he therefore has a substantial criminal record. Accordingly, he does not pass the character test. The applicant concedes that to be the case.[9]
[8][2009] AATA 47; (2009) 106 ALD 66.
[9]Applicant’s SFIC para [2.1].
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [17] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(iii) any conduct that forms the basis for a finding that a non- citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non- citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) 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).
In his statement of facts, issues and contentions (SFIC), the applicant made the following submissions in relation to this consideration:[10]
[10]Applicant’s SFIC paras [44]–[50].
(a)There is no issue that the grooming offence and six indecent communications offences are ‘very serious’ for the purpose of para 8.1.1(1)(a)(i) of Direction 90.
(b)
The offences were not rape, homicide, indecent assault or child pornography.
They were not the most serious kind of conduct contemplated by Direction 90.
Not every kind of repugnant offending is to be automatically elevated to the most serious in the criminal calendar.
(c)The Tribunal’s role is not to punish or resentence or to express condemnation.
(d)On the above offences, the applicant was sentenced two years’ and 10 months’ imprisonment with an order that he be released after 17 months on a recognisance of $3,000 for the grooming offence. The applicant completed the six concurrent sentences of seven months’ imprisonment for the six indecent communication offences.
(e)In relation to para 8.1.1(1)(d) of Direction 90, it has now been four years since the sentences were imposed and almost six years since the offences were committed. The applicant has not committed any offences of any kind for the better part of a decade. There is no trend of trend of increasing seriousness in the applicant’s offending and the frequency of offending more than half a decade ago is now of little significance.
(f)There are some 18 driving offences, committed between 2005 and 2017: one reckless driving (2005); two exceed 0.8% alcohol (but less than 0.9%) (2005); one careless driving (2005); nine driving while suspended (one in 2005, one in 2009, one in 2010, one in 2012, three in 2015, one in 2016 and one in 2017), and one speeding (2005).
(g)Many of the driving offences are strict liability offences which involve no mental element at all. They do not therefore justify an inference that a person cannot distinguish between right and wrong.[11] Decisions of the Tribunal have treated driving offences as serious because of the potential for consequential harm (death/injury). That is illogical and would elevate any offence to serious. For example, jaywalking might cause a car to swerve and strike a pedestrian causing death–therefore constitute “serious” offending.
[11]Citing Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
The Minister’s SFIC made the following contentions:[12]
(a)The assessment of the seriousness of the applicant’s offending is not to be determined by considering what offences the applicant did not commit. A contention that the applicant has not murdered or raped anyone says nothing about the seriousness of his actual criminal offending.[13] Reduced to its essential premise, the applicant’s contention would always posit that there was some other offence that could have been committed.
(b)To the contrary, it is made plain that sexual crimes are viewed very seriously by the Australian Government and Australian community. Further, crimes committed against vulnerable members of the community are considered to be serious. Children are vulnerable members of the Australian community. Sexual crimes against children are of themselves very serious criminal offences.
(c)The applicant’s offending has been lengthy and has increased in seriousness over time.[14]
(d)The applicant’s contention that a trend of increasing seriousness is of little significance because the last recorded conviction concerns offences committed “almost six years” ago should not be accepted. I note that the applicant’s contention is that “[t]here is no trend” (presumably) of increasing seriousness.[15]
(e)The applicant’s offending history spanned a number of years and ranged across a number of offences.
(f)The applicant was taken into custody for breach of bail conditions in August 2017. From then until he voluntarily departed Australia in February 2020, the applicant was in custody and then immigration detention. His ability to continue offending was significantly curtailed. Further, on his own admission, since his return to the United Kingdom the applicant has used illicit substances.
(g)The applicant’s contention that many of his offences are ones of strict liability such that it cannot be inferred that he cannot distinguish between right and wrong is of no assistance. The seriousness of an offence is not necessarily or solely informed by a person’s awareness that what they are doing is “wrong” or they lack the ability to appreciate the risk associated with their actions.[16] Whether someone drinks and drives knowing that they are committing an offence and pose a risk to other road users does not modify the risk occasioned by the action. Further, there is no evidence to suggest that the applicant is incapable of recognising that driving without a licence, stealing, trespassing, driving whilst intoxicated or the like is “wrong”.
(h)If the contention is made that it cannot be inferred the applicant well understood that some or all of his offending was unlawful or “wrong”, that would be highly relevant to assessing the future risk posed by the applicant were his visa cancellation to be revoked.
[12]Respondent SFIC paras [31]–[39].
[13]Citing RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266 at [30] and [33]).
[14]Direction 90, para 8.1.1(1).
[15]Applicant’s SFIC para 48.
[16]Citing RQRP at [45]-[46].
The most serious of the offences of which the applicant has been convicted are the single count of using a carriage service to groom a person under the age of 16 years and the six counts of using a carriage service to transmit indecent communications to a person under the age of 16 years. The applicant was convicted of and sentenced for these offences on 20 February 2020. The material facts of the commission of those offences were read to the Court at the time of the applicant’s sentencing and were admitted by the applicant’s counsel appearing on that day.[17] In summary those facts (relevantly) were:
[17]R1, 931.
(a)The applicant created and used multiple Facebook Messenger accounts including accounts under the names Machiavelli Capone. That account was created to appear to be a legitimate account of a male aged 17 years complete with profile pictures of a young male around that age.
(b)Between October 2015 and August 2016, the applicant used that account to contact over 500 women online.
(c)On 8 May 2016 the applicant began to communicate with HD (count 1) who was 15 years old. Within 20 minutes of commencing the online conversation, the conversation turned to a sexual nature. The applicant spoke about performing oral sex on HD, having sex with HD and HD masturbating. HD provided the applicant with her mobile phone number.
(d)
On 9 May 2016 the applicant started another online conversation with HD.
The conversation was of a sexual nature.
(e)
On 15 June 2016 the accused began a third online conversation with HD.
The conversation was of a sexual nature. The applicant and HD exchanged photographs, supposedly of themselves. The applicant sent a photograph of a topless young male which he had obtained from the internet.
(f)The conversation again turned to the topic of sex and the applicant asked HD how often she masturbated and spoke about performing oral sex on HD.
(g)
On 16 June 2016 the applicant initiated a fourth online conversation with HD during which the applicant asked where HD lived and whether she could meet with him.
He asked HD whether she drank alcohol. The applicant gave HD his mobile phone number.
(h)Later that day the applicant sent HD a photograph of himself topless wearing a gold chain with a statement that the photograph was of his cousin, to whom he referred as his “cuz”. In a further online chat shortly after that, the applicant began to instruct HD to masturbate in her room and sent further photographs of himself.
(i)
The applicant then asked HD “Ya ever wonder what being licked out is like? Do you think my cuz is hot?” to which HD responded to the effect that he looked “a bit old”. The applicant replied that “He’s 20 but can make any girl tremble LOL”.
The conversation continued along the same lines for some time.
(j)The applicant and HD had further online communications on 17, 22 and 30 June and 1 July 2016. On 19 July 2016, the applicant sent HD another photograph of himself but this time described the photograph as being of him.
(k)Over the course of the Messenger conversations the applicant made six attempts to get HD to meet him.
(l)On 15 February 2016 the applicant began communicating with TS (count 2) using the name Capone. In the first conversation with TS, she advised the applicant that she was 13 years old. He advised TS that he was 15.
(m)The applicant asked to see TS’s “thong” to which she responded that she did not send pictures. The applicant then sent a photograph of himself holding his penis
(n)On 10 November 2015 (count 3) the applicant commenced a Facebook Messenger conversation with CR using the account name “Capone”. In a conversation on 9 December 2015 the applicant asked CR how old she was to which she responded that she was 13 years old. He advised her that he was 15. At 4.48 am on that day the applicant sent a message to CR that he would like to “fuck” her. The conversation continued in a sexually explicit manner. The applicant sent CR four images of an unidentified male aged between 15 and 18 and then sent a pornographic video following which he sent a message about the size of his penis. At 5.33 am and 5.58 am the applicant sent a further pornographic videos and photographs of himself (which he described as being of his cousin) to CR.
(o)At 8.14 am on the same day the applicant sent several photographs of himself to CR including a photograph of him naked with his hand covering his genitals and a close-up photograph of erect penises.
(p)The applicant continued the online conversations with CR up to 13 December 2015 during which he sent further pornographic images and videos.
(q)On 25 November 2015 the applicant began online communications with CS using the account in the name of Capone (count 4). The conversation with CS immediately became of a sexual nature with the applicant sending two videos showing an adult female being vaginally penetrated by a male with his penis. The applicant advised CS that he was 16 and CS advised the applicant that she was 14. The conversations of a sexual nature continued through to 30 November 2015 with the applicant sending CS three further pornographic videos.
(r)
On 4 November 2015 the applicant began a conversation with KJ (count 5).
KJ advised the applicant that she was 14. The applicant advised KJ that he was “turning 17”. On 9 December 2015 the applicant sent KJ photographs of shirtless unknown males between 15 and 18 years and two adult pornographic videos. KJ responded asking the applicant to stop and the conversation ended shortly thereafter.
(s)
On 10 November 2015 the applicant began to communicate with RE using the Messenger account in the name of Capone (count 6). RE advised the applicant that she was 15. The applicant told RE that he was 16, nearly 17. On 10 November and 2 December 2015, the applicant and RE had exchanges of a sexual nature talking about masturbation and the applicant asking RE for photographs of herself “without her shirt”. She sent the applicant two photographs of herself fully clothed.
The applicant sent RE several images of an unknown naked young male holding his penis and a video of an adult woman being vaginally penetrated.
(t)On 14 December 2015 the applicant began communicating with KV using the Messenger account in the name of Capone (count 7). The conversation started with the applicant sending KV photographs of a shirtless male between 15 and 18 to which KV responded by asking the applicant to stop sending her photographs of himself without a shirt. Shortly after that the applicant sent KV a message offering to have sex with her. KV asked how old the applicant was to which he responded that he was “17 to 18”. KV then advised the applicant that she was 15. Later that day the applicant sent KV a picture of himself naked with his hand resting near his penis. Thereafter the applicant and KV exchanged comments of a sexual nature.
(u)On 12 September 2016 the police executed a search warrant and seized the applicant’s mobile phone. When interviewed by police, the applicant said that he created the Machiavelli Capone account about a year earlier because his ex-girlfriend would stalk him, and he did not want her to know what he was doing online. He said that he had made the profile to look liked a 17-year-old boy.
Counsel appearing for the applicant at sentencing conceded that “immediate imprisonment is the only appropriate disposition in the case given the objective seriousness of the offending”.[18] In sentencing the applicant, O’Neal DCJ made the following observations:
(a)The maximum penalty for first offence, using a carriage service to groom a child is 12 years’ imprisonment and the maximum penalty for using a carriage service to transmit indecent material to someone under the age of 16 is seven years’ imprisonment.[19]
(b)An aggravating factor of count one was the applicant’s persistence with repeated suggestions by the applicant to meet HD. All of the offences show a “particular type of cunning and deceit” and in some cases, “a real degree of manipulation” of the child victims.
(c)His Honour had received reports about the applicant which were “concerning”. O’Neal DCJ observed that, despite the applicant’s plea of guilty, he had “at least when … speaking with the report writers, it appeared that you were trying to minimise your offending” and that “[f]or the reasons outlined in the reports [the applicant was] regarded as being at high risk of reoffending”, a conclusion with which O’Neal DCJ agreed.
(d)In assessing the objective criminality involved in the applicant’s offending, O’Neal DCJ stated that count 1 (grooming) was “a serious example of that kind of offending, among other things because of [the applicant’s] persistence”. Counts 2 to 7 were assessed by his Honour as “a moderately serious course of offending” involving a “particular pattern of deceit and manipulation and persistence”.[20]
[18]R1, 932.
[19]R1, 940.
[20]R1, 942.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the offences for which the applicant was sentenced on 20 February 2018 were of a sexual nature and must be viewed very seriously (sub-para (a)(i)). Making these offences even more serious is the fact that they were committed against children. While sub-para (a)(ii) refers to women and children, it identifies only crimes of “a violent nature” against women and children as having to be viewed very seriously. The opening words of sub-para (a), “without limiting the range of conduct”, however, make it clear that the offences identified in sub-paras (i)-(iii) are not exhaustive of the offences that are to be considered as very serious. A sexual offence is to be viewed as very serious and, in my view a sexual offence against a child, even absent violence, is to be viewed even more seriously. As noted by O’Neal DCJ in sentencing the applicant, the grooming offence of which the applicant was convicted was “a serious example of that kind of offending”.
(b)(Paragraph 8.1.1(1)(b)) – the offences for which the applicant was sentenced on 20 February 2018 were offences against vulnerable members of the community, namely, children.
(c)(Paragraph 8.1.1(1)(c)) – the sentences imposed by the Court on 20 February 2018 on the grooming count, 22 months’ imprisonment,[21] while at the lower end of the maximum possible sentence, 12 years’ imprisonment, is still a significant sentence reflecting O’Neal DCJ’s assessment of the seriousness of the offending. The sentences on the six counts of using a service carriage to transmit an indecent communication ranged from six to eight months.[22]
[21]R1, 943.
[22]The Western Australian Police History for Court – Criminal and traffic: R1, 956, is incorrect, or at least misleading/ambiguous where it identifies the “Result” in relation to the last of those charges as being a sentence of imprisonment for two years and ten months. The applicant was sentenced to a term of imprisonment of 6 months on that charge. The two years and ten months was the total cumulative effect of the sentences imposed for the seven offences on that date.
(d)
(Paragraph 8.1.1(1)(d)) – the applicant was convicted of 35 offences in the period from February 2005 to February 2018. A significant portion of those offences were traffic related with varying degrees of seriousness and relatively minor drug related offences. The applicant’s offending would be fairly characterised as frequent.
The most serious of the applicant’s offending were the offences for which he was sentenced in February 2018 so there is a trend of increasing seriousness.
(e)(Paragraph 8.1.1(1)(e)) – The cumulative effect of the applicant’s frequent offending and the repetition of the same sorts of offences, with a significant increase in the seriousness of the offending, indicates that the applicant is unwilling, or unable, to comply with the law. Of concern in that regard is that the reason that the applicant was taken into custody in August 2017 was that he had breached the terms of the bail granted in the District Court on the grooming and use of a service carriage charges. In particular, the applicant breached the terms of the bail undertaking that required the applicant to report to Kwinana Police Station three times a week and not to have unsupervised contact with children under 16 years of age. He failed to report to police as required and on 11 August 2017 and was found in his home with a 15-year-old female who was drug affected and a reported missing person.[23]
I reject the applicant’s argument set out in [31(g)] above. The applicant did not identify to which driving offences he was referring when he talked about “strict liability” offences which “involve no mental element at all” (applicant’s SFIC para 50) and that such offences cannot justify an “inference that a person cannot distinguish between right and wrong”. Assuming that the offences of strict liability to which the applicant is referring are those such as driving with an excess level of alcohol in his system, driving while suspended or driving an unlicenced vehicle, while those offences do not require proof of a specific intent, the fact is that the applicant repeatedly chose to drive in those circumstances. It is from his repeated choice to break the law that one can infer a disregard for the law and for the safety of other members of the community. I also fail to see how the Tribunal’s decision in Bartlett supports the proposition put by the applicant.
I also reject the applicant’s criticism of unspecified Tribunal decisions which assess the seriousness of offences, or types of offences, by reference the potential for consequential harm (death/injury) that such offences have. In that regard I refer to Colvin J’s comments at [43] and [44] of JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[24]
Further there are many instances, and drink-driving is an example, where the risk of serious consequences is the reason why the lesser offence exists. In effect, the purpose of the lesser offence is to discourage conduct which, in some but not all instances, will have serious consequences. These matters were recently addressed by McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266. In that case, a submission was advanced to the effect that there was error in applying Direction 79 to conclude that there was a risk of harm from future re-offending when there had not been serious harm from the applicant's past offending (which the Tribunal found he was at risk of repeating).
His Honour was there dealing with a different type of offending but reasoned by reference to drink-driving as an example, observing at [48]:
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. It is clear that child pornography and drink-driving offences fall into the former category. However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. Thus, possession and supply of child pornography is sanctioned because of the risk to children generally, who are inevitably abused to create such material and may be at greater risk of predatory behaviour by those who are encouraged by such material. In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users.
(f)Paragraphs 8.1.1(1)(f) and 8.1.1(1)(g) – not relevant in this case.
[23]R1, 1272.
[24][2021] FCA 762.
Based on the considerations in para 8.1.1 of Direction 90, I am satisfied that the applicant’s offending, particularly his most recent offending, has been very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen 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 serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or serious conduct of the type that he has in the past is obvious and serious. At para 51 of his SFIC, the applicant cited Dr McCue’s evidence at the previous Tribunal hearing that “[t]here is no dispute that psychological harm may be occasioned by non-context sexual offences”, “that victims of ‘non-contact’ offences might be expected to ‘lack trust in people, to have felt embarrassed or humiliated because the person they’re talking to’” and that such offences “may have consequences in terms of the parent/child relationship, with parents becoming overly restrictive and protective which may delay or interrupt sexual development”.
In relation to the harm that might be caused by the applicant repeating the driving and drug related offences that he has committed in the past, I prefer the reasoning of Colvin J and McKerracher J in the cases cited at [35(e)] above to the applicant’s theory set out in [31(g)] above.
The Minister’s SFIC also referred to Dr McCue’s evidence at the previous Tribunal hearing to the effect that there is an overlap in the harm caused by contact and non-contact sexual offenders because both cause “significant psychological harm to their victims”, albeit physical violation of a victim causes more significant psychological harm. These harms, according to Dr McCue’s evidence are pervasive harms that cut across relationships and the otherwise ordinary development of a young person.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The applicant pointed out that the Court in MKBL2 held that the Tribunal had erred in finding that an element of the grooming offence of which the applicant was convicted was an intention to procure the child victim to engage in sexual activity with him. The Tribunal then concluded, wrongly as held by the Federal Court, that a repetition of that offending behaviour would “involve the [a]pplicant intending to, and potentially succeeding in, procuring a future child victim to engaging [sic] in sexual activity with him”[25] I make my assessment conscious of the judgment in MKBL2.
[25]MKBL1 at [82].
The applicant pointed to the evidence given by Dr McCue at the hearing in MKBL1 which was to the effect that it was unlikely that the applicant would actually procure a child for sex. The applicant cited Dr McCue’s evidence “that potentially he doesn’t really have the confidence sexually to act on that because he would have to follow through with what he had suggested in the texts”.
The applicant also cited published statistical evidence, texts and papers[26] which included a statistical analysis that “suggest[s] that there may be a distinct subgroup of online-only offenders who pose relatively low risk of committing contact sexual offences in the future”.[27]
[26]Applicant’s SFIC paras [54]–[57].
[27]Citing Seto, M., Hanson, R., Babishin, K. ‘Contact Sexual Offending by Men With Online Sexual Offences’, Sexual Abuse: A Journal of Research and Treatment (2011), Volume 23(1), 124-145, 124, 36).
Based on the statistical analysis and material referred to in those paragraphs of the applicant’s SFIC, the submission was made by the applicant that the applicant “has in reality a negligible risk of reoffending and causing harm”.[28] The applicant contended that the expert evidence of Dr McCue, who had observed the applicant over more than two years, should be given greater weight. According to the applicant, the statistical evidence and the expert evidence of Dr McCue “converge in the conclusion” that the applicant is a low risk of reoffending.
[28]Applicant’s SFIC para [58].
The applicant contended that past offending may be a logical basis for an inference of future offending, but that that inference is “foreclosed by the actuality of there being no further offending of any kind for more than half a decade”.[29] According to the applicant, the fact that the applicant has not reoffended for that period is also evidence of his rehabilitation.[30]
The applicant contended that the evidence is also that the applicant has completed further rehabilitation programs and undertaken ongoing counselling since returning to the United Kingdom. He has also completed an Advanced Diploma in Psychology with Distinction in October 2020, obtained a qualification as a ‘Psychological Wellbeing Practitioner’ in November 2021 and a qualification in ‘Addiction Psychology and Counselling’ in June 2021.
[29]Applicant’s SFIC para [59].
[30]Applicant’s SFIC para [60]
The Minister’s SFIC contended that, while Dr McCue offered an assessment that the risk of the applicant reoffending is “low”, there are three significant matters to observe:
(a)Direction 90 makes plain that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. There is some conduct, and its resultant harm, that is so serious that any risk it may be repeated may be unacceptable. That particularly includes sexual offences, regardless of whether the risk posed does not include a measurable risk of physical harm (Direction 90 para 5.2(5) and 8.1.2(1)).
(b)Dr McCue was apparently not made aware of three particular facts relevant to his opinion about the likelihood or otherwise of the applicant engaging in contact sexual offences, being:
(i)the applicant had sent photographs of himself to some of his victims;
(ii)prior to his return to custody, the applicant was found in the presence of a 15-year-old intoxicated child;
(iii)the applicant had tried to video call at least one of his victims on various occasions.
(c)There is expert evidence that disagrees with Dr McCue’s opinion and which identifies limitations in the methodology and factual basis upon which those opinions have been reached.
In relation to the applicant’s submissions based on statistical analysis of recidivism, the Minister contended that analysis of that kind is unsound. According to the Minister Dr Wojnarowska has given expert evidence concerning the relevance or reliability of certain of those studies and has also applied relevant criteria to reach a specific risk assessment as it concerns the applicant. Further, an assessment as to the recidivism or movement into contact offending by a general class of persons does not reveal or allow for an understanding about the risk posed by a particular individual.
Expert evidence
Dr James McCue – report dated 24 November 2019 (R1, 229-251)
Dr McCue is a Clinical and Forensic Psychologist and registered and endorsed by the Australian Health Practitioner Regulation Agency (AHPRA). He has completed a Doctor of Psychology with a focus on assessment and treatment in both clinical and forensic contexts (R1, 230). Dr Mc Cue identified the purpose of the report, prepared at the request of the applicant’s solicitors, to be to provide an assessment of the applicant’s risk of reoffending should he return to live in the community.
Dr McCue stated that he prepared the report based on:
(a)Interviews of the applicant;
(b)Psychological testing;
(c)A telephone interview with the applicant’s mother;
(d)Review of the G documents filed in the previous Tribunal proceedings; and
(e)Review of the Australian Federal Police statement of material facts.
The applicant reported that he had a “great family”. His mother also reported that he has a good relationship with his siblings. The applicant advised Dr McCue that he is closest to the eldest of his stepsiblings saying that “he is my best friend”. He indicated that he was close with all of his siblings but noted that he had a different relationship with each of them.
The applicant reported that he is close with his mother and adoptive father, whom he considers to be his father. He described his parents as always having been supportive of him. His mother stated “we’ve become even closer since this (the offending) happened. I was annoyed, but he’s realised I was always there…he’s back to being the [applicant]”
Dr McCue reported the applicant as having told him that he had held a number of jobs since leaving high school, but maintained a consistent record of employment until 2012 when his methylamphetamine use increased and that at around that time his employment contract was terminated because he failed urinalysis tests. Dr McCue’s view was that the applicant did possess a work ethic and had demonstrated an ability to maintain employment and contribute to his chosen industry.
Dr McCue reported that file information and information provided by the applicant’s mother indicated that relationship with the mother of his child (born at the beginning of 2012) following their separation was strained and the nature of the conflict resulted in his former partner applying for a Violence Restraining Order (VRO) against the applicant. He acknowledged during interview that he was using methylamphetamine at the time and consequently, he did not manage his emotional reactions to his former partner well. As a result, the applicant’s contact with his son has been sporadic due partly to his conflict with the child’s mother and the presence of the VRO. He advised that he had neglected his parental responsibilities when he was in the midst of heavy methylamphetamine use.
The applicant reported to Dr McCue that he was the victim of a serious assault a 2013. Dr McCue concluded that, on the basis of the information provided to him by the applicant, the applicant “experienced symptoms of Post-Traumatic Stress Disorder (PTSD) following the assault. It further appears that some of these symptoms, such as nightmares related to the event, have not abated”.[31]
[31]R1, 236.
Under the heading Risk Assessment and Mitigation, Dr McCue made the following assessments:[32]
[32]R1, 242-5.
In relation to his motivation to change and his eligibility to remain in Australia, [the applicant] acknowledged the wrongfulness of his offending behaviour and the psychological harm his sexual offending likely caused to his victims. He described being motivated to maintain his abstinence from substance use, engage in treatment to reduce any risk he poses in relation to re-offending in a similar manner, and create a stable and prosocial life to become a more active father in his relationship with his 7-year-old son. [The applicant] acknowledged his fear of being separated from his family, with his nuclear and some of his extended family now residing in Australia. He recognised that his poor choices and behaviour had jeopardised his residency in Australia.
Risk
There is no validated psychological, actuarial or structured professional judgement, risk assessment tool available to assist in the assessment of non-contact (online) sexual offending. However, conclusions regarding risk of re-offending can be drawn from the factors known to influence deviant sexual behaviour, in addition to the motivational factors that were specific to [the applicant’s] offending. In his case, the risk factors include 1) his methylamphetamine use, and 2) his insecurities and low sexual confidence in his romantic relationships.
With regarding to the first risk factor, nearly all of [the applicant’s] offending, including his sexual offending, has occurred in the context of him using drugs, and more specifically, methylamphetamine… It is my opinion that [the applicant’s] methylamphetamine use and him becoming entrenched in a drug using lifestyle provided him with the acceptance he desired, despite it also contributing to an unhealthy and unstable lifestyle… substance use is not the direct cause of the behaviour, but the disinhibiting nature of the substance enables individuals to act in ways they would otherwise control.
…
In terms of the second risk factor,… [the applicant’s] insecurities regarding sexual relationships have therefore contributed to his motivation to offend sexually in the manner he did, as he formed a distorted belief that females aged 13 to 15 would be impressed by his sexual conversations and bravado because they were sexually inexperienced.
…
Risk Mitigation
…
To best mitigate [the applicant’s] risk of reoffending, it is recommended that, if he were permitted to remain in Australia, he would need to engage in psychological treatment to continue the abstinence from illicit drug use he has achieved whilst he has been imprisoned and detained. Although it is recognised that [the applicant] is actioning behaviour change currently by abstaining from illicit drug use, his ability to maintain his sobriety has not recently been tested in a community setting. It is likely therefore that he will require support in the community, at least for the short to medium term, to maintain his abstinence.
…
… As noted, he did not complete a sex offender treatment program whist imprisoned. He would likely benefit from completing sex offender treatment in the community, should he be permitted to remain in Australia.
...
Although specialised psychological treatment is recommended to be the core component of any plan to mitigate [the applicant’s] risk of reoffending, it is recognised that he has experienced difficulty complying with orders and requirements previously. For example, he has breached a VRO and CBO previously.
Dr McCue did not make any specific assessment of the applicant’s risk of reoffending, rather he concentrated on factors to reduce his risk.
Dr James McCue – report dated 1 June 2021 (A1)
In this report, which Dr McCue described as an update of his report dated 24 November 2019, Dr McCue reported that the applicant “presented as eager to undertake a follow-up psychological assessment” and “impressed as having used his deportation from Australia as an opportunity to reflect on his past life choices and to have made attempts to address the factors that contributed to his illicit drug use and offending behaviour”.[33]
[33]A1, page 3 of 9.
Dr McCue reported the applicant as having advised him that he was deported to England in February 2020. The applicant explained that he had struggled more with homesickness since his parents returned to Australia and has been feeling particularly isolated. He commented that he feels stressed and worried about his parents, noting that their party hire business was “decimated by COVID” and his father can no longer afford to hire staff to help with the work. He commented that his mother has been suffering from hypertension and depression, noting that this was worsened by his deportation. The applicant reported that he currently does not have contact with his son. He said that his ex-partner has blocked communication through Skype and Face Time and sent him a letter advising that he and his parents “are not part of … (son’s) life”.
Dr McCue also referred to a witness statement provided by a member of the Leeds police who advised that the applicant was placed indefinitely on the UK Sexual Offenders Register following a hearing at Leeds Magistrates Court in June 2020. He has therefore been subject to the supervision requirements. The police officer reported that he had met with the applicant on four occasions and spoken with him via telephone on a number of other occasions. The purpose of this contact has been to assess and manage the applicant’s risk. The officer’s impressions of the applicant were that he had “appeared sober and coherent”, he has engaged in training and education, he had found employment and his is well supported by his family.
The applicant expressed a desire to complete his A Levels if he remains in England (or the equivalent if he returns to Australia), as this will provide him with the opportunity to enrol in a bachelor’s degree. He explained that he would like to work as a psychologist, or in a similar type of helping profession.
Dr McCue recorded that the applicant had advised him that he had lapsed into illicit drug use when he first arrived in England, and prior to him being placed on the Sexual Offender Register and engaging in treatment programs and therapy. He admitted that he smoked cannabis and used cocaine and said that he last used cocaine approximately ten months ago, and he last used cannabis approximately three months ago. He described that his lapse was precipitated by a sense of hopelessness regarding his appeal against his deportation, and then more recently by his parents returning to Australia and his feelings of isolation.
Dr McCue also recorded the applicant as having told him that he has engaged in treatment to address the factors related to his prior drug use and sexual offending behaviour. Towards the end of 2020, the applicant completed an eight weeks’ sex offender treatment program through the organisation, Safer Lives. According to a letter provided by the Director of Safer Lives, the treatment program includes understanding the impact of offending on child victims, understanding individual risk factors related to offending, exploring the relationship between intimacy, sexuality, and masculinity, the implications of criminal convictions, and lifestyle factors related to offending.
Additionally, according to Dr McCue, the applicant engaged in counselling sessions with Ms Gillie Arthington, Advanced Clinical Practitioner, who reported that she and the applicant had contact on at least a monthly basis. The focus of sessions had been his low mood, anxiety, flashbacks, and separation anxiety. He had been prescribed an anti-depressant and benzodiazepine medications to assist with these symptoms. More recently he had also been assessed as to his suitability for a Cognitive Behavioural Therapy program through the Vita Health group to assist with his emotional regulation and management. At the time of interview the group had not yet commenced.
In relation to whether the applicant had shown improvement since Dr McCue first assessed him, Dr McCue’s assessment was that the applicant’s explanation of his offending was noted to be considerably more candid and insightful than his explanation during the previous assessment. He appears to have accepted his previous poor decision-making and this has allowed him to acknowledge specific details of his offending irrespective of the shame those details may cause him. Further, the applicant acknowledged that his previous offending “could have escalated” and noted the likely significant and serious impact that he had on his victims. He stated, “I could have cause[d] them PTSD (post-traumatic stress disorder), anxiety, depression. They’ll be watched by their parents. They’ll have trust issues, sadness, low self-esteem”.
Dr McCue reported that the applicant had advised him that he had developed a relapse prevention plan as part of the treatment that he has undertaken and provided details of that plan. He explained that if he were to be permitted to return to Australia, he is motivated to continue his treatment efforts, given the importance of them to minimise his risk of re-offending and his recent relapse by using cannabis. He has identified that he could attend drug use counselling through Holyoake and would be prepared to engage in residential rehabilitation. He explained that he would like to engage in private psychological counselling to address his emotional issues and learn to better manage his emotions.
In relation to the applicant’s risk of reoffending, Dr McCue stated:[34]
Since my psychological assessment and report in 2019, [the applicant] has taken steps to address all of the recommendations provided to reduce his risk of re-offending in a similar manner. Most notably, he has completed a sex-offender treatment program and he is engaged in ongoing counselling to better manage his emotional wellbeing and prevent his illicit drug use. [The applicant] has taken steps to develop a pro-social lifestyle, which includes him undertaking education and training courses, finding employment, and focusing on his physical health and exercise. He has reported that he has relinquished his social media accounts, consistent with my recommendations. During the current assessment, [the applicant] demonstrated new insight into his offending and was able to articulate, in his own words, the factors that contributed to his sexual offending and his illicit drug use.
[34] A1, p 8.
In relation to the applicant’s self-reporting of his relapse into illicit drug use, Dr McCue commented that:
Lapse and relapse are considered to be a typical aspect of the behaviour change process according to models such as the Transtheoretical Stages of Change Model. Lapses can provide individuals with important insights into the factors that contribute to their substance use that can strengthen their relapse prevention plan and prevent future lapses. Importantly, [the applicant] is able to identify his emotional vulnerability at the time of his lapse, which he has explored as part of subsequent counselling sessions. It is further noted that his lapse did not prompt a spiral into ongoing or intense illicit drug use, which indicates that he has the ability to recognise problematic behaviour and take control of his drug use and take action to return to sobriety.
(Footnote omitted)
In relation to the risk of the applicant reoffending, Dr McCue concluded that:
[The applicant] has demonstrated the ability to reduce his risk of re-offending. Should he continue his current treatment efforts and sustain the pro-social lifestyle changes he has made to date, it is my opinion that his risk of re-offending will remain low.[35]
Dr Gosia Wojnarowska – report dated 23 September 2021 (R1, 1300-1314)
[35]A1, p 9.
Dr Wojnarowska describes her qualifications as being a registered medical practitioner registered with AHPRA and having a specialty in psychiatry with a sub-specialty in forensic and child and adolescent psychiatry. She is a past Chair of the WA Branch of the Royal Australian College of Psychiatrists.[36]
[36]R1, 1301.
Under the heading “Limitations”, Dr Wojnarowska reported that:
[The applicant] was provided an opportunity to attend an interview by video link, however he did not attend. Therefore, this report has been based on the documentation and information provided by the Australian Government Solicitors Office. In addition, there are no details of the breach of bail offence when [the applicant] was found in the company of a 15-year-old female. This information would be highly relevant in assessing [the applicant’s] intent and degree of grooming involved in his actions at that time.
At para 7 of her report, Dr Wojnarowska advised that she had:
… received training in the use of specialized risk assessment tools and psychological tests relevant to the field of forensic and child adolescent psychiatry; I have also received specific training in the assessment of risk in sexual offenders, with special focus on the Dangerous Sexual Offenders Act 2006. I provide comprehensive psychiatric reports pursuant to the High Risk Serious Offenders Act 2020 and maintain interest and expertise in the assessment of psychopathy, violence risk and risk of sexual violence.
Dr Wojnarowska outlined the applicant’s offending history with particular regard to the child sex offences. At para 15 of her report, Dr Wojnarowska commented that:
[The applicant] was found to be in the presence of a 15-year-old female who was under the influence of substances. Although it has been recorded only as a breach of bail, this suggests that given the opportunity and regardless of orders placed on him, he was prepared to escalate to meet an adolescent in person.
As the applicant had not attended the appointment with Dr Wojnarowska, she was in large part dependent on the information and history set out in Dr McCue’s reports. Under the heading “Diagnostic Opinion” at para 39 of her report, Dr Wojnarowska stated that:
There is sufficient evidence that [the applicant] displays hebephiliac interest. Hebephilia is sexual preference for children in early adolescence, between ages 11 and 14. The concept is distinct from paedophilia, which is marked by a sexual preference for prepubescent children, rather than those who have finished puberty and entered adolescence.
While observing that, as she had not examined the applicant, she could not make a diagnosis, she opined that the applicant’s history suggests the presence of antisocial personality traits (disregard for societal norms and rules, impulsivity, and substance abuse).
At para 50 of her report Dr Wojnarowska stated:
[The applicant’s] offences are in the category of child luring, and it is therefore possible that the opportunity provided by the internet would lead him to succumb to temptation to meet a potential victim in person. Although he was not charged with a sexual offence as a result, [the applicant] was found to be in the company of a 15-year-old female whilst on bail.
Dr Wojnarowska cited a number of the statistical studies and papers referred to by the applicant in his SFIC (see [43] above) and explained the tools in assessing the applicant’s risk of recidivism that she had applied. At paras 62 and 63 of her report she stated :
[The applicant’s] offending belongs to the category of online solicitation which is a subclass of the broader group of online sex offending. There is a growing literature on the characteristic of the online sex offenders. According to Seto, Cantor & Blanchard, 2006, the relevant risk recidivism factors common for all types of sexual offending include the presence of sexual deviance and antisocial tendencies or criminality for example generalist criminal history. The research in this area has shown that some well-established criminological factors such as offender age and having prior convictions are also relevant.
Given that [the applicant] belongs to the broad category of online sexual offenders, my risk assessment is based on a tool that was developed for child pornography offenders. The actuarial or non-actuarial tools that have been accepted for assessment for offline (contact) child sex offenders such as, Stable 2007, Static 99-R and RSVP have not been validated for the use of risk assessment of online sex offenders and therefore will not be used in this report.
(Footnote omitted)
While Dr Wojnarowska’s report goes into great detail about the various tests that she applied and how the applicant rated in each, she does not come to an overall conclusion as to the risk of the applicant reoffending. At paras 71 and 72 of her report she commented that:
The most relevant question in this case would be what is the risk of [the applicant] progressing to contact offending. The existing data on this topic suggest that most online offenders without a history of contact offences are unlikely to cross over into contact offences within 1 to 5 years after their index offence. The research in this area indicated that 12.2% of online offenders had an official history of contact offences.
The research suggests that the low rate of hands-on sexual offences among online offenders may have greater self-control than offline offenders. In [the applicant’s] case the fact that he has a history of non-sexual offending suggest the presence of antisocial personality traits and impulsivity which increases his risk of transgressing from online to offline sexual offending.
(Footnotes omitted)
Asked to comment on Dr McCue’s assessment of the applicant being a low risk of reoffending, Dr Wojnarowska advised:
I disagree with Dr McCue’s assessment that [the applicant] is a low risk of recidivism. In relation to the mitigating factors outlined by Dr McCue, I would require to assess [the applicant] and be provided with information related to his future plans, protective factors and the legal conditions he would be subject to if returned to Australia.
Dr Gosia Wojnarowska – report dated 5 April 2022 (R2)
In March 2022, Dr Wojnarowska was provided further information and documents, including a witness statement by the applicant dated March 2022, and was asked to provide an update of her earlier report. That update was Dr Wojnarowska’s report dated 5 April 2022.[37] Dr Wojnarowska made the following observations:
(a)The applicant is a ‘reportable offender’ in Western Australia under Section 6 of the Community Protection (Offender Reporting) Act 2004 and is required to report for 15 years as of 10 January 2019.
(b)While employment is a protective factor, the applicant advised that he intends to work in the family business until he is able to secure work in the mining industry and this may afford the applicant access to adolescent females and an opportunity to reoffend.
(c)While the applicant identifies his child as a protective factor, the applicant offended after the birth of his child.
(d)The completion of Cognitive Behavioural Therapy (CBT) was a positive step taken by the applicant and according to the information provided, he made some therapeutic gains. CBT is an appropriate form of treatment and is commonly recommended for sexual offenders in Australia. As there is no completion report available, it is difficult to ascertain what were the goals of treatment and whether he achieved all of them at a satisfactory level.
(e)The letter provided by the nurse practitioner who has been treating the applicant for 12 months indicates that the applicant had been compliant with treatment, including his medications, that his mental state was stable, that he was consistent in the level of his disclosure and that he was perceived to be open and honest in his communication. It also indicated that the applicant had been motivated to attend his psychology studies and applied himself accordingly. It appears that he has been abstinent from illicit substances and there was no evidence that the applicant has been using alcohol excessively, however, no drug screening results were provided. The letter also indicates that there has been an improvement in his coping strategies.
(f)In relation to the applicant’s version of events which gave rise to his breach of bail conviction, Dr Wojnarowska’s view is that the incident suggests impaired judgement and lack of insight and it is still unclear what his intention was when he met with the female. His version lacks credibility.
(g)He has demonstrated prosocial attitudes since his deportation and appears to have realistic future plans. For those reason in her view, his risk is now low to medium rather than medium as previously assessed.
(h)With his family supports and regular reporting this level of risk can be managed in the community.
[37]R2.
In FYBR the Full Court considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65),[72] a predecessor to Directions 79 and 90: see [20] above. The relevant provisions of Direction 90 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular that dealing with the expectations of the Australian community (para 8.4(1)) were expanded by Direction 90.
[72]Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[73] at [156], I summarised the effect of the Full Court’s judgment in FYBR, as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[73][2020] AATA 3953.
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In that case Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBRv Minister for Home Affairs,[74] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90. Due to the application of the “norm”, as it is now referred to in para 8.4(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the person’s visa.
[74][2019] FCA 500
In relation to the applicant’s submission made at para 75 of his SFIC (see [132] above), I assume that the applicant meant to refer to “cancellation” rather than “revocation” (the latter of which in the context of s 501CA(4) of the Act means revocation of the cancellation of the visa). The proposition appears to be that, while accepting that this consideration “in every case effectively, … weighs against the revocation of the cancellation” (see [131] above), it is not to weigh against revocation in the present case. I do not see how [39] of DKXY supports the applicant’s contention as that paragraph deals with an unrelated issue. While [42] of Perry J’s decision at first instance FYBR, does refer to the consideration weighing in favour of refusing the revocation of the cancellation, “at least in most cases”, I note that her Honour was there dealing with Direction 65 which did not include the specific reference to the “norm” included in Direction 90. Insofar as her Honour’s words “in at least most cases”, and the use of the word “norm” in Direction 90[75] leave open the possibility that in some cases the consideration would not weigh against the revocation of the cancellation of the visa, I do not accept that the circumstances cited by the applicant, or the circumstances of this case or the applicant more generally, are such that the norm should not apply.
[75]See definition of “norm”: Macquarie Dictionary: “a standard, model, pattern”, Oxford English Dictionary: “that which is a model or a pattern; a type, a standard”)
I must determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) of Direction 90 (see [130] above), which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f) of Direction 90.
The applicant’s grooming and using a carriage service to transmit indecent communications offences come within the category of offences in para 8.4(2)(c) of Direction 90 as both crimes committed against children and crimes of a sexual nature. These offences, accordingly, raise “serious character concerns” (para 8.4(2)).
The nature of the offences that the applicant has committed means that this consideration weighs against revocation of the cancellation of the applicant’s visa regardless of whether the applicant poses a measurable risk of causing harm to the community (para 8.4(3)). Given the nature and seriousness of the offences, this consideration weighs moderately to heavily against the revocation of the cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests
International non-refoulement obligations (para 9.1)
This consideration is not relevant in this case.
Extent of impediments if removed (para 9.2)
The applicant made no submissions on this consideration in his SFIC. I asked the applicant’s counsel in opening whether this consideration weighed in favour of revocation of the cancellation of the applicant’s visa. The applicant’s counsel’s answer was “not greatly”. Mr Crowley expanded:[76]
He is working, he does have a (indistinct). We shouldn’t take a sterile view of that though, because obviously, he’s there without any family and no support. I think there is a paternal aunt, but I’m not sure that there is any real relationship there. But the reality is, he’s a fairly needy man who lacks self-confidence and esteem.
He’s managed to get himself - he’s largely been employed in the last six years but that’s - it’s not particularly secure. He’s a scaffolder and I think he works through agencies largely which means that his work, although relatively consistent, is not continuous.
And he’s not been - he’s not been able to afford his own accommodation without the help of his parents which is not going –
…
…I don’t know if you caught my answer to your question about the extent of impediments of being removed but we say it probably is a factor in favour of revocation but it’s not a great weight because, I mean, he is coping, it’s just not ideal.
[76]Transcript day 1 p 12 [25]-[35]; p 13 [25]..
The Minister at para 60 of his SFIC made the submission that the evidence shows that the applicant has been able to establish a meaningful life in the United Kingdom. He has gained employment, maintained housing, accessed medical services and undertaken studies. He has an aunt who lives proximate to him and he is able to understand and engage in the social, cultural and linguistic mores of the United Kingdom.
The Minister further submitted that subject to the travel restrictions imposed by that pandemic, the Applicant has been able to receive visits from members of his family and there is no suggestion that such visits will cease in the future. In that regard I note that at the time of the hearing the applicant’s parents were with him in the United Kingdom and gave evidence via video from the applicant’s home in the United Kingdom.
In opening, counsel for the Minister put the Minister’s position as follows:
So at present, as the evidence stands, although it’s a consideration that needs to be gone to, there would seem to be no evidence presently that would weigh in favour of non-revocation. As it then comes to the other considerations, the question of impediments in my submission is not relevant and, if anything, the fact that the applicant has now been in the United Kingdom for some two years or more, and has been able to establish and maintain himself, would, if anything, suggest that either it’s not relevant or that’s a reason perhaps as to why it’s not necessary, or there is no reason to revoke.
The applicant expanded further on his life in the United Kingdom in his evidence at the hearing. He said that he was 33 percent through his A levels to get to university. Speaking about his wishes for his life, he said:
... But that’s the lifestyle I wanted, and I’ve never been afraid of hard labour. So I started scaffolding and as I started getting older, when I got here throughout the pandemic, I started studying health and safety. I got myself 23 certificates in health and safety. And then I thought while I was doing my CBT therapy with my therapist,…
…
I always had a passion about psychology, the way I got in - I got inspired by the way - you know, when you first step into it, you don’t really - you think, you know, what’s talking going to do about it but it actually really surprised me towards the end and I was inspired by Dr McCue and every other mental health practitioner that I’ve had along the lines. So I thought if I’ve just done distance learning online throughout the pandemic and achieved 23 certificates, project manager, construction, design manager, asbestos awareness, senior first aid, firefighter, I’m a qualified firefighter now as well, you know, if I can do that, why don’t I reach for the sky and do something that I really, really have a passion about and that’s how I decided to start doing the courses through Lead Academy which got me my psychology wellbeing practice, my advanced diploma and my substance abuse.
I agree with the Minister’s contention that the evidence shows that the applicant seems to have had no impediments, or none that he has not been able to overcome, in establishing and maintaining basic living standards, in the context of what is generally available to citizens of the United Kingdom. If anything, the applicant seems to have been more productive and focused since he has returned to the United Kingdom.
Neither party made a submission on this consideration in their closing submissions.
I find that this consideration does not weigh in favour of revoking the cancellation of the applicant’s visa.
Impact on victims (para 9.3)
Neither party made submission on this consideration. There is no evidence of the impact that a decision to revoke or not to revoke the cancellation of the applicant’s visa would have on the applicant’s victims. Insofar as the impact of a decision on others as identified in para 9.3(1) of Direction 90 is relevant, they are taken into account under other considerations (both primary and “other”) under Direction 90.
I find that this is not a relevant consideration in the present case.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non‑citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant made the following contentions in his SFIC:
(a)The applicant has spent, effectively, all his adult and teenage life in Australia. He has no meaningful family in the United Kingdom.
(b)There is a very visceral tear in the fabric of the applicant’s family.
(c)The applicant’s mother will be impacted physically and mentally. She noted that her “health has suffered immensely in the past few years”. The applicant’s mother is particularly close to the applicant. She is worried sick about her son in the United Kingdom and she is not coping well.
(d)The applicant has a large and close-knit family. It is not necessary to separately identify the effect on applicant’s siblings and adult cousins, suffice to say, as the applicant’s father put it, ‘our lives have not been the same since he went to prison … We miss him so much.’
The Minister’s SFIC made the flowing contentions:
(a)The applicant arrived in Australia at the age of 13. He remained living here until February 2020. His immediate family is here. It can be accepted that the applicant has strong and enduring ties to Australia. That matter weighs in favour of revocation.
(b)However, in all of the circumstances of this matter, including those relevant to the primary considerations and the lack of impediments to the applicant being in the United Kingdom, this consideration does not outweigh those factors which support non-revocation.
As noted by the applicant in his SFIC, the applicant’s mother suffers from a number of health issues. In her statement dated 25 November 2021,[77] she said:
I am 62 years old and my husband is 59 we have both worked hard for many years to give ourselves and our children a good life in this beautiful country, they are all very happy here. Unfortunately, a few years ago I was told that I had pre-cancerous cells in my bowel but fortunately they were able to remove them, but I still must have frequent checks to make sure things are clear. My husband’s health is also not too good now and he often says to me that when [the applicant] comes home, he will be able to help him in the business, with the heavy loading and other heavy work that he can no longer do himself. He will then be employed by us in the business. If [the applicant] was to be deported, the impact on us and all the family would be enormous, and for him and us to lose [his son] for ever I cannot begin to imagine.
[77]R1, 21-3
In her statement dated 18 June 2021,[78] the applicant’s mother said:
Since [the applicant] was deported, my life has fallen apart, I and other members of the family feel as though it was like a bereavement. I know I am no longer the same person since he left. I have never been without any of my five children, and I feel as though I will never come to terms with it.
…
I want and need [the applicant] to be back here with his family in Australia, my life has not been the same since the first day he was taken to prison, and I can’t begin to think that he might not come back to us. I sometimes find myself getting out of bed during the night and sitting alone in the living room, thinking about the day we can go to the airport to bring him home, with his three brothers and sister waiting for him. I sometimes feel as though he might not survive if he is left in the UK alone, he only has one auntie that lives close to him in West Yorkshire, but he stays there for work. He often says to me that Australia is his home, and he longs to get back here.
[78]R1, 1183-4
In his statement dated 18 June 2021, the applicant’s stepfather said:
[The applicant’s] deportation has had a huge impact on me in the way that I have had to see what it has done to my whole family, life is not the same for any of us especially my wife and I, and the special time of the year such as Christmas. If [the applicant] was given his visa back, I know he would want to be employed in the family business which would enable him to continue his further education. I am now in my sixties and finding it hard to do the heavy lifting that is needed.
…
[The applicant’s] home and life is here with his family, our lives have not been the same since he went to prison. Myself, my wife and our other four children have never done anything but support him through the impact of his downfall. We miss him so much.
As noted above, the applicant’s parents were in the United Kingdom with the applicant at the time of the hearing. The applicant’s mother’s evidence at the hearing was that they had also been in the United Kingdom at the time the applicant voluntarily returned to the United Kingdom in 2020. Her evidence was that the applicant “followed us because he found out we were here. So he came over here with us”.[79]
[79]Transcript day 3 p 142.
Her evidence at the hearing was:[80]
I need him back because my life and the whole family’s lives - but in particularly mine - hasn’t been the same since the day he left. I just - I just - it’s not the same. It’s like a bereavement. A big hole has been left in the family. He’s got his other two brothers as well – [the applicant’s step-father’s] sons - and they’re as close to MKBL as his biological siblings. And we all just miss him so much.
[80]Transcript day 3 p 144.
Asked by counsel whether she had considered the prospect of the applicant not being allowed to return to Australia, the applicant’s mother’s evidence was:[81]
Yes, I have. And the thing is I feel - during the time when MKBL has been taken away from us, I ended up on blood pressure tablets, all right. And now I’m actually scared that if he doesn’t come back to us, I feel as though one day soon I’ll probably have a heart attack. That’s how I feel.
[81]Transcript day 3 p 144.
Asked whether she and her husband would be able to keep visiting the applicant in the UK if he was not allowed to return to Australia, the applicant’s mother’s evidence was that:
We will visit him, but it won’t be often and it will be when funds allow. But, yes, we would come back to visit him, but I can say it would not be often.[82]
[82]Transcript day 3 p 145.
The applicant’s siblings provided statements attesting to their closeness to the applicant and that they would suffer emotionally if the applicant were not allowed to return to Australia. I accept that the impact on the applicant’s immediate family if the applicant were prevented from returning to Australia would be significant. The impact would mainly be emotional, however, I appreciate that given the applicant’s mother’s health issues, physical and psychological, the impact on her may by more than just emotional.
I also accept that the applicant has significant ties to the Australian community outside his immediate family. The number of letters and statement of support provided by friends, work colleagues and former employers attests to that fact. The applicant arrived in Australia as a 13-year-old in 1996 and his first recorded conviction was in February 2005. It could not be said, therefore, that the applicant began offending soon after he arrived (para 9.4.1(2)(a)((i) of Direction 90) and it is the case that the applicant has contributed to the community through his employment which was fairly regular until around 2013 when the methamphetamine started to compromise his employment (see [111] above). I also note that the applicant relocated to the United Kingdom for two years in 2012-2014 (see [10] above)
Impact on Australian business
Paragraph 9.4.2 of Direction 90 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant’s SFIC concedes that while the applicant not being able to return to Australia will not impact a major infrastructure project or something of a national concern, the applicant’s family business has “provided a home and education for 5 children”. The applicant’s parents are growing old, and the applicant could fill a role in the business if he were allowed to return. The applicant’s stepfather’s evidence was to the same effect.
The Minister’s SFIC made the flowing submission in relation to this consideration:
Insofar as there is some limited evidence about the ability of the Applicant to gain employment in his parent’s business, there is insufficient evidence to establish that there is a need for the Applicant to do so. Further, even if that need were established it could not be said that non-revocation would significantly compromise the delivery of a major project or important service in Australia
I agree with the applicant that this is a consideration which could weigh in favour of revocation of the cancellation of the applicant’s visa, but I agree with the Minister’s contention that there is no evidence that someone other than the applicant could undertake the work that the applicant might do in his stepfather’s business. I do not consider that because the business is apparently considered to be a “family business”, that means that only family members can be employed in the business. That becomes a personal choice rather than a decision going to the interests of the business.
While I do not agree with the Minister’s apparent contention that this consideration only applies to the compromise of the delivery of a major project or important service in Australia,[83] I find that there is insufficient evidence for me to give any weight to this consideration of impact on business interests.
[83]See Arachchi and Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1311 at [66]-[73] (Rangiah J).
This consideration, links to the Australian community, as the Minister concedes, weighs in favour of revocation of the cancellation of the applicant’s visa. The impact on the applicant’s immediate family, particularly the applicant’s mother, will be significant. I assess that moderate to heavy weight should be given to this consideration
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [24] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[84] and the Full Court judgment in Minister for Home Affairs v HSKJ.[85]
[84][2018] FCA 594
[85][2018] FCAFC 217; (2018) 266 FCR 591
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[86] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[86][2021] FCA 775
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV and Minister for Home Affairs at [164] summarised the legal position as follows:[87]
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
[87][2019] AATA 91
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs moderately against revocation of the cancellation of the applicant’s visa (see [97] above).
The second primary consideration, family violence, is not relevant in the present case.
The third primary consideration, the best interests of minor children weighs in favour of revocation of the cancellation of the applicant’s visa, however, only minor weight can be given to this consideration (see [129] above).
The fourth primary consideration, the expectations of the Australian community, weighs moderately to heavily against the revocation of the cancellation of the applicant’s visa (see [143] above).
In relation to the relevant, or potentially relevant, “other considerations” identified in Direction 90, I find that of the considerations, extent of impediments if removed, does not weigh in favour of revoking the cancellation of the applicant’s visa (see [153] above).
The consideration of links to the Australian community, weighs in favour of revocation of the cancellation of the applicant’s visa and I assess that moderate to heavy weight should be given to that consideration (see [174] above
I am mindful that para 7(2) of Direction 90 states that primary considerations should generally be given greater weight than the other considerations (see [24] above). Nothing has been presented which would cause me to find that that general principle should not apply in the present case. Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the primary considerations, the protection of the Australian community and the expectations of the Australian community, outweigh the considerations in favour of revocation, the best interests of minor children and links to the Australian community. Accordingly, I find that there is not another reason to revoke the cancellation of the applicant’s visa.
DECISION
The decision of the delegate of the Minister dated 26 August 2019 not to revoke the cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa pursuant to s 501CA(4) of the Act is affirmed.
I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...........[Sgd]............................................................
Associate
Dated: 24 February 2023
Dates of hearing: 6-8 April 2022; 11 April 2022 Solicitors for the Applicant: Mr H Glenister, William Gerard Legal Counsel for the Respondent: Ms C Taggart, Francis Burt Chambers Solicitors for the Respondent: Mr J Papalia, Australian Government Solicitor
Applicant’s SFIC para [6].
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