MMKD and Minister for Home Affairs (Migration)

[2019] AATA 2197

MMKD and Minister for Home Affairs (Migration) [2019] AATA 2197 (24 July 2019)

Division:GENERAL DIVISION

File Number:          2019/2443

Re:MMKD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Member T Eteuati

Date:24 July 2019

Place:Sydney

The decision under review is affirmed.

............................[SGD]................................................

Member T Eteuati

CATCHWORDS

MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) – Applicant failed to pass the character test – whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – decision under review affirmed

LEGISLATION

Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501G

CASES

Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

UN General Assembly, Convention on the Rights of the Child, 20 November 1989

REASONS FOR DECISION

Member T Eteuati

24 July 2019

background

1. This is an application by MMKD (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on
   29 April 2019 to refuse to revoke, under subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“TY 444 visa”).

2. The Applicant first began residing in Australia in 1971 as a 13 year old. The Applicant has departed Australia on numerous occasions since 1971. In 2008 the Applicant and his wife relocated to a country which the Applicant described as a “Third World country” (“Country A”) to start up a humanitarian organisation assisting disadvantaged orphaned children in Country A. The Applicant and his wife adopted a child in Country A in 2011 (“Child A”). The Applicant and his wife adopted a second child in Country A in 2015 (“Child B”).

3. The Applicant and his wife returned to Australia on a number of occasions while they were residing in Country A. Significantly, they arrived in Australia on 23 September 2014 and departed on 4 November 2014.

4. While a TY 444 visa is technically a temporary visa, a TY 444 visa allows its holder to remain indefinitely in Australia. When the holder of a TY 444 visa departs Australia, the visa ceases but, subject to a person continuing to meet the visa criteria, they are granted a new TY 444 visa when they re-enter Australia.

5. The Applicant was last granted a TY 444 visa on his last arrival in Australia on 10 January 2018. It was this visa that was cancelled under subsection 501(3A) by the Minister’s delegate on 30 November 2018.

6. On 8 August 2018, the Applicant was convicted of two counts of “indecent assault person under age 16 years of age”, committed during his visit to Australia in late 2014. The Applicant was sentenced to imprisonment for 10 months with a non-parole period of five months.

7. On 30 November 2018, the Applicant’s visa was cancelled under section 501(3A) of the Act. The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in paragraph 501(6)(e) of the Act as a court in Australia had convicted him of sexually based offences involving a child.

8. On 19 December 2018, the Applicant requested that the cancellation decision be revoked. On 29 April 2019, the Minister refused to revoke the cancellation of the Applicant’s TY 444 visa. On 4 May 2019, the Applicant applied to this Tribunal for review of that decision.

9. The matter was heard on 10 July 2019. For the reasons below, I have found that the Minister’s delegate’s decision, to refuse to revoke the cancellation of the Applicant’s visa, is the correct decision and I have affirmed that decision.

   issues

10. Pursuant to subsection 501CA(4) of the Act, the Minister may revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) 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.

11. The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, paragraph 501CA(4)(a) is satisfied in this case.

12. The two remaining issues are:

    a.whether the Applicant passes the character test as defined in section 501 of the Act; and

    b.whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

13. If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.

14. The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.

15. In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:

    “I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”.
    I consider that this is a correct construction of s 501CA(4)(b).

    In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”

16. If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke the cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.

    evidence

17. The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A4 and the document tendered into evidence by the Respondent and marked as exhibit R1. The evidence contained in these documents is discussed throughout this decision: see “Annexure A” to this decision.

18. The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of the Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.

19. A summary of the evidence is provided below from paragraph 36 of these reasons.

    does the Applicant pass the character test?

20. Subsection 501(6) relevantly provides:

    (6)    For the purposes of this section, a person does not pass the character test if:

    …

    (e)  a court in Australia or a foreign country has:

    (i)  convicted the person of one or more sexually based offences involving a child; or

    …

    Offending history

21. An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 20 September 2018 shows on 8 August 2018 the Applicant was convicted of two counts of “indecent assault person under age 16 years of age”. The Applicant was sentenced to imprisonment for 10 months with a non-parole period of five months.

22. The conduct in Australia for which the Applicant was convicted involved the Applicant indecently assaulting his then three year old adopted daughter by putting his hands down his adopted daughter’s pants and indecently touching her vagina and buttocks.

23. I am satisfied a court in Australia has convicted the Applicant of two sexually based offences involving a child.

24. Consequently, I am satisfied that the Applicant does not pass the character test.

25. The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

    Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

26. In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.

27. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.

28. The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.

29. Paragraph 13 of the Direction provides for three primary considerations. They are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

30. Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

31. Subparagraphs 8(3) to (5) of the Direction provide:

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

32. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:

    “… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement 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.”

33. The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.

34. The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.

35. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    Summary of evidence

36. The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Department and the Tribunal and evidence given by the Applicant and witnesses at the hearing in response to questions in cross-examination and from the Tribunal.

37. The Applicant was born in New Zealand in 1957. The Applicant first began residing in Australia in 1971 as a 13 year old. The Applicant has departed Australia on numerous occasions since 1971. In 2008 the Applicant and his wife relocated to Country A to start up a humanitarian organisation assisting disadvantaged orphaned children in Country A. The Applicant and his wife adopted Child A in Country A in 2011 shortly after she was born. The Applicant and his wife adopted Child B in Country A in 2015 shortly after she was born.

38. The Applicant and his wife returned to Australia on a number of occasions while they were residing in Country A. Significantly, they arrived in Australia on 23 September 2014 and departed on 4 November 2014.

39. During his time in Australia in 2014, the Applicant put his hand down Child A’s pants and touched her vagina and buttocks. The sentencing remarks of the sentencing judge indicate that this offending lasted for perhaps only a matter of seconds. The Applicant told the Tribunal that he continued with similar types of offences upon the family’s return to Country A and that this only ceased in 2016.

40. The Applicant, his wife, and their two adopted daughters returned to Australia on 10 January 2018. The Applicant indicated that one of the reasons for his return was to seek appropriate treatment as he wanted to ensure that he never abused his child again. He said that shortly after arriving in Australia he telephoned a counsellor and disclosed his offending against Child A. He said that the counsellor advised him that they would be required to report the matter to police, and encouraged the Applicant to report his offending to the police himself. Shortly thereafter, the Applicant attended a police station and admitted his offending to police officers.

41. A NSW Department of Corrective Services Case Note Report dated 24 July 2018 which appeared to be for the purposes of a pre-sentence consultation, recorded the following in relation to the nature of the Applicant’s offending:

    “The first offence is noted to have occurred whilst the family was visiting Australia in September 2014. According to the facts [the Applicant] placed his hands down his daughter’s pants and touched her vagina and buttocks. The offending continued upon their return to [Country A] and involved [the Applicant] continuing to touch her vagina and buttocks whilst applying moisturising lotion after her bath and while she slept. The Applicant is also stated to have on occasion removed her pants and rub his erect penis between her buttocks. In 2015 after one such incident, the victim informed her mother who confronted [the Applicant]. Arrangements were subsequently made for [the Applicant] to sleep in the girls’ bedroom and the girls with their mother. This is noted to have continued for approximately six weeks. Arrangements were also made to limit his time alone with the victim and that he was to no longer bath her. In 2016 after being questioned by her mother the victim made admissions that [the Applicant] was touching her again and pointed to her inner thigh.”

1. At the hearing the Applicant admitted to this conduct, indicating that this is what he had told police. The Applicant also admitted that the conduct continued “on and off” between 2014 and 2016, although he indicated that the conduct had decreased before it finally ceased in 2016. The Tribunal notes that the offending for which the Applicant pleaded guilty and was convicted in Australia only related to a single occasion of offending in Australia and did not extend to the offending that the Applicant committed in Country A between 2014 and 2016.

2. The Applicant gave evidence that both he and his wife, who have been separated since 2018, are deeply religious Christians.

3. The Applicant indicated what the Tribunal considers to be true remorse and contrition in relation to his offending. The Applicant indicated to the Tribunal that he is disgusted with himself for the appalling offences that he committed against his daughter. The Applicant indicated that he was sickened by his offending as he was supposed to love and protect his daughter and that he betrayed her trust by his appalling offending against her.

4. The Applicant indicated that life in Country A was very difficult for him and his wife. He said that they were working seven days a week for the charitable organisation which they had established. He indicated that during their time in Country A, he and his wife had drifted apart “emotionally and physically”. The Applicant indicated that when his offending began he felt isolated and alone and that this led to deep depression.

5. The Applicant indicated that part of the reason for his return to Australia in 2018 was to turn himself in to police in relation to his offending and to seek appropriate psychological and counselling assistance to ensure that he never reoffended. The Applicant indicated that he pleaded guilty to the offences for which he was charged and that the sole evidentiary basis for those convictions was the admissions that he made to police.

6. The Applicant has provided evidence, including documentary evidence, that upon his return to Australia in 2018 he attended numerous sessions with a certified sex addiction therapist. The Applicant also provided evidence, including documentary evidence, that he regularly attended Sexaholics Anonymous group meetings in the eight months between arriving in Australia in January 2018 until he was imprisoned in August 2018. The Applicant also provided evidence that he had met with a forensic and clinical psychologist who had recommended that he would benefit from engagement in group treatment offered by the psychologist. The psychologist indicated that the Applicant would be placed on a waiting list for when a position became available for group treatment.

7. The Applicant indicated that he and his wife had separated after he had reported his offending to police in Australia in 2018. She and his daughters had since returned to Country A. The Applicant indicated that he had an adult son who lived in Country A and that he had three infant grandchildren living in Country A. He said that he has had much contact with these grandchildren as they had all been living in Country A. The Applicant also indicated that he had a son who resided in the United States of America who had two infant children, the Applicant’s grandchildren. The Applicant indicated that he had not, as yet, met these two grandchildren.

8. The Applicant indicated that his two youngest adult sons were childless and lived in Australia. He said that the second youngest son was recently married and that he and his wife intended to have children in the future.

9. The Applicant indicated that his parents both lived in Australia and were in their 80s. He said that they were both frail and, especially in the case of his father, had significant ailments which meant that they were medically unfit to travel overseas. The Applicant also indicated that he had two brothers and a sister living in Australia. The Applicant indicated that he had no immediate family in New Zealand although he had an uncle and aunt and cousins living in New Zealand. The Applicant indicated that he did not have any ongoing relationship with these relatives in New Zealand.

10. The Applicant indicated that if his visa remained cancelled it would cause great hardship to himself and his family members. The Applicant indicated that if he were no longer able to remain in Australia he would have to return to New Zealand. He said that his criminal offending against Child A would prevent him from being able to return to Country A to work with children. The Applicant indicated that all of his family members considered Australia home and that reunions were held in Australia. The Applicant conceded that his family members, excluding his parents, but including his family in Country A and the United States would be able to visit him in New Zealand if they so desired. However, the Applicant indicated that this would represent an additional expense for family members in the United States and Country A as they would have to pay for flights to both Australia and New Zealand in order to visit their family members.

11. The Applicant indicated that if his visa remained cancelled, he would never see his parents again. He indicated that he would not be allowed to return to Australia and his parents were too frail and medically unfit to travel overseas. He indicated that he would not be able to continue to care for his parents in Australia and that when they passed, he would be unable to attend their funerals here. The Applicant indicated that the thought of these things caused him great distress.

12. The Applicant also indicated that, while he and his wife are currently separated, he had hopes that they would reconcile in the future. The Applicant indicated that he was currently the subject of an Apprehended Violence Order (AVO) preventing him any access to Child A until August 2020. The Applicant indicated that he had communicated with his wife by telephone and that she had indicated that she may be willing for the Applicant to have some contact and play some role in the lives of his two adopted daughters in the future.

13. The Applicant indicated that he understood that his wife was currently attempting to finalise her affairs in Country A and that she then intended to return to Australia with their two adopted daughters. The Applicant indicated that the humanitarian organisation that they had started in Country A was failing due to a lack of funds and the Applicant’s absence. He said that he believed that donors to the organisation in Australia may have discovered the Applicant’s offending and had decided to withdraw funding from the organisation as a result. The Applicant also indicated that since he has been detained, he has been unable to provide any assistance, financial or otherwise, to his wife in Country A.

14. The Applicant indicated that his absence in Country A has resulted in the biological families of his two adopted daughters being unhappy about the well-being of the girls living without a father, and the families are currently seeking for the two girls to be returned to them. In addition, the Applicant indicated that his wife and the girls must remain in Country A while his wife tries to formalise the adoption of the girls in a way that is recognised in Australia. The Applicant indicated that this was necessary in order for the girls to obtain permanent residence or citizenship in Australia. The Applicant indicated that his wife was undergoing a particularly hard and stressful time as a result of these matters.

15. The Applicant provided to the Department and the Tribunal a number of letters of support from family members, friends and acquaintances in the community and overseas. Some of these letters were from prominent members of society. The recurring theme in these letters was that the Applicant had always been known to the authors of the letters as a man of high moral character and integrity; a religious man who had sacrificed much in his life in the service of others less fortunate. The letters of support almost all appeared to describe the shock that the authors felt upon learning of the Applicant’s appalling offending. The authors of the letters indicated a belief that the Applicant’s offending was completely out of character. Some of the letters indicated the agony that the authors felt in trying to reconcile the good man that they knew with the awful crimes he had committed.

    The Applicant’s friend

16. All of the above general observations regarding the letters of support provided by friends and family of the Applicant were repeated by the Applicant’s friend who provided evidence at the hearing before the Tribunal. He indicated that the Applicant was a childhood friend who he had known since 1971 when they became schoolmates.

17. The Applicant’s friend indicated that he found it very difficult to believe that the Applicant was telling him the truth when he disclosed his offending behaviour. He said that the Applicant made no attempt to conceal his behaviour or to downplay it in any way. The Tribunal notes that this is consistent with its observations of the Applicant during the hearing. The Applicant’s friend indicated that the Applicant used the phrase “you do the crime, you do the time” in relation to his offending in full acknowledgement of his offences and his acceptance of his punishment.

18. The Applicant’s friend indicated that he believed that the Applicant’s offending behaviour was “inexcusable” and that he could “think of few crimes that would be worse”.

19. The Applicant’s friend indicated that while the Applicant’s conduct could not be excused that perhaps it was in part explained by the incredible stress that the Applicant was under living an isolated existence in very difficult conditions in Country A.

20. The Applicant’s friend indicated that the Applicant was truly remorseful and repentant. He said that the Applicant was only convicted because he decided that the right thing for him to do was to turn himself in to police. The Applicant’s friend indicated that the Applicant had made voluntary steps to make sure that he was held accountable for his behaviour and had taken steps to receive treatment so his offending would never be repeated. The Applicant’s friend indicated that he believed that the Applicant would never reoffend.

21. The Applicant’s friend indicated that if the Applicant’s visa remained cancelled he would visit the Applicant in New Zealand and would continue to publicly declare himself the Applicant’s friend.

    The Applicant’s third son

22. The Applicant’s third eldest son had provided a statement to the Tribunal and gave evidence at the hearing. The Applicant’s son indicated that the Applicant had been an outstanding father to him. He indicated that the Applicant had been an ideal role model, instilling in him a good work ethic and a healthy respect for authority and community.

23. The Applicant’s son indicated that his mother and two adopted sisters were likely to return to Australia by the year’s end. He indicated that he believed that his mother, the Applicant’s wife, believed it was important for the Applicant to play some role in the lives of his adopted sisters. The Applicant’s son indicated that his adopted sisters dearly missed the Applicant.

24. The Applicant’s son indicated that he firmly believed that it was in the best interests of his adopted sisters that the Applicant be allowed to remain in Australia. The Applicant’s son indicated that the Applicant’s presence in Australia would enable him to help and support his adopted children in Australia in the future. The Applicant’s son also indicated that he believed that his father’s rehabilitation would be best served by remaining in Australia. He indicated that his grandparents, the Applicant’s parents, would be greatly assisted by the Applicant remaining in Australia so that he could care for them here in their old age.

25. The Applicant’s son also indicated that he has recently married and that he and his partner intend to have children in the future. He indicated that he wanted the Applicant to remain in Australia so that his children could develop a healthy relationship with their grandfather, the Applicant. The Applicant’s son also indicated that he wanted his father to remain in Australia so that they could continue to maintain their relationship. The Applicant’s son indicated that his father had spent 10 years overseas and that he wanted the opportunity to spend more time with him after all of their time apart.

26. The Applicant’s son indicated that he was completely shocked when he had heard what his father had done to his adopted sister. However, the Applicant’s son indicated that he believed that the Applicant had rehabilitated, confessed his crimes and taken full responsibility for them. The Applicant’s son indicated that the Applicant was a man of integrity and high moral principle who had made a tragic mistake. He said that he was now confident that his father would never reoffend.

27. The Applicant’s son indicated that when their family reunited, they would congregate in Australia. The Applicant's son indicated that it was in the best interests of all of their family members, including those of child family members in Country A and the United States, that the Applicant be allowed to remain in Australia.

    primary consideration A: Protection of the australian community from criminal or other serious conduct

28. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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 nature and seriousness of the Applicant’s conduct to date

29. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:

    a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    f)the cumulative effect of repeated offending;

    g)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

30. The nature of the Applicant’s offending has been described above in the NSW Department of Corrective Services Case Note Report dated 24 July 2018. The offences which occurred in Australia, and for which the Applicant was convicted involved the Applicant putting his hands down his adopted three year old daughter’s pants and indecently touching her vagina and buttocks. In addition to this conduct, the Applicant freely admitted to the police in Australia and to the Tribunal that he had continued with similar offending in Country A between 2014 and 2016. This offending consisted of vile sexual abuse of a child between the ages of three and five years old for a period of around two years. While the Applicant had indicated in a statement that the victim had been unaware of the offending as she had been sleeping when it occurred, at the hearing he admitted that she had been aware of some of the offending as she had reported it to her mother on at least two occasions.

31. In relation to the seriousness of the offending, the sentencing judge made the following comments:

    “… In my view, even taking into account only those paragraphs and even though it involved a reasonably brief period of offending in terms of perhaps even seconds, this is an objectively serious matter and should not in any way be trivialised. …”

32. The Tribunal notes that these remarks were only in relation to one instance of offending which occurred in Australia in 2014 and were not directed to the Applicant’s ongoing offending in Country A which continued until 2016.

33. The Tribunal finds that the Applicant’s abusive conduct was extremely serious. The nature of the Applicant’s conduct involved abhorrent sexual abuse of his own adopted daughter over a period of approximately two years.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

34. Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct

35. In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent or sexual offences. This is such a case. If the Applicant were to reoffend in a similar manner, this would likely result in physical and psychological harm to children in the Australian community and possibly severe and lasting harm.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

36. The pre-sentence report for the Applicant indicates that an assessment of the Applicant’s risk of reoffending was undertaken by employing the Level of Service Inventory – Revised (LSI-R) psychological actuarial tool. It is unclear from the report whether this tool was employed by a psychologist or psychiatrist. However, the pre-sentence report indicates that the LSI-R tool assessed the Applicant as presenting a low risk of reoffending.

37. The pre-sentence report indicated that the Applicant had accepted responsibility for his actions and did not minimise his offending behaviour. He recorded that the Applicant had stated that his offences were “selfish acts that affected his whole family” and that he “violated and broke the trust” of his adopted daughter.

38. Similarly, the NSW Department of Corrective Services Case Note Report dated 24 July 2018 indicates that the Applicant’s risk of reoffending was assessed using the STATIC-99R actuarial tool. Again, it is unclear whether this tool was employed by a psychologist or psychiatrist. However, the Applicant’s score on the STATIC-99R was said to place him in the very low risk range relative to other male sexual offenders.

1. The Tribunal has taken into account the many references provided by friends, acquaintances and family members as they relate to the Applicant’s risk of reoffending.

2. The Tribunal has also taken into account the fact that the Applicant turned himself in to authorities and confessed his offending. The Tribunal has taken into account the sentencing judge’s remarks that the Applicant has demonstrated contrition and remorse. The Tribunal agrees with the sentencing judge’s remarks that the Applicant has demonstrated contrition and remorse. The Tribunal accepts that the Applicant has taken all steps available to him to seek and undertake treatment which he believed would help prevent him from ever reoffending. Indeed, the Tribunal accepts that, at present, the Applicant has no intention whatsoever of reoffending in the future. However, the Applicant’s intentions are not conclusive as to the risk that the Applicant will reoffend in the future.

3. The Tribunal has also taken into account that the Applicant is currently prevented from having any contact with the victim of his offences until 2020. The Tribunal has also taken into account that the Applicant is likely to have been recorded on the Child Protection Register in New South Wales which would require the Applicant to be subject to certain reporting obligations.

4. The Tribunal has taken into account that it appears that, prior to his offences which began in 2014, the Applicant did not have a criminal history. Prior to his offences, and indeed during the period in which he was offending, the Applicant had been contributing positively to the community both in Australia and in Country A.

5. The Tribunal is willing to accept that the Applicant’s risk of reoffending is low. However, given that the offending occurred relatively recently and continued for a period of approximately two years and involved appalling sexual abuse of his own adopted daughter, and given that the Applicant continues to recognise that he needs treatment in order to ensure that he will not reoffend, the Tribunal considers that the low risk that the Applicant will reoffend is a real one.

6. After considering the above, and all of the evidence provided in documentary form and orally at the hearing, the Tribunal finds that there is a real risk that the Applicant will commit sexual offences against children in the future if he is allowed to remain in Australia.

   Conclusion: Primary Consideration A

7. The Tribunal has found that the Applicant’s offending conduct was extremely serious. The Tribunal has found that if the Applicant were to reengage in similar criminal conduct it is likely the nature of the harm to victims would be that children in Australia would suffer sexual abuse likely to result in physical and psychological harm and possibly severe harm.

8. The Tribunal has found that the Applicant continues to present a real risk of reoffending if he is allowed to remain in Australia.

9. After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.

10. The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.

    Primary Consideration B: The best interests of minor children in Australia

11. Paragraph 13.2 of the Direction is entitled “Best interests of minor children in Australia affected by the decision” [my emphasis] and instructs that decision-makers must make a determination about whether revocation is in the best interests of any relevant child under the age of 18.

12. It appears that this consideration is included in the Direction in order to ensure Australia’s compliance with its obligations under the Convention on the Rights of the Child (“the CROC”).

13. Article 1 of the CROC provides:

    “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

14. Article 2 (1) of the CROC provides:

    “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status” [my emphasis].

15. Article 3 (1) of the CROC provides:

    “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” [my emphasis].

16. In the present case, while there are children who may be affected by the outcome of the proceedings, namely the Applicant’s grandchildren and adopted daughters all living overseas, there are no readily identifiable children in Australia (leaving aside any unidentifiable potential future victims) who would be affected by the outcome of these proceedings.

17. The Applicant’s two adopted children are not in Australia and are not Australian citizens. The Applicant’s two grandchildren in the United States are outside of Australia and are not Australian citizens. While the Applicant’s three grandchildren in Country A are Australian citizens, they are not in Australia.

18. It follows that according to the wording of the Direction itself, the second primary consideration is not relevant in this case as a primary consideration. Indeed it appears unlikely that Australia has any “best interests” obligations under the CROC in relation to the relevant children in this case as it appears that none of the children can be described as being within Australia’s jurisdiction.

19. While the Tribunal considers that this consideration is not relevant in the present case as a primary consideration, the Tribunal has considered the best interests of children as an “other consideration” below as the Tribunal considers that the best interests of minor children outside of Australia remain a relevant consideration in this matter.

    primary Consideration C: The expectations of the Australian Community

20. Paragraph 13.3(1) of the Direction states:

    “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”

    How are those expectations determined?

21. In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348 (“Uelese”); Afu v Minister for Home Affairs [2018] FCA 1311 (“Afu”); and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:

    ·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and

    ·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.

22. In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation.

23. In Doan, I also found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 13.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:

    ·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);

    ·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and

    ·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).

24. The fact that Direction 79 is relevant to this matter, rather than Direction 65, has no material bearing on this case other than that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes.

25. In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.

26. Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.

27. Since my decision in Doan, the Federal Court on 11 April 2019 handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are FYBR v Minister for Home Affairs [2019] FCA 500 (“FYBR”) and DKXY v Minister for Home Affairs [2019] FCA 495 (“DKXY”).

28. In FYBR her Honour Perry J concluded at [42]:

    “It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”

29. In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese, Afu and YNQY.

30. In DKXY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.

31. In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.

32. However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.

33. In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached by the Applicant committing serious sexual offences against his adopted infant daughter. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere.[1] In the present matter the Government has acted in accordance with that expectation as was required by subsection 501(3A) of the Act.

    [1]     See paragraph 6.3(2) of the Direction.

34. The Tribunal considers that the Australian community would find that the Applicant’s offending conduct was extremely serious. The Tribunal considers that the Australian community considers that non-citizens who commit serious crimes, especially sexual crimes against children, should generally expect to forfeit the privilege of staying in Australia.[2]

    [2]     See paragraph 6.3(3) of the Direction.

35. Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place weight, in the Applicant’s favour, on the fact that the Applicant lived in Australia for most of his life, for almost 40 years. The Tribunal is willing to accept that the Applicant, through his employment and involvement in the church and community, was making a valuable contribution to the community prior to his serious offending. The Tribunal also considers that the Australian community would place weight on the severe negative effects of the Applicant’s removal from Australia on his parents, his siblings, and his children in Australia.

    Conclusion: Primary Consideration C

36. Overall, given the extremely serious nature of the Applicant’s sexual offending against a child, that there is a real chance that he will reoffend and, notwithstanding the lengthy time the Applicant has spent in Australia, and the hardship to his immediate family members here if he were to be excluded from Australia, the Tribunal finds that the Australian community would consider that the risk of future harm to children in our community, however low, is unacceptable and that the Tribunal should not revoke the cancellation of the Applicant’s visa.

37. The Tribunal finds that this consideration weighs against revocation of the cancellation of the Applicant’s visa. The Tribunal places significant weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.

    Other Considerations

38. While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under paragraph 14(1):

    a)international non-refoulement obligations;

    b)strength, nature and duration of ties;

    c)impact on Australian business interests;

    d)impact on victims;

    e)extent of impediments if removed.

    (a)    International non-refoulement obligations

39. Neither party has raised any issue about non-refoulement regarding the Applicant, and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.

    (b)    Strength, nature and duration of ties

40. Paragraph 14.2 of the Direction provides:

    … Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.less weight should be given where the non­citizen began offending soon after arriving in Australia; and

    ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

41. The Applicant first began residing in Australia in 1971 as a thirteen-year-old. He has been employed for most of that time and there is evidence of the Applicant contributing positively to the community over a number of years. He is very highly regarded by friends, family and acquaintances in Australia. The Applicant’s sexual offending against his daughter occurred between 2014 in 2016 decades after he had arrived in Australia in 1971.

42. The Tribunal has taken into account statements of the Applicant’s friends, family members and acquaintances in support of the Applicant as being relevant to the Applicant’s ties to Australia.

43. The Tribunal has taken into account the hardship to the Applicant’s immediate family members and friends in Australia which will result from the Applicant’s removal from Australia. This includes the severe hardship to his adult children, his siblings, and his ageing parents. The Applicant’s removal from Australia will limit his ability to spend time in person with these family members.

44. The Tribunal has also taken into account under this consideration the hardship to the Applicant which will result if he must leave Australia. If it had not, the Tribunal would have considered this matter as a separate “other” consideration. The Tribunal accepts that the Applicant will be seriously adversely affected if he has to relocate to New Zealand. It will present an impediment to maintaining a relationship with his children in Australia. He will also be separated from immediate family members, friends and acquaintances in Australia, where he has lived for most of his life. It is unlikely that the Applicant will ever see his parents again if the decision under review is affirmed. He will no longer be able to care for them in their old age as he had been doing and is unlikely to be able to attend their funerals.

45. Overall, the Tribunal finds that the Applicant has very strong ties to Australia forged over a period of almost 40 years since the Applicant was 13 years old. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.

    (c)     Impact on Australian business interests

46. While the Applicant has indicated that he could be an asset to the community as a tradesperson, neither party has argued that Australian business interests would be affected by the Applicant’s absence from Australia. In these circumstances, the Tribunal places no weight on this consideration.

    (d)     Impact on victims

47. Paragraph 14.4(1) of the Direction provides:

    “Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”

48. There is very little direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. While the Applicant’s third eldest son indicated that the Applicant’s adopted daughters dearly missed the Applicant, given that one of those daughters was the victim of serious sexual offences by the Applicant, and because the Tribunal has not heard evidence from either the victim or her mother, the Tribunal considers that the prudent course is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.

    (e)    Extent of impediments if removed

1. Paragraph 14.5 of the Direction provides:

   (1)  The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)The non-citizen's age and health;

   b)Whether there are substantial language or cultural barriers; and

   c)Any social, medical and/or economic support available to them in that country.

2. The Applicant is a man in his early 60s. He suffers from angina and has a stent implanted into the major artery to his heart and takes medication daily for his condition. There is also some evidence that the Applicant has suffered from depression in the past. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant re-establishing himself in New Zealand. As a citizen of New Zealand, the Applicant will be entitled to any social, medical and economic support available to New Zealand citizens in New Zealand.

3. The Applicant has been gainfully employed in Australia for almost all of his time here, and this augurs well for his employment prospects in New Zealand. The Applicant has undertaken some vocational courses in Australia which are likely to aid his prospects of being employed. However, the Tribunal has taken into account that the Applicant’s Australian offences may limit his employment prospects and the Applicant would be unlikely to be permitted to undertake work involving children.

4. The Tribunal finds that the Applicant will face some difficulty in re-establishing himself in New Zealand. He has lived in Australia for almost 40 years. He lived in Country A for a period of about 10 years between 2008 and 2018. The Tribunal accepts that the Applicant would be very upset if he were permanently removed from Australia.

5. While the Tribunal accepts that it will be difficult for the Applicant to re-establish himself in New Zealand, the Tribunal considers that there are a number of factors which will assist the Applicant in re-establishing himself there including his strong employment history and the strong emotional support the Applicant is likely to receive from friends and family members in Australia. The Applicant also has some familiarity with New Zealand having lived there for the first 13 years of his life.

6. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour. 

   Best interests of children overseas

7. The Applicant’s two grandchildren in the United States are approximately three and one years of age respectively. The Applicant has not met either of these children so it is safe to assume that they do not, as yet, have a particularly strong relationship. It is not clear whether, owing to the Applicant’s offending, the parents of these children would be willing to have the children spend time with the Applicant. The Tribunal is willing to accept that the parents of the children may have to go to the extra expense of paying for flights to New Zealand if the family in the United States wished to visit their family in Australia and visit the Applicant in New Zealand. That may mean that the family in the United States may be less willing to visit the Applicant in New Zealand. The Tribunal is willing to accept that under normal circumstances it would be in the best interests of children to be able to have access to their grandparents. However, in this case the matter is complicated by the fact that the Applicant has sexually abused one of his infant family members. In these circumstances, and because the children in the United States have had very little to do with the Applicant, the Tribunal considers that the best interests of the children in the United States are not affected by the cancellation of the Applicant’s visa.

8. The Applicant has three grandchildren living in Country A. They are aged five, two and less than a year, respectively. The Applicant has a close relationship with the elder two of these grandchildren as he spent time with them in Country A prior to returning to Australia.

9. It is not clear whether, owing to the Applicant’s offending, the parents of these children would be willing to have the children spend time with the Applicant. The Tribunal is willing to accept that the parents of the children may have to go to the extra expense of paying for flights to New Zealand if the family in Country A wished to visit their family in Australia and visit the Applicant in New Zealand. That may mean that the family in Country A may be less willing to visit the Applicant in New Zealand. The Tribunal is willing to accept that under normal circumstances it would be in the best interests of children to be able to have access to their grandparents. In this case the matter is complicated by the fact that the Applicant has sexually abused one of his infant family members. However, given that the two elder children already have an established relationship with the Applicant, the Tribunal is willing to accept that it is in each of their best interests that the Applicant’s visa cancellation is revoked so that it is more likely that they will be able to spend time in person with their grandfather under the supervision of their parents. The Tribunal considers that the best interests of these children weigh only very slightly in favour of a revocation decision.

10. Finally, and most importantly, the Applicant has two adopted daughters who live in Country A with their mother, the Applicant’s wife. Child A, the victim of the Applicant’s offending, is eight years old and Child B is four years old. The evidence before the Tribunal is that the Applicant’s wife and their two adopted daughters are likely to return to Australia to reside permanently in the not too distant future.

11. It is very difficult to determine whether revocation of the cancellation of the Applicant’s visa is in the best interests of each of these children, and especially Child A. The Tribunal heard evidence from the Applicant’s third eldest son that the two adopted girls dearly miss the Applicant. That is not surprising. The Applicant has been the only father that these children have known. However, the Applicant committed appalling sexual offences against Child A, and in those circumstances the question arises as to whether it is best that the Applicant does not remain in Australia, either to prevent a chance of future offending against either of these two children in Australia, or to mitigate any potential psychological harm to Child A in the future from the Applicant’s presence here.

12. Whether the Applicant remains in Australia, or returns to New Zealand, in the absence of a court determination giving the Applicant access to the children, it will be for his wife to determine whether the Applicant has any access to the children. It is likely that the Applicant’s wife is best placed to determine whether it is the in the interests of her children that the Applicant has any access to them. If the Applicant must return to New Zealand, it is possible that his wife may decide to visit him with their children. It is possible that the Applicant and his wife could reconcile and that his wife may choose to relocate to New Zealand with their children to be with the Applicant. This Tribunal cannot prevent any harm to children in New Zealand if the Applicant is required to return to New Zealand.

13. If the Applicant’s wife, who is probably best placed to determine whether the children are safe around the Applicant, decides that the Applicant should have access to his children, that access will be more readily possible if the Applicant remains in Australia. Thus, the Tribunal considers that, on balance, it is in the best interests of each of the Applicant’s two adopted daughters for the Applicant to be able to remain in Australia. However this matter is finely balanced and the Tribunal only places slight weight in the Applicant’s favour on the best interests of each of these children.

14. Overall, after considering the best interests of each of the relevant minor children in this case, both individually and cumulatively, the Tribunal places slight weight in the Applicant’s favour on the best interest of minor children. As the Tribunal has mentioned and for the reasons given above, in this case, as none of the relevant minor children are in Australia, the Tribunal has considered this matter as an “other consideration”, that is, not as a primary consideration.

    Conclusion: is there another reason to revoke the cancellation of the Applicant’s visa?

15. The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of the visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of the visa cancellation. The Tribunal has found that the Applicant’s sexual offending against his adopted daughter over a period of approximately two years was extremely serious, that there would be great harm to children of the Australian community if they were repeated and that there is a real risk, however low, that the Applicant will reoffend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke the cancellation of the Applicant’s visa, notwithstanding the great length of time that the Applicant has spent living in Australia and his strong family ties to Australia.

16. The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. The Tribunal has found that the Applicant will be significantly adversely affected if the cancellation decision is not revoked. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has considered the best interests of relevant minor children overseas as an “other consideration” which weighs in favour of revocation of the cancellation decision and has attributed slight weight to this consideration.

17. This case involves a man who by all accounts, and at least up until he began offending in 2014, was a man of high moral character and integrity. A man who, for most of his life, has been exemplary; he was, and perhaps is, a good man. The Applicant lived a life of service to his God and those less fortunate than himself. However, the Applicant, over a period of about two years, committed appalling, heinous sexual crimes against his own adopted daughter. As the Applicant has admitted, that young girl should have been loved, nurtured and protected by her father, the Applicant. The Applicant breached that sacred trust between a father and his daughter by his atrocious acts. The full consequences of his offending for his daughter are, as yet, unknown. This case illustrates that people are complex creatures who are capable of both charitable acts of good and kindness and also unspeakable evil. Whether a good man becomes evil after committing such despicable acts or whether he remains a good man who has done appalling things, as claimed by the Applicant’s supporters, is a philosophical, and perhaps religious, question for others.

18. As I said to the Applicant during the hearing, the Tribunal’s task in these matters is not to reward a person for their good deeds or to punish them for their offences. Ultimately, my task in a case like this one is to determine whether the risk that the Applicant presents to the Australian community is unacceptable such as to prevent the Applicant from being allowed to remain in Australia. In order to make this determination and thereby determine whether there is another reason why the cancellation of an Applicant’s visa should be revoked, the Tribunal must consider a number of matters, most obviously those contained in the Direction.

19. After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour both individually and cumulatively. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.

20. The Tribunal notes that it has considered whether it would have reached a different conclusion if it had considered the best interests of children as a primary consideration. I have concluded that even had I done so, the slight weight I would have attributed to that consideration for the reasons discussed above, and all of the other considerations in the Applicant’s favour would have still been outweighed by the primary considerations of the protection and expectations of the Australian community. Thus, the Tribunal would have reached the same conclusion.

21. The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.

22. Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

............................[SGD]...........................................

Associate

Dated: 24 July 2019

Date of hearing:

10 July 2019

Applicant:

Self-represented

Solicitor for the Respondent:

Ms Jiadi Liang

Clayton Utz Lawyers

EXHIBIT REGISTER

File No      2019/2443................................................................................................................
Between     MMKD.................................................................................................... (Applicant)
And            Minister for Home Affairs................................................................... (Respondent)
Heard on   
At               Sydney.....................................................................................................................
Before       Member Eteuati.......................................................................................................
Associate   .................................................................................................................................

Exhibit Number	Description of Evidence Dated
A1	Statement of Applicant’s acquaintance.
A2	Statement of Applicant’s friend.
A3	Statement of Applicant’s third eldest son.
A4	Birth Certificate of Applicant’s eldest son.
R1	NSW Police Force Customised Report regarding the Applicant pages 1,3 and 4.
G1	Section 501G Documents