MKJQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

MKJQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4247 (15 December 2023)
Division:GENERAL DIVISION
File Number: 2023/7095
Re:MKJQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:15 December 2023
Date of written reasons: 22 December 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 26 September 2023 that the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.
...........[SGD].............................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act 1958 (Cth) – non-revocation of mandatory visa cancellation – Direction No.99 – protection of Australian community – historic sexual offences against children – long term resident of Australia - family violence committed by the non-citizen – strength, nature and duration of ties to Australia – best interests of minor children in Australia affected by the decision – expectations of the Australian community – extent of impediments if removed – impact on victims – decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Secondary Materials
Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
22 December 2023

MKJQ (the Applicant) is a citizen of Chile. He seeks review of a decision by a delegate of the Minister not to revoke the mandatory cancellation of his Resident Return (Class BB) (Subclass 155) visa under provisions of the Migration Act 1958 (Cth) (the Act).
The Applicant migrated to Australia with his then wife and two children in February 1987.[1] He has lived in Australia continuously for more than 36 years. His first marriage ended in about 1991. He met his current wife in 1993, and they married in 1997. They have two Australian children, KS and ES, born in 1998 and 2000 respectively.
[1] G28, 169.
Between July 1998 and May 2009, the Applicant engaged in acts of sexual molestation of three of his wife’s nieces, and one of their friend’s children, to whom he was not related.[2] His offending was revealed when a victim came forward in her early twenties. In January 2017, he was arrested and interviewed. Charges were laid under provisions of the Crimes Act 1900 (NSW). He was granted bail.[3]
[2] G7, 45.
[3] See ss 61M(1) and 61M(2).
On 14 February 2018, he entered a plea of guilty in the Local Court of New South Wales on seven counts of aggravated indecent assault of a child under the age of 16, four counts of indecent assault with a child under the age of 10 years and the indecent assault of a person under the age of 16 years (DV). He was committed for sentence and granted bail.
On 18 September 2018, he was sentenced in the District Court of New South Wales to an aggregate term of nine years and four months imprisonment, with a non-parole period of five years.[4]
[4] G7, 45.
On 5 March 2019, the Minister’s department notified him that his visa had been mandatorily cancelled under subsection 501(3A) of the Act and extended an invitation for him to make representations about revocation of the mandatory cancellation decision.[5] On 25 March 2019, he made such representations.[6]
[5] G29.
[6] G11.
On 26 September 2023, a delegate of the Minister decided, under subsection 501CA(4) of the Act, not to revoke the cancellation of the Applicant’s visa (the reviewable decision). He was notified of the decision on 27 September 2023.[7]
[7] G2, G3.
On 27 September 2023, he applied to the Tribunal for review of the delegate’s decision.[8]
[8] G1.
The matter was heard by the Tribunal on 6, 7 and 14 December 2023.[9]
[9] Pursuant to Migration Act, s 500(6L)(c), the Tribunal was required to decide the matter by 20 December 2023.
The Applicant was represented by Mr D. Godwin, instructed by Ms E. Trotter of Brett Slater Solicitors. The Minister was represented by Mr M. Sheedy of Sparke Helmore Lawyers.
On 15 December 2023, the parties were notified that the Tribunal had decided to set aside the reviewable decision, with reasons to follow. I now publish my reasons.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a)Applicant’s Statement of Facts, Issues and Contentions (ASFIC) filed on 6 November 2023
(b)Applicant’s response to Respondent’s submissions filed on 1 December 2023
(c)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed on 24 November 2023
The Applicant’s materials:
(d)Statutory declaration of the Applicant filed on 6 November 2023
(e)Statutory declaration of Paul Kennedy filed on 6 November 2023
(f)Statutory declaration of Fr Nicola Falzun filed on 6 November 2023
(g)Statutory declarations of ES filed on 6 November 2023 and 11 December 2023
(h)Statutory declarations of KS filed on 6 November 2023 and 11 December 2023
(i)Report and supplementary report of Tim Watson-Munro filed on 1 December 2023
(j)PAYG and income tax returns filed on 1 December 2023
(k)Digital National Police Certificate filed on 1 December 2023
(l)Corrective Services list of inmate visitations filed on 1 December 2023
(m)Applicant’s health records filed on 1 December 2023
(n)Analysis of health records filed on 1 December 2023
(o)Handwritten note from treating physician filed on 1 December 2023
(p)Cover letter filed on 11 December 2023
(q)Medical certificate filed on 11 December 2023
(r)Applicant’s Parole Order filed on 11 December 2023
The Respondent’s materials:
(a)Respondent’s Tender Bundle (RTB) filed on 24 November 2023
(b)Extracts of the Social Security Guide filed on 6 December 2023
(c)The Social Security (International Agreements) Act 1999 (Cth) filed on 6 December 2023
Other:
(a)Section 501G Documents filed on 15 September 2023
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
As noted, on 18 September 2018, the Applicant was sentenced in the District Court of New South Wales to an aggregate term of imprisonment of nine years and four months, with a non-parole period of five years.[10] By reason of the combined operation of subsections 501(6)(a) and 501(7)(c) of the Act, I find that the Applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. I therefore turn to consider whether there is ‘another reason why the original decision should be revoked’.
[10] Nationally Coordinated Criminal History Check: G6, 33.
THE OFFENDING RECORD
On 14 February 1992, the Applicant was arrested by an off-duty policeman in connection with an alleged assault committed on a train. On 26 May 1992, he was convicted of assault in the Local Court. He appealed to the District Court, where the matter was heard de novo.
On 8 June 1993, he appeared before Judge Kinchington. The Applicant’s evidence was that he boarded a crowded train, sat next to a young woman, and fell asleep. He was woken by her loud exclamations. She loudly proclaimed that he had touched her thigh. He was embarrassed because of her strong language (which the judge described as ‘colourful’) and left the train at the next stop.[11]
[11] RTB, 22.
The court found that he intentionally touched and squeezed her thigh. The court accepted the account given by the complainant and did not accept his claim that he was unaware of any physical contact. The court noted that he was taking medication for cancer, and that he had no prior convictions. He was trying to sell his business at the time of the incident, and subsequently fell into bankruptcy. He was bound over to be of good behaviour for 12 months upon entering a self-recognisance of $500.[12]
[12] TB1, 26; G7, 44.
According to his criminal history, he was convicted on 6 April 1994 by the Parramatta Local Court for an indecent assault committed on 23 February 1994.[13] He was sentenced to 100 hours of community service. According to summons material, no action was taken on the Applicant’s breach of the good behaviour bond imposed in 1993.[14] There is no information in the materials before the Tribunal relating to this offending.
[13] TB1, 19; G7, 44.
[14] Per Nield DCJ, order made on 14 June 1994; TB1, 13.
The remaining entries in the criminal record relate to the offending which led to the cancellation of his visa. As noted above, between July 1998 and May 2009, he engaged in acts of sexual molestation against three of his wife’s nieces, and a child of his friend, four children in all.[15] In January 2017, he was arrested and interviewed. After pleading guilty in the Local Court, he was granted bail. On 18 September 2018, he was sentenced by Judge Marien SC in the District Court of New South Wales to an aggregate term of nine years and four months imprisonment, with a non-parole period of five years.[16] The sentence commenced on 25 July 2018, allowing for two previous days in custody. As noted by Marien J:
All of the charges, with the exception of the single charge relating to the victim AB, are representative charges. That is, the particular incidents as charged were part of an ongoing pattern of sexual abuse by the offender of the victims. He, of course, is not to be sentenced or punished for other occasions on which similar events occurred, but the fact that there were these other occasions places the charges for which he is to be sentenced in the proper context and also of course clearly indicates that these charges, with the exception of the charge relating to AB, were not isolated events.[17]
[15] G7, 45.
[16] G7, 45.
[17] G7, 53.
I note in passing that the law changed during his sentencing, to require a sentence to be imposed according to contemporary sentencing patterns.[18] Marien J was unable to discern a sentencing pattern for some of the offences impacted by the change, and the Crown did not provide information on current sentencing practices.[19] His Honour therefore applied general sentencing principles.[20]
[18] G7, 65. Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA.
[19] G7, 66-67.
[20] G7, 67.
The learned judge relied upon reports prepared by Dr E. Kwok,[21] and by Dr O. Nielssen dated 21 November 2017.[22] The judge found, based on these reports, that the prospect of his reoffending was low.[23]
[21] G15, 104.
[22] G14, 98.
[23] G7, 62.
In her report, Dr Kwok stated:
59. In response to why he sexually assaulted the children, he responded, “One day it just came like that to my brain.” He said that he did not have sexual thoughts about children before his first offence. He also said that he could not understand the reasons for assaulting the children but indicated that he received a sense of physical pleasure from it. He indicated that he did not keep thinking about it afterwards and indicated that he was satisfied with the sexual intimacy with his wife during his period of offending.
60. [MKJQ] did not report any specific sexual thoughts that relate to touching the children. He also denied having sexual thoughts about children between the offences. According to [MKJQ], no forethought or planning were involved in his offences.
61. In relation to why he stopped offending, [MKJQ] stated that his own daughter “was growing up” and she was eleven years old when “one day I thought why am I doing this …what if something like that happen to my daughter?” [MKJQ] claimed that it was not hard to stop offending after this because he did not feel sexual towards the children.
62. [MKJQ] claimed that he had not assaulted the children “for a few years” by the time he was arrested. He stated that he was first arrested for offences against his nieces and he then disclosed to his wife that their family friend’s daughter was also a victim.
63. [MKJQ] denied any sexual behaviours with his own children.
…
74. Taking into account both static and dynamic risk factors, [MKJQ] is considered to pose a below average risk of re-offence. He does not currently present as an individual who is sexually deviant but his sexual acts were opportunistic and intended for the purpose of obtaining sexual gratification. [MKJQ] is likely to have difficulties managing impulses and identifying high-risk situations. Furthermore, although a significant portion of child sexual abuse victims do not exhibit clinical levels of symptoms, victims have been shown to present significantly more posttraumatic stress and dissociation symptoms than non-abused children or than victims of other forms of trauma. Given this and [MKJQ]’s reports of intrusive memories of his foster brother, [MKJQ] presents as an individual with a number of psychological needs due to his early experiences of trauma.
…
80. Based on the assessment of static and dynamic rick factors, I have assessed [MKJQ] as posing a below average risk of re-offence. However, an offending period of eleven years suggests entrenched deviant interests and his facile explanation suggests that he is not really able to predict his behaviour. As such, [MKJQ] would still benefit from psychological intervention. He recognised the need for personal change and presently expresses a high level of commitment to psychological therapy.
Marien J noted:
Also tendered in the case of the offender is a report of Dr Olav Nielssen, Psychiatrist, dated 18 November 2017. Dr Nielssen assessed the offender as being at a low risk of further offending based on the absence of the main criminogenic risk factors of a pattern of anti-social behaviour or a substance abuse disorder associated with criminal behaviour. Dr Nielssen states that the offender reported long-standing guilt over his offences and expressed what Dr Nielssen states seem to be a high degree of contrition and remorse for his behaviour. Dr Nielssen states that there was no suggestion by the offender of denying or minimising his criminal conduct. Dr Nielssen further states that the offender was assessed to be of normal intelligence and capable of participating in learned based counselling.
Dr Nielssen stated:
Based on the history elicited and the observations made during the recent interview [MKJQ] was not thought to meet the accepted criteria for the diagnosis of any psychiatric disorder. There was no history of developmental delay, brain injury, episodes of psychotic illness, episodes of disabling mood disorder, or symptoms consistent with the syndrome of any other psychiatric disorder. There was no history of substance use disorder, or any pattern of antisocial conduct.
The diagnosis of an underlying depressive illness was considered, on the basis of [MKJQ]'s presentation. However, he did not describe the full syndrome of depression at the time of the interview or during his adult life, and his mood was assessed to be in proportion to his circumstances and the topics covered during the interview.
Consideration was given to the possibility that [MKJQ] has a disorder of abnormal sexual interest (a paraphilia), such as heterosexual paedophilia, on the basis of the history of offences involving several female children that took place over a period of eight years. [MKJQ] denied having a specific sexual attraction to pre-pubescent children, and reported two marriages and relationships with a number of women prior to meeting his second wife. [MKJQ] reported that his behaviour might have been influenced by his own experience of having been molested as a child by his older foster brother, rather than a specific attraction to female children, but was at a loss to explain the connection.
Notwithstanding the pattern of offences, [MKJQ] was assessed as carrying a low risk of further offending, based on the absence of the main criminogenic risk factors of a pattern of antisocial behaviour or a substance abuse disorder associated with criminal behaviour. He would also be assessed to have a comparatively low probability of further offending using the most commonly used actuarial risk assessment instrument, Static 99R (scoring sheet attached). He would score -1 for his age (dropping to -3 when he turns 60 next February, indicating perhaps the fatuous nature of the scale, which is nevertheless the most widely used risk assessment instrument and has the largest body of supporting data), 1 for his previous offence, 1 for the conviction for assault in 1992, and 1 for having unrelated victims, giving him a total score of 2 out of a maximum score of 12, dropping to 0 out of 12 next year. Sexual offenders as a group have a lower rate of recidivism than other categories of offender, and the rate of recidivism declines with age, as reflected in the revised scoring system and the fact that many of the offences before the courts are historic in nature.
[MKJQ] reported longstanding guilt over his offences and expressed what seemed to be a high degree of contrition and remorse for his behaviour.
[MKJQ] indicated that he was willing to participate in any sexual offender counselling programs offered to him, and would be eligible for the custody based intensive counselling program (CUBIT). There was no suggestion of denying or minimising his conduct, and he was assessed to be of normal intelligence and capable to participating in learning based counselling.[24]
[24] G15, 103.
THE HEARING
The Applicant gave evidence and adopted the contents of his statements made on 6 November 2023 and 5 April 2022.[25] He was then cross-examined by Mr Sheedy.
[25] G18, 118.
The Applicant stated that he had lived in Australia since February 1987, and that he had not left the country apart from two short trips to Vietnam.
He only had a vague recollection about his earlier offending in 1992 and 1994. He was taken to his statement of 6 November 2023, wherein he stated that he was convicted of assault in 1992 and indecent assault in 1994.[26] He stated that he could not confidently recall the circumstances surrounding the assault and believed that it may have been in relation to an altercation at the casino. As to the charge of indecent assault, he stated that he was heavily medicated at the time and was therefore not sure if there was a sexual intention or not. In his oral evidence he reiterated that at the time of the incident on the train, he was heavily medicated, depressed because his wife had been unfaithful, and was under financial pressure which subsequently led to his bankruptcy.[27] He effectively maintained his innocence with respect to this incident.
[26] Applicant’s Statement, [7].
[27] TB1, 21.
He admitted that he had committed the offences that gave rise to his visa cancellation. He said that had not reoffended since 2009. He said that it was never his plan to assault children, that ‘it just happened’. He said that he was having some erectile dysfunction and hid it from his wife. It was then that he did to his ‘nieces what [his stepbrother] did to me when I was little’. He accepted that he got pleasure from it.
He was strenuously cross-examined about his degree of remorse. He said that he was remorseful. When pressed, he said that he did not necessarily agree with all the charges and facts on which they were based. He said that he did not do it in the way suggested. He said that he did exactly what was done to him as a little boy. Even so, he just agreed with all of the charges and pleaded guilty. He was asked why he declined to participate in a recorded interview when he was arrested. He said that he did not have the support of a lawyer. He said that when he met his lawyer, he instructed him to plead not guilty to all the charges. His evidence was that his lawyer told him to ‘fight’ the charges, but he decided it was better for the victims if he pleaded guilty. The Applicant said that he pleaded guilty to spare his victims from further trauma.

He was asked about a diagnosis of frotteurism made by a psychiatrist.[28] This diagnosis is referred to in a report prepared by the NSW Probation Service on 8 June 1994.[29] In that report the psychiatrist stated:
[I]t is my view that while [MKJQ]'s Behaviour is consistent with a psychiatric diagnosis of sexual paraphilia (Frotteurism), his paraphilia behaviours are of a recent origin and best conceptualised as a response to the stresses experienced over the last 2 year period, namely his testicular cancer.
[28] The cluster of behaviours included under the rubric of paraphilic disorder include maladaptive behaviours such as frotteurism, voyeurism, machoism, exhibitionism, fetishism, masochism, and paedophilic disorder: See, for example, America Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders Fiftih Edition (Text revised) (‘DSM-5-TR’), 779, 786-788.
[29] TB1, 10.
He said that he had only recently become aware of the fact that this diagnosis had been made and what the term meant.
He was asked about the present state of his marriage. He said that his wife was Vietnamese born but an Australian citizen. There was strain in his marriage, but they did message each other occasionally. He agreed that sometimes she did not want to talk to him.[30] He said that her attitude was that he had to get home and demonstrate his reform.
[30] See for example, file note 23 September 2022: TB3, 193.
He was taken to various file notes by Corrective Services made in late 2022 and early 2023 suggesting that he was estranged from his wife. She was not speaking to him, and he was deeply concerned.[31] He said that he was speaking to her in January 2023, but as recently as October 2023 he messaged her, and she did not respond. He said that this situation carried through to the present. He emphasised that she had not ended the relationship. He said, ‘she is waiting for me at home’.
[31] TB3, 193, 200,
Mr Sheedy asked him about his health problems. He asked about the report dated 23 January 2020 by the NSW Justice Health and Forensic Mental Health Network. According to this report:
Neuropsychological testing results received from Caitlin Dawes (neuropsychologist). Suggests underlying young onset neurodegenerative process. MRI Brain referral sent to MAU.[32]
[32] G17, 117. NSW Justice Health and Forensic Mental Health Network file note dated 23 January 2020.
He said that he was diagnosed with dementia in 2020 and it was being monitored. He said that his supervisor at the prison was aware of his dementia and assisted him. He made notes to assist with any memory lapse, as suggested by his neuropsychologist. His cognitive performance was periodically affected. Sometimes he was fine but at other times he forgot things.
He was also asked about supports that might be available to him in Chile were he to be returned. He stated that he would not be eligible for the pension, having not contributed to the statutory scheme. He also said that he had no friends or family in Chile that could support him.
The Applicant’s adult children appeared before the Tribunal.
KS, the Applicant’s son, provided statements to the Tribunal. He said that if he was deprived of his father, it would be very tough for him. He was not sure how he would cope. He planned to get married and raise a family. He had a four-year relationship with a social worker. She worked full time. He was currently employed in casual work, managing a car park. He was close to graduating as an engineer. His partner was struggling financially and would not be able to help him if he was also struggling financially.
ES, the Applicant’s daughter, provided two statements. She said she would be badly affected if her father was removed. Her mother worked full-time. She was switching degrees. She had a large student debt of about $32,000. She was currently working casually. She used to work as a tutor. She had a three-year relationship.
Mr T. Watson-Munro, forensic psychologist, provided a report dated 8 November 2023, and a supplementary report dated 1 December 2023. He appeared before the Tribunal and adopted the contents of his report. He noted that the period of offending was confined to three periods that ended some 14 years ago. These were historic sex crimes. It was the short compass of offending that made his behaviour unusual from a pathological perspective.
Mr Watson-Munro was taken to the report provided by Dr Kwok dated 23 July 2018, upon which the judge relied in sentencing, where Dr Kwok referred to the assessment of risk and stated that he would benefit from ongoing psychological intervention.[33] As a forensic psychologist, he did not ‘cavil’ with Dr Kwok’s assessment, although he did note that her report was written some five years ago. He conceded that if the Applicant was still preoccupied with frotteuristic thoughts, it would clearly impact on the risk of recidivism.
[33] G15, 104, at paras [74], [80].
He was also taken to Dr Nielssen’s report,[34] and to his Honour’s sentencing remarks.[35]
[34] G14, 98
[35] G7, 59.
Mr Watson-Munro noted that the Applicant was in poor health. He was on a range of medication for cardiovascular disease and suffered a heart attack in the past, in addition to being diagnosed with clots on his lungs. The Applicant feared that he would not receive the same level of care for his heart condition should he be returned to Chile, which was likely to strengthen his motivation not to reoffend. Mr Watson-Munro considered it unlikely that he would receive the type of treatment that he required if returned to Chile. When asked whether he had the expertise to make such a statement, he said that the psychological impact of the Applicant’s stated concerns was within his area of expertise. He considered it to be highly unlikely that he would receive effective or affordable psychological treatment in Chile. He was not an expert on the Chilean mental health services but expected that accessing such services as existed would be difficult and financially prohibitive.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(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 noncitizens 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 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.55(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 risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)
The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes “another reason” under paragraph 501CA(4)(b)(ii).
PC1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction states:
8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers 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.
The Direction further provides that violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence are viewed very seriously by the Australian government and the Australian community.
As noted above, on 18 September 2018, the Applicant was convicted of seven counts of aggravated indecent assault of a child under the age of 16, four counts of indecent assault with a child under the age of 10 years and the indecent assault of a person under the age of 16 years (DV). The offending took the form of rubbing his erect penis against the child’s body.[36] It did not involve skin on skin contact. The four minor female victims included three nieces from his second wife’s family, and an unrelated daughter of a family friend.[37] The offending was opportunistic in nature and occurred intermittently between July 1998 and May 2009.
[36] G7, 48-52.
[37] See Delegate’s reasons: G5, 18 at [17].
The sentencing judge considered that all but one of the offences committed by the Applicant fell below the mid-range of objective seriousness.[38] As to the remaining offence, where he made the victim touch his penis through clothing, this fell in the mid-range of objective seriousness.
[38] G7, 61.
In addition to the offending above, on 26 May 1992, he was convicted in the Downing Centre Local Court of assault, for which he received a $500 fine; and on 6 April 1994, he was convicted in the Parramatta Local Court of indecent assault and sentenced to 100 hours of community service. Neither of these offences involved children.
These first offences occurred not long after the breakdown of his first marriage. The second set of offences occurred between July 1998 and May 2009. There is no evidence of any criminal behaviour since 2009. In evidence, the Applicant said that his attitude towards his own past behaviour changed when his own children came to a certain age. He asked the Tribunal to accept that his propensity to reoffend was significantly mitigated by reason of this insight.
In assessing the nature and seriousness of the Applicant’s conduct, certain factors must be considered by the decision-maker, including the sentence imposed, the frequency of offending and/or whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending.
The Applicant denied that his behaviour had been repeated. It is accepted by the Minister that there is no record of any repeat offending since 2009, some 14 years ago. The last entry in his criminal record relates to the offending that took place between July 1998 and May 2009 and for which he was sentenced on 18 September 2018. Admittedly, he has been in prison or immigration detention since 27 July 2018 when his bail was revoked.[39]
[39] G7, 59.
In assessing the risk to the Australian community, paragraph 8.1.2 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 other 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 reoffending;
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).
The Applicant entered a plea of guilty to the offences and was sentenced to an aggregate term of 9 years and 4 months imprisonment, of which he served five years by way of a non-parole period.
As to the risk of recidivism, the sentencing judge stated:
Taking into account all the material before me, his evidence before me, the reports of Dr Kwok and Dr Nielssen I am satisfied that the offender has very favourable prospects of rehabilitation and that he is at a low risk of reoffending... I am satisfied that he has demonstrated profound remorse and contrition for his offending both from what he said to Dr Kwok particularly and Dr Nielssen and from what he said in evidence.[40]
[40] G7, 62.
The Applicant says that he did not know his mother and was abandoned by his father at the age of six and was sexually abused in his pre-teen years by his stepbrother. As a teenager he fended for himself and put himself through school by working, sometimes sleeping rough. There is no corroboration of this claim, but it was not disputed by the prosecution, and appears to have been accepted by the sentencing judge. Likewise, in these proceedings, the Minister’s representative did not challenge this claim. In sentencing the Applicant, his Honour stated:
[C]learly he did suffer a dysfunctional and abusive upbringing as a child which, as the High Court says in Bugmy,[41] must have some impact upon an offender for the rest of their lives. The High Court also said in Bugmy that that consideration should be given less weight where there is a concern about community protection but I have no such concern in this case because, as I have said, I find that the offender has very positive prospects of rehabilitation and that his risks of re-offending are low. In coming to that view I also take into account the age of the offender. He is now 60 years of age and that there has been no further offending since this last offence was committed the subject of these charges.[42] (Emphasis added)
[41] Bugmy v The Queen [2013] HCA 37
[42] G7, 64.
Mr Watson-Munro, an experienced forensic psychologist, provided a report dated 8 November 2023. He stated:
By way of background, I note that [MKJQ] was born in Chile and remains a citizen of Chile. In about 1962, his father gave him away to a neighbour, [CS]. She evidently had witnessed episodes of him being physically abused by his four step-sisters. [MKJQ] lived with [CS], her husband [AS] and their son [OS], whom allegedly sexually abused him between the ages of 6 and 8 years. It was in this context that [MKJQ] ran away from home, leading to a brief period of homelessness. He then enrolled himself in school and secured employment.
In about 1982, he met [ER] and they married a short time later. They share two children. In about February 1987, [MKJQ] migrated to Australia with his family. His marriage to [ER] ended in about 1991, against a backdrop of him learning that she was allegedly unfaithful. It would appear that 1991 was a critical year for [MKJQ], in the context of not only the breakdown of the marriage but attendant to this, the loss of his business and him being diagnosed with testicular cancer.
I note that in 1992, he was charged with an assault offence. In 1994, he was charged with a further indecent assault offence referable to touching the leg of a 27-year-old female on a train. [MKJQ] was convicted of the offence and completed a 100-hour community service penalty imposed by the Court. He stated at the time that he was heavily sedated with analgesic medications.
[MKJQ]met his current wife [redacted]in about 1993 and they married on 27 November 1997. They share two children, [KS] and [ES], who are now adults.
On 18 September 2018, [MKJQ] was found guilty of seven counts of aggravated indecent assault of a child under the age of 16, three counts of indecent assault with a child under the age of 10 years and the indecent assault of a person under the age of 16 years. I note his offending occurred intermittently between July 1998 and May 2009. The four minor female victims included three nieces from his wife’s family and the daughter of a family friend.
[MKJQ] entered a plea of guilty to the offences, in the context of high levels of remorse. As a consequence, he was sentenced to an aggregate term of 9 years and 4 months imprisonment of which he served 5 years by way of a non-parole period.
…
In terms of his circumstances, it is apparent that [MKJQ] was a victim of an abusive and dysfunctional upbringing. He is unaware who is birth mother is and he has no contact with his birth father, beyond briefly reconnecting with him when he was 18 years old. He stated that he was viewed by his birth father as “cheap labour”, in the context of him working for him without pay and him being made to sleep in a store room.
[MKJQ] currently suffers a number of health conditions, including a torn left knee meniscus, neurodegenerative processes and arthritis in some of his fingers and toes. He suffered a heart attack in 2012 and he suffered blood clots in his lungs.
In order to firm up on diagnostic considerations, I spoke with [MKJQ]’s children, [KS] and [ES] on 24 October 2023. I note that his wife remains supportive of him and has provided a statement to this effect dated 26 March 2019.
He has no contact with his older children from his first marriage.
…
At examination [MKJQ] expressed consistent and appropriate remorse for his past conduct. He stated that he is ashamed of what has occurred and to this end, expressed a strong motivation to not reoffend. I note that the offences, whilst serious, are now quite dated, in the context of them occurring between July 1998 and May 2009. His offending occurred in the context of family dynamics. There does not appear to be any suggestion of broader predatory sexual behaviour. Taking all factors into account, I believe that the likelihood of [MKJQ] reoffending in this manner is Low.[43]
[43] Report, 2-4.

With regard to the risk of reoffending arising from his proclivities towards frotteurism, I note Mr Watson-Munro’s supplementary report dated 1 December 2023 dealing with frotteurism, wherein it is stated:
Further to my recent report dated 8 November 2023, I note that you seek further comment regarding a letter of Mr Stewart McNaughton, Probation Officer, NSW Probation Service, Liverpool District Office of 8 June 1994. This relates to a psychiatric diagnosis in February 1994, suggesting that [MKJQ] satisfies the diagnostic criterial for sexual paraphilia (frotteurism).
1. I note that you seek my opinion as to whether this is a valid diagnosis and whether or not paraphilia is treatable.
2. Frotteurism is one of eight categories under the broader diagnostic category of Paraphilic Disorder. Frotteurism refers to the act of touching or rubbing one’s genitals against a non-consenting person in a sexual manner. It is one of eight Paraphilic Disorders. Treatment typically involves a combination of Cognitive Behaviour Therapy and supportive and motivational psychotherapy.
3. I note that [MKJQ] was charged in 1994 with indecent assault referable to touching the leg of a 27 year old female on a train. Upon conviction he completed a 100-hour community service penalty imposed by the Court. This clearly speaks to motivation to abide by the law at that time.
4. I note he was convicted in September 2018 of seven counts of aggravated indecent assault on a child under the age of 16, three counts of indecent assault with a child under the age of 10 years and the indecent assault of a person under the age of 16 years. The period of the offending, which occurred on an intermittent basis, was between July 1998 and May 2009. The victims included three nieces from his wife’s family and the daughter of a family friend. Against this backdrop, the earlier diagnosis of a Paraphilic Disorder (frotteurism), is reliable.
5. [MKJQ] has expressed motivation for treatment and attendant to this, has expressed consistent remorse for his past conduct. He expressed a strong motivation to not reoffend. I suggested that the likelihood of him reoffending in this manner is low, subject to him undertaking treatment as recommended.
6. There are a number of protective factors in this case, inclusive of his expressions of remorse, his motivation for treatment, his age and the general effluxion of time since his index offending occurred.
7. The treatment of paraphilic behaviour needs to be consistent and to be successful, requires a genuine motivation on behalf of the offender to address the dynamics surrounding the offending conduct. [MKJQ] is motivated for consistent treatment and has expressed what appears to be a strong and genuine motivation for help.[44] (Emphasis added)
[44] Mr Watson-Munro’s Reports, 1-2.
I also note the pre-release report prepared by Community Servicers NSW dated 2 May 2023, which stated:
Attitude to victim
[MKJQ] was able to reflect on the long term emotional, mental and psychological ramification of his offending behaviours, on the victims. He acknowledged that he undermined the trust the victims had in him as their uncle or as a trusted friend of the family, and he also acknowledged the implications his offending would have had on his own children’s relationship with the victim’s. [MKJQ]reflected that his offending behaviour would have inflicted long term trauma on the victims, which would likely require psychological intervention to address. Even with professional support, [MKJQ] acknowledged that the harms associated with being a victim of child sexual abuse, will remain with the victims for the rest of their lives.[45]
…
Overall assessment
[MKJQ] has utilised his time positively in custody by engaging in employment and educational opportunities. He is currently considered to be an unlawful non-citizen; however he is in the process of challenging his visa cancellation. His assessed low risk rating of committing a further sexual offence, makes him ineligible for custody based sex offender programs, however adequate interventions have been identified for his release that will seek to address his offending behaviour, and mitigate risk to the community. If [MKJQ]’s appeal of his visa cancellation is unsuccessful and he is deported, Community Corrections still remain of the view that there would be no further benefit to [MKJQ] remaining in custody. [46]
[45] TB3, 142.
[46] TB3, 146.
This was accepted by the Long Bay Parole Unit team leader, who stated:
The recommendation in favour of release is supported. [MKJQ] has a limited custodial pathway. Should [MKJQ] remain in Australia following a prospective parole order being made, suitable post-release plans are in place; where his offending behaviour and risks can be addressed.[47]
[47] TB3, 147.
The Parole Unit Manager also supported this recommendation:
[MKJQ] is not eligible for sex offender treatment in custody however he states he is willing to seek his own intervention once released to the community. He has a supportive family who are willing to provide stable ongoing accommodation should he be permitted to remain residing in Australia. He has demonstrated insight into his offending behaviour and does not deny any of the facts. As such, Ms Olsen’s recommendation for release to parole is supported.[48]
[48] TB3, 147.
The Applicant stands convicted of sexual crimes against children, and this is viewed very seriously by the Australian Government and community. The Respondent contends that the protection of the Australian community weighs very heavily against revocation, based on the objective seriousness of the Applicant’s offending, the significant harm that would occur were he to reoffend, and the tangible, and therefore unacceptable, risk of reoffending.
I accept that this consideration weighs heavily against revocation of the decision under review.
PC2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The Direction defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of that person’s family. The Direction provides that sexual assault and sexually abusive behaviour may constitute examples of family violence. Paragraph 8.2 of the Direction provides that where a non-citizen has been convicted of an offence involving family violence, the Tribunal must have regard to certain relevant factors, including the frequency of the conduct, the cumulative effect of repeated acts of family violence, and rehabilitation achieved at the time of the decision. These factors are said to reflect that the Government’s concerns are proportionate to the seriousness of the family violence committed by the non-citizen.
Self-evidently, the Applicant’s sexual offending against his nieces as described above, committed over a lengthy period, support the Respondent’s contention that this consideration must weigh very heavily against revocation. This is moderated to some extent by the 14 years that have elapsed since his last act of family violence, the level of remorse and insight demonstrated by the Applicant in respect of his offending, and his stated intention to engage in psychological rehabilitation.
PC3: STRENGTH, NATURE AND DURATION OF TIES
The Applicant’s adult children, KS and ES, gave powerful evidence in his favour. This is encapsulated in ES’s statutory declaration dated 6 November 2023, where she states:
19. The potential deportation of my father devastates me. Throughout this whole ordeal, the separation of our family unit and the uncertainty has already caused profound emotional distress on all of us. However, the fact that he is still here, albeit in Villawood, gives me a small sense of relief as we have relied on one another as a family for emotional support and stability. My father continues to give me guidance and support, which are valuable to my educational and personal development. His absence from Australia would make it considerably more challenging for me to pursue my education and future aspiration.
20. If he is forced to return to Chile, this would break my heart. For more than 20 years, we have been growing together as a family. This is what we know and what we love. We all need each other, and if a single piece of the puzzle is missing, everything falls apart and life is incomplete. Even though I visit him in Villawood and speak to him on the phone, not having him physically around us hurts. What we all want most is to reunite as a family, otherwise I fear that we would all fall apart, mentally and physically, as individuals.
The Minister accepts that KS and ES support him remaining in Australia, and that the non-revocation of the visa would financially and emotionally affect them. The Respondent accepts that the Applicant has provided financial support to them while in detention, but argues that there is nothing to suggest that he would not continue to do so if he were removed to Chile. I consider this to be somewhat unrealistic in light of the evidence given about the Applicant’s health.
The Respondent notes that the Applicant, if removed to Chile, could also maintain contact with his children through electronic or other means. The quality of such communications is palpably inferior to real human contact. KS also gave evidence that the Applicant is not proficient with technology and expressed a fear that this would result in them losing contact if he is returned to Chile.
The Applicant claims that his wife is supportive of him and will be adversely affected. The Applicant also contends that he has a realistic prospect of reconciliation with his wife. I note that between 1 October 2022 and 24 July 2023 (when he was transferred to the VIDC) there were many telephone and videoconference calls between them. In the absence of any written evidence from his wife and noting the Applicant’s evidence that she does not respond to his calls and texts at present, I accept that any weight given to this tie should be minimal. I also note that the Applicant has an extended family in Australia which includes his children from his first marriage. He hopes to reconnect with his oldest son and daughter if allowed to stay. In my opinion, the possibility however feint of some reconciliation with the children of his first marriage should be given some weight.
I note that the Applicant has lived in Australia for more than 36 years. Although by reason of his offending he has become more isolated in recent years, and he has been in custody since 27 July 2018.
His employment record is set out at paragraph 78 of his statement dated 6 November 2023. After first arriving in Australia, he worked in parquetry before opening his own butcher shop. After this business failed, he worked as a shoemaker from 1992 to 1999. Thereafter he worked in customer service at two carpark companies until resigning just prior to being sentenced in September 2018.
The Respondent contends that the Applicant’s positive contributions are mostly limited to his work. Although the Applicant has done some volunteering, namely teaching English to disabled people in a Smith Family program and coaching juniors in soccer, it appears that this only occurred in 1993 and 1994 and the Applicant has not otherwise engaged in charitable work.
The Minister contends that the length of time the Applicant has resided in Australia should be given less weight in circumstances where he was not resident in his formative years, having arrived as a 29-year-old.
It is also noted that he commenced offending just five years after his arrival.
I consider that this consideration weighs strongly in favour of revoking the mandatory cancellation decision.
PC4: BEST INTERESTS OF MINOR CHILDREN
The Applicant identifies his two minor grandchildren and his nine nieces and nephews as relevant to this consideration. Regarding his nieces and nephews, the Applicant appears to accept that his ties to his extended family are not relevant as they were the victims of his offending, and he does not have a relationship with them.
The Respondent submits that the Applicant has no relationship with his grandchildren, has not met his youngest grandson, and their parents already play parental roles for them. It is therefore unlikely that the Applicant will have a relationship with his grandchildren given that he has no relationship with their mother (his daughter), let alone a positive relationship given his risk of reoffending.
The Applicant accepts that the weight to be accorded to this consideration is, at its highest, limited to the possibility of the Applicant regaining contact with his grandchildren, through rekindling his relationship with his eldest daughter.
I accept that this consideration should be given very limited weight.
PC5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction provides that, where a non-citizen has engaged in serious conduct in breach of the Australian community’s expectation that they obey Australian laws, the community expects the Government to not allow that non-citizen to remain in Australia. That expectation applies regardless of the measureable risk of harm the non-citizen poses to the community. This norm is undoubtedly engaged in respect of the Applicant. However, as expressed in the principles in paragraph 5.2 of the Direction, the Australian community will generally afford a higher level of tolerance for the criminal offending of a non-citizen who has lived in Australia for most of their life. That level of tolerance increases with the length of time the non-citizen spends in the community.
The Minister contends, and I accept, that this primary consideration should weigh very heavily against revocation.
OC1: LEGAL CONSEQUENCES OF THE DECISION
The Minister accepts that the legal consequences of a decision not to revoke the mandatory cancellation are that the Applicant would be liable for removal from Australia as soon as reasonably practicable under section 198 of the Act and would be temporarily detained until his removal. The Minister also concedes that on the law as it currently stands, the Applicant would face exclusion from Australia if his visa remains cancelled, citing Special Return Criterion 5001. These are described as the ‘ordinary consequences’ of a decision not to revoke the mandatory cancellation of a non-citizen’s visa and should attract no material weight in favour of revocation. The Applicant does not dispute that these are the legal consequences of a decision not to revoke the mandatory cancellation.
OC2: EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2 provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Direction requires the decision-maker to take into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Minister contends that any weight given to this consideration ought to be limited:
65. The applicant spent almost the first thirty years of his life in Chile. Accordingly, while there may be a period of readjustment, the Minister contends that there are no significant cultural or linguistic barriers facing the applicant. While the applicant has some physical health issues, they do not appear to be debilitating. Although the applicant contends that his return to Chile would be mentally traumatic for him due to his previous abuse, the applicant does not present as having any distinct psychiatric disorders or symptoms for post-traumatic stress (G14/102). Furthermore, the applicant was able to live in Chile for nearly 30 years before choosing to come to Australia.
66. Although the applicant may face some difficulty in obtaining employment, Chile is a growing economy which has succeeded in reducing poverty rates (TB5). Furthermore, Chile has a comprehensive social welfare system (TB6). Despite the applicant’s claim, there is no evidence that he cannot access welfare as he has not lived in Chile for five years.
This assessment is not sustainable considering the evidence heard by the Tribunal.
I note that the focus of inquiry under paragraph 9.2 refers to impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards. The Tribunal is required to consider impediments both during the establishment phase and in the longer term. There are several factors that suggest that the Minister’s submission is not to be accepted.
First, the Applicant is 65 years old, and suffers from several health conditions, one of which is particularly serious. I note that Mr Watson-Munro stated:
[MKJQ] is in poor health. He is on a range of medication for cardiovascular disease and in this regard, I note that he has suffered a heart attack in the past, in addition to being diagnosed with clots on his lungs. He fears that he will not receive the same level of care for his heart condition should he be returned to Chile, which is further strengthening his motivation to not reoffend. It is also highly unlikely that he will receive the type of treatment that he requires.
There is also credible evidence that he is experiencing the early stages of a neurodegenerative disease. This is referred to in the materials before the Tribunal. Unfortunately, there is no clear medical diagnosis from a suitably qualified specialist, but there are sufficient independent references to this condition to provide a credible concern. The Applicant said that he has experienced, sporadically, some symptoms consistent with this diagnosis. There is no evidence before the Tribunal as to the prognosis, rate of degeneration, or prospects of remission or recovery. The Applicant said that he only had a few years to live, but the basis for this statement was not clear. If he is suffering from the early onset of such a condition, the impediments he may face in establishing himself in Chile after 36 years are likely to be substantial. Given the lack of supporting medical evidence, I do not think one should proceed on a “worse-case scenario”. However, Mr Sheedy for the Minister accepts that there is some evidence before the Tribunal relating to this condition and that it should be considered.
A second aspect relates to his psychological well-being. There is credible evidence that he suffers from a paraphilic disorder, namely frotteurism, which led to his offending. His parole conditions are strict, and the prospect of reoffending is, in the Tribunal’s opinion, very small. That is not to say that the risk of re-offending is non-existent. It can never be zero, given the history. The significant point is that the Tribunal has no evidence before it relating to the measures that may be taken in Chile to ensure that he is appropriately monitored as a returning sex-offender. The possibility of relapse is a factor that should be weighed in assessing the impediments he may face in re-establishing himself in his home country.
Another aspect of this relates to the possible causes of his sexual proclivities. He says that he was abused in Chile by a relative, an older stepbrother, and that he abused his victims in the same way that he was abused. This is of course deeply disturbing but tends to suggest the need for ongoing counselling as a protective measure. The possible trauma of being returned to the place where, according to his evidence, he was neglected and abused as a child cannot be ignored. The Respondent correctly notes that the Applicant does not presently suffer from any distinct psychiatric disorders or symptoms for post-traumatic stress. However, it does not follow that his mental health is not in jeopardy should he be removed.
The evidence given by KS and ES suggests that there is a realistic possibility that his second marriage may survive. The loss of that possibility, coupled with the certain trauma of separation from KS and ES have unpredictable mental health consequences.

Furthermore, there is credible evidence that he would be subject to a five-year waiting period before being entitled to an aged pension in Chile.
For these reasons, I consider that this consideration points strongly in favour of revoking the original decision.
OC3: IMPACT ON VICTIMS
The Minister contends that there is no evidence as to the impact on victims and that this consideration is therefore not relevant.
However, KS and ES are family members of three victims of their father’s criminal conduct, and they have provided evidence as to the likely impact upon them of his removal from Australia.
I consider this to be directly relevant to OC3. I note that in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116, the Full Court (Logan, Rangiah and Goodman JJ) stated at [134]:
Paragraph 9.3(1) requires that decision-makers must, “consider the impact of the section 501 or 501CA decision on members of the Australian community”. The members of the Australian community are explained to include, but are not confined to, “victims of the non-citizen's criminal behaviour, and the family members of the victim or victims”. The paragraph does not in its terms confine the “impact” that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word “impact” is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal. In addition, the paragraph requires that what must be considered is, “the impact of the section … 501CA decision” without distinguishing between a decision to revoke the s 501(3A) cancellation decision and a decision not to revoke. Therefore, impacts on members of the Australian community caused by a decision that will result in the offender either remaining in Australia or being removed from Australia fall to be considered under para 9.3(1). (Emphasis added).
This decision involved paragraph 9.3 of Direction 90, which is unchanged in Direction 99. This passage refutes the idea that this consideration must always count against an applicant. I conclude that KS and ES’s evidence of the impact of their father’s removal can permissibly be considered under para 9.3, and that in the circumstances of this case their evidence powerfully supports the revocation of the original decision
There is however no direct evidence of the impact on the Applicant’s victims.
CONCLUSION
The Tribunal’s approach to its task of evaluation was the subject of a recent decision of the Federal Court of Australia: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (CRNL). The Full Court (Colvin, Stewart and Jackson JJ) allowed an appeal from a single judge upholding the Tribunal’s decision not to revoke the cancellation of a visa under subsection 501CA(4). One implication of CRNL is that the Tribunal performs its task erroneously by focussing on each consideration in isolation without properly weighing them against one another.[49]
[49] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26]-[28].
The Applicant has lived in Australia for 36 years. That fact alone would hardly be grounds for revoking the visa cancellation, considering the seriousness of his historical offending.
He claims that his childhood in Chile was shattered by parental neglect and sexual abuse. There is no doubt that his behaviour with these young girls in Australia has caused them serious harm.
His own children were not direct victims of his sexual offending. They stand apart as innocent victims. They appeared before the Tribunal and gave evidence. They were courageous to do so. They stood by their statutory declarations and gave evidence that they still love their father and said they would be devastated if he was to be removed.
They have accomplished much in their lives, despite the trauma of his arrest and incarceration and the shame of his offending. KS graduates this year as an engineer and ES is well on her way to being a nurse. They stand by the Applicant even though, as intelligent individuals, they understand the trauma he has caused and the ongoing repercussions for their extended family. They speak highly of his qualities as a father, and the genuineness of their emotions was plain to see. They talk of his kindness and his gentleness and his concern for their well-being. They offer him a place to live.
KS and ES each confirmed to the Tribunal that their mother has agreed to his return to the family home, although the nature of their relationship is far from clear. For the moment they are still married. Whether she will ever truly forgive him lies in the future. He has offended against her sister and brother and their children and the child of a family friend. She was unprepared to come before the Tribunal. Her understandable attitude, as he explained it, was that he needed to regain his visa and then they would talk. There is simply no denying the shame of his behaviour, and the Tribunal has no way of knowing how this story ends.
The Tribunal acknowledges the community concern, indeed outrage, at sexual violence in all its forms, but especially against children. While his proven behaviour does not fall into the worst category, it was directed against vulnerable children in his care. He used them for sexual gratification. They were powerless to resist. They have suffered greatly by reason of his offending. That he may suffer from a paraphilic disorder provides no excuse for such behaviour.
To his credit, he recognises the harm that he has done. I share the view of those who detect that he expresses genuine shame, remorse, and regret.
The Applicant was sentenced by a highly experienced and respected District Court judge, who later became the first President of the Children’s Court of New South Wales. Marien J did not consider that he was a danger to the community and said that he had no concerns about community protection. I respectfully agree with his Honour not merely because of his remorse, but he will have limited opportunities to reoffend given the terms of his parole, and his growing infirmities, including the onset of dementia. Indeed, his health problems are pressing. He has suffered a heart attack and a recent bout of shingles. There is credible evidence that he suffers from early onset of dementia, in one of its insidious forms. The progress of this disease is relentless, although the rate of deterioration hard to predict. There is no doubt that such a condition will amplify the difficulties he would face as a returning sex offender if forced to reintegrate into Chilean society.
Overall, I am satisfied that there is ‘another reason’ or combination of reasons as to why the cancellation decision should be revoked. In my opinion, they clearly outweigh the combined weight of those factors pointing the other way.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 26 September 2023 that the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..........[SGD]..............................................................
Associate
Dated: 22 December 2023

Dates of hearing: 6, 7 and 14 December 2023

Date final submissions received: 11 December 2023

Counsel for the Applicant: Mr D. Godwin

Solicitors for the Applicant: Ms E. Trotter, Brett Slater Solicitors

Solicitors for the Respondent: Mr M. Sheedy, Sparke Helmore Lawyers

[2023] AATA 4247

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	6, 7 and 14 December 2023
Date final submissions received:	11 December 2023
Counsel for the Applicant:	Mr D. Godwin
Solicitors for the Applicant:	Ms E. Trotter, Brett Slater Solicitors
Solicitors for the Respondent:	Mr M. Sheedy, Sparke Helmore Lawyers