MNLR and Minister for Home Affairs (Migration) - [2019] AATA 61

MNLR and Minister for Home Affairs (Migration) [2019] AATA 61 (25 January 2019)
Division:GENERAL DIVISION
File Number: 2018/6577
Re:MNLR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:25 January 2019
Place:Brisbane

The decision under review is affirmed.
.............................[sgd]...........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of Global Special Humanitarian visa (class XB sub-class 202) – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 65 – consideration in Direction No 75 – applicant committed serious sexual offence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 65
Direction No 75
REASONS FOR DECISION
Senior Member Theodore Tavoularis
25 January 2019
BACKGROUND

MNLR (“the Applicant”) arrived in Australia in May 2011 on a refugee (class XB, subclass 202) Global Special Humanitarian visa.[1] In November 2016, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.[2] The Applicant subsequently applied for this cancellation to be revoked in December 2016. In October 2018, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa.[3] On 12 November 2018, the Applicant applied to this Tribunal to reconsider this decision.
[1] Exhibit 8, G-Documents,G11, page 88.
[2] Ibid, G3, page 26.
[3] Ibid. G4, page 29.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[5]
[4] [2018] FCAFC 151.
[5] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[6] I will address each of these grounds in turn.
[6] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, concedes that he does not pass the character test as he has a substantial criminal record.[7] This concession was appropriately-made: on 23 October 2015, the Applicant was sentenced to three years’ imprisonment.[8] Although this sentence contained a non-parole period of 18 months, the Applicant served the first half of the sentence, comprising 18 months. It has long been established that what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[9]
[7] The Applicant appears to concede or does not otherwise take issue with the Delegate’s finding regarding the character test. This position was confirmed by the Applicant’s representative at the hearing.
[8] Exhibit 8, G-Documents, G7, page 49.
[9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(1)(a) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 65 – 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 on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. [10]
[10] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[12]
[11] [2018] FCA 594.
[12] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A
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 further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is first necessary to summarise the Applicant’s criminal history. The National Police Certificate[13] discloses the following offences (and resulting sentencing outcomes).
[13] Exhibit 8, G-Documents, G7, page 49.

Date

Offence

Court Result

23 October 2015 – District Court of New South Wales.

Aggravated sexual assault in company with another person

Imprisonment: head sentence three years, commencing on 3 June 2015 and concluding on 2 June 2018.

Non-parole period commencing 3 June 2015 and concluding on 2 December 2016, such release being subject to supervision by community correction services, including the Applicant undertaking particular treatment/counselling and/or programs relating to: (a) sexual offending and psychological issues; and (b) accepting a referral to take part in any treatment through community-based sexual offender programs as directed by community correction services.

The Nature and Seriousness of the Applicant’s Conduct to Date

The Respondent contended that the Applicant’s offending conduct are of a very serious nature.[14] I am inclined to agree. The factual circumstances comprising the Applicant’s offending and eventual conviction is clearly of a serious nature involving a direct and deliberate act of interference with, and subjugation of, the personal rights of the victim of his offending. Of equal concern and seriousness is the Applicant’s apparent lack of insight into his offending, as can be seen by his repeated challenges of his conviction through other fora over and above him being found guilty by a jury of his peers in October 2015.
[14] Exhibit 7, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 6, [33].
As has been noted in the material, the Applicant sought to appeal his conviction. A majority of the New South Wales Court of Criminal Appeal dismissed his appeal on 29 June, 2018.[15] As was also noted by the Delegate, “On 12 July 2018, [the Applicant’s] agent advised that as one [appeal] Judge dissented, [the Applicant] is seeking to apply for special leave to the High Court of Australia…”[16]
[15] ibid, page 2, [10].
[16] Exhibit 8, G Documents, G5, page 31, paragraph [8].
The Applicant has not sought to deny the seriousness of his offending. The Applicant concedes that the “…offence of aggravated sexual assault in company is serious. That any sexual assault is a significant invasion of the privacy, dignity of the victim.”[17]
[17] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 3, paragraph [3].
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. Relevant (for present purposes), amongst those factors are:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
c) The sentence imposed by the courts for a crime or crimes;
…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a sexual nature (which must surely include aggravated sexual assault) are to be viewed very seriously.
In October 2015, the New South Wales District Court sentenced the Applicant for one count of aggravated sexual assault in company with another person. Early in his sentencing remarks, the sentencing judge, Acting Judge Graham noted:
“It is important to note that this is a sentencing hearing being conducted after a jury found each of the accused guilty. This means, among other things, that neither of the accused is entitled to the benefit of a discount which would ordinarily apply to the entry of a plea of guilty. Conventionally that discount might reach as far as 25% of what would otherwise be an appropriate sentence. That is not to say that the offenders or either of them is to be punished for having stood trial but it does mean that, when compared with the general range of sentences for offences of this type, the absence of a plea of guilty may be relevant in that comparative exercise.
Because the matter was defended and because each of the accused is not conceding the correctness of the verdict there are some issues arising out of those circumstances which are relevant to an assessment of questions of insight, contrition and the like in respect of each of the accused. That is not uncommonly the situation where an offender is found guilty after trial but does not accept the validity of the verdict at the trial. Of course, each of the offenders have some rights available to him by way of appeal and the like and the verdict of the jury and, indeed, any sentence passed pursuant to it, are ultimately subject to consideration by appellate courts if that is a course which is taken. That is simply part and parcel of the processes of criminal justice in this State.”[18]
[18] Exhibit 8, G Documents, G8, pages 52-53.
Acting Judge Graham further noted:
“…The Crown submission is that, based upon those verdicts, the jury accepted the evidence of the complainant generally as a witness of truth and rejected the evidence given by each of the accused…
…The explanations offered by each of the accused were of an exculpatory nature and the jury’s finding of a verdict of guilty…must have involved an acceptance, in general terms, of the reliability of the evidence given by the complainant and a rejection of the evidence of each of the accused.”[19]
[19] Ibid, pages 53-54.
As I understood submission made on his behalf, the Applicant seeks to explain his conduct, or, more correctly, the seriousness of his conduct, on two primary grounds:
(a)he contends that his offending, while serious and punishable by a “…sentence of imprisonment of 20 years max and 10 years standard non-parole period” is nevertheless conduct that “…falls below the mid-range of objective seriousness” – as mentioned by Acting Judge Graham, and that this is somehow confirmed by him being sentenced to a custodial term of three years with a non-parole period of 18 months; and
(b)that the circumstances of the offending occurred “…in a context of no violence, drugs, alcohol, threats or deprivation of the victim’s liberty,” and that “Once the Applicant and co-accused dropped her home, she exited the car and kissed each perpetrator on the cheek goodbye.”[20]
[20] Exhibit 1, Applicant’s SFIC, page 3, paragraphs [3] and [4].
I have difficulty in accepting the basis of such a contention. It is, to my mind, very difficult to convince a decision maker that there are differing prisms through which to view and comprehend a finding of guilt (on a jury’s verdict) and subsequent conviction for a charge as serious as one of aggravated sexual assault in company with another person. As contended by the Respondent, any comments about the seriousness of the offending “…have to be read in the context of the nature of the offence the applicant has been convicted of, i.e. aggravated sexual assault, more generally.”[21]
[21] Exhibit 7, Respondent’s SFIC, page 6, paragraph [31].
There can be no doubt that the legislators conceived of offending conduct involving aggravated sexual assault as particularly serious when drafting and enacting the legislation. Otherwise, they would not have applied a maximum sentence of 20 years’ imprisonment for an offence of this type. It is a matter of numerical reality that the Applicant was sentenced to a head custodial term of three years, but that does not and should not mean that his offending is somehow at one sixth or one seventh of the severity of an offence of this type that would be punished by a custodial period of, say, ten years or more.
Any proper application of both sub-paragraphs (a) and (c) of paragraph 13.1.1(1) of the Direction involves recognition of the reality that the nature and seriousness of the Applicant’s offending must be considered on an intrinsic basis as an individual episode in a given factual matrix. It should not, to my mind, be considered in the broader milieu of conduct comprising the worst category of aggravated sexual assaults. To do otherwise would, for example, mean that a conviction for the deliberate lighting of a bushfire that devastates 10 acres of land is somehow less serious than the deliberate lighting of a bushfire that devastates 1,000 acres.

Having regard to sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the circumstances of the Applicant’s offending involving aggravated sexual assault in company with another person must be viewed very seriously.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction concerns itself with the sentence(s) imposed by the court/courts for a crime or crimes committed by the Applicant. As is often seen in matters such as this, the imposition of a custodial term is clearly suggestive of the fact that the removal of an individual from mainstream society is viewed by the courts as a measure of last resort in any reasonably applied sentencing process. The significant element behind the Applicant’s sentencing history is not its brevity. It is the reality that, despite the absence of any criminal history prior to his conviction for aggravated sexual assault in company with another person, he did not receive the benefit of leniency and a lighter sentence – even though his foray with the New South Wales District Court in October 2015 represented his first dealings with lawful authority.
From the first, the sentencing judicial officer incarcerated the Applicant for his offending for a not-insignificant period of three years. Regardless of the time actually served by the Applicant, the significant point is that his initial sentencing judicial officer thought his offending to be of such serious nature as to warrant the immediate imposition of a quite lengthy custodial head sentence.
The necessity of assessing conduct on an episode-by-episode basis is, to my mind, endorsed by the comments of Justice Rares in Brown v Minister for Immigration and Citizenship[22]. While analysing the concepts of “imprisonment” and “sentence” for the purpose of establishing that an Applicant has a substantial criminal record for the purposes of sub-sections 501(6)(a) and (7) of the Act, his Honour noted:
“The definitions of ‘imprisonment’ and ‘sentence’ in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus…is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be or subsequently may be, served.”[23]
[22] (2010) 183 FCR 113.
[23] Ibid, page 116, paragraph [7].
His Honour further noted that a decision maker’s construction of a term of imprisonment imposed upon an Applicant “...cannot depend on the vaguery or intricacies of different sentencing regimes in many jurisdictions.”[24]
[24] Ibid, paragraph [9].
This Applicant arrived in Australia in May 2011. The conduct resulting in his conviction for aggravated sexual assault in company with another person occurred less than two years after his arrival here, that is, between 10 and 13 February 2013.[25] For that offence, the Applicant received a custodial term of imprisonment of three years (or 36 months), running from 3 June 2015 to 2 June 2018. Upon his release on parole at the half-way stage (18 months) on 2 December 2016, he was immediately taken into immigration detention.
[25] Exhibit 8, G Documents, G8, page 51.
Expressed in cumulative terms, the Applicant has been in continuous custody and out of the community – be it in the form of criminal custody or immigration detention – from 3 June 2015 until the present time. This is a period of three and a half years (or 42 months). Expressed as a percentage, the Applicant has been in Australia for 91 months (i.e. May 2011 until December 2018) and he has been in one form of custody or another for 42 months. This means that the seriousness of his conduct has caused the authorities to remove him from the Australian community for something in the order of 46% of the total time he has been here.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs of paragraphs (a) and (c) 13.1.1(1) of the Direction are relevant to this decision, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s criminal history is a short one, especially in comparison to the histories of other Applicants that have engaged this area of the Tribunal’s jurisdiction. This Applicant’s history does not contain dimensions or gradations of severity. His singular offence was regarded by the judicial sentencing officer as sufficiently serious as to warrant the immediate imposition of a lengthy head custodial term. The sentencing judicial officer’s apprehension of the significant level of seriousness ought not to be ameliorated by any observation or contention about the relative level of its seriousness.
Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires me to consider 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.
In the course of his closing submissions, the representative of the Respondent made the submission that this was a particularly troubling case due to the Applicant not having a proper insight or understanding into the criminality of his conduct. Any assessment of the Applicant’s risk of re-offending must surely contain – as an essential element – a finding that he has been rehabilitated and has developed the necessary insight into what he has done. Only then can his risk of recidivism be properly assessed.
This is perhaps the most critical issue in this case because if I find that the Applicant’s asserted rehabilitation is devoid of any demonstrable level of insight into his criminality, then this case would clearly fall into the realm of those cases where any risk of recidivism is unacceptable and, accordingly, no visa should be held by the Applicant.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In addition to his written statement,[26] the Applicant gave oral evidence at the hearing. In his evidence in chief he confirmed the terms of his abovementioned written statement and accepted that he had been found guilty of the offence of aggravated sexual assault in company of another. He accepted that he and his co-offender were found guilty by a jury of their peers. He expressed regret and remorse for what he and his co-accused had inflicted upon the victim. Surprisingly, when referred to the sentencing remarks of Acting Judge Graham, the Applicant acknowledged he had in the past read those sentencing remarks but added that “I don’t agree with some of it.”
[26] Exhibit 2(e) Statutory Declaration made by the Applicant on 12 December 2018.
Under cross examination the Applicant was asked whether he accepted responsibility for the aggravated sexual assault conviction. He responded in the affirmative. He was then referred to two paragraphs of his abovementioned statement, being paragraph [12] on page two and paragraph [24] on page five.
Paragraph 12 reads as follows:
“12. Knowing that my sister was raped and killed means I could never do that to anyone. Never. I know I was found guilty of rape but I don’t accept this because in my heart I know that I didn’t rape…the victim”. [27]
[27] Ibid, page 2, paragraph [12].
Paragraph 24 reads as follows:
“24. I feel sorry for [the victim] and all that she has been through. I know she has had a hard life and must be depressed. I accept I was found guilty of sexual assaulting [sic] her but in my heart, I know I am not guilty of the offence. I never raped her”. [28]
[28] Ibid, page 5, paragraph [24].
The obvious inconsistency between these two paragraphs was put to the Applicant. In particular, he could not explain his acceptance in paragraph [12] where he says that “I was found guilty of rape” yet in paragraph 24 purports to say that “…in my heart, I am not guilty of the offence. I never raped her”.
The cross-examination then moved towards what I considered to be both a troubling and disturbing aspect of his evidence. It seemed to me that the primary basis of any insight he had into his offending was based on the notion (and to quote his evidence) “what happened in the room with [the victim] is not what actually happened. It’s different to Acting Judge Graham’s comments”. To me, the Applicant’s evidence contained an identifiable element of him viewing the circumstances of his offending as more of a misadventure that went badly for him as opposed to the very serious level of criminality on which he was sentenced. This theme recurs several times throughout the evidence he gave in cross-examination.
The Applicant spoke of taking his lawyer’s advice in order to conceptualise his strident denial of guilt culminating, as it did, in a three and a half week trial at first instance before Judge and jury. He purports to point responsibility towards his legal representatives for his unsuccessful appeal to the New South Wales Court of Criminal Appeal and, likewise, for his special leave application made to the High Court of Australia. That evidence goes nowhere for one primary reason: it is both inappropriate and unfair of a decision maker to take any of this evidence involving third parties (in this case lawyers) into account in circumstances where (1) those third parties have not had the opportunity to respond or be heard on that evidence and (2) the conduct asserted by the Applicant about the lawyers has not (as best as I understand the evidence) been the subject of any complaint, reprimand or other investigative process from any properly constituted body such as, for example, the New South Wales Law Society.
It was put to the Applicant that at all times he has maintained a staunch denial of the factual circumstances of this criminal matter culminating in his conviction and incarceration. The applicant had no convincing response to that question. The obvious follow-on question from this observation was to ascertain from the Applicant, not just whether he understood the nature of the charge of which he had been convicted but, more particularly, the specific elements of the offence which the Crown successfully proved in order to successfully make out the offence.
It was specifically put and explained to the Applicant that the jury’s verdict was based on four specific findings arising from the factual circumstances of the offence. Those four specific findings by the jury comprised:
·That the Applicant had sexual intercourse with the victim;
·That the intercourse took place without the victim’s consent;
·That the Applicant knew that the victim did not consent;
·That the intercourse took place in circumstances of aggravation, namely, in the company of another person.
The Respondent’s representative took the Applicant through each and every one of these four elements of the offence, all of which the jury found to have been proved by the Crown beyond reasonable doubt. The Applicant’s tepid and unconvincing response to this line of questioning was to acknowledge what he did, but to repeatedly say words to the effect of “…there was consent…from the victim” and “it was consensual”. He sought to unconvincingly support that evidence by asserting that no drugs or violence were involved in the offending episode; that the victim had, at all times, an opportunity to call the triple zero emergency services on number her mobile telephone; that he and his co-accused actually drove the victim home after the offending episode at which time she kissed them both on the cheek and apparently reminded them to drive home safely.
What I found quite disturbing from the Applicant’s evidence were his consistent themes of (1) that there was no refusal of consent from the victim, (2) that there was no undue manipulation imposed on the victim by illicit substances or violence, (3) that the victim apparently had an “out” from the situation by being able to call triple zero on her mobile phone, (4) that the evening ended amicably with an apparently affectionate gesture from the victim, (5) that the Applicant has never hid from the police or otherwise concealed his identity to avoid detection, and (6) that the police took something in the order of 10-11 months to locate him and charge him.
I found these evidentiary themes troubling because, to my mind, they are clearly demonstrative of (1) the Applicant’s lack of insight or comprehension of the seriousness of the criminality of his conduct, (2) his conception that this episode was more likely the result of a misadventure with adverse consequences for him and his co-accused and, (3) the Applicant’s inability to understand that the gravity of his conduct is such that the Australian community would, in these circumstances, be readily convinced that any risk of it being repeated is simply unacceptable.
Having regard to the nature and orientation of the Applicant’s evidence, I am, therefore, inclined to accept that the Applicant has never accepted that the victim did not provide her consent to the sexual intercourse. I am also inclined to accept that the Applicant knew, and has always known, that she did not provide such consent. It is thus logical to conclude that the Applicant has never really accepted his guilt for the crime he committed or that he was correctly convicted for that criminal conduct.
In his evidence in chief, the Applicant told the hearing that he had read the lengthy sentencing remarks of Acting Judge Graham, but that there were aspects of those remarks with which he disagreed. When pressed in cross-examination about those specific aspects of the sentencing remarks, the Applicant said he cannot specifically remember them because he had not re-read those remarks “recently”. The Applicant added that he often “can’t remember” what he reads.
This line of questioning was pursued by the Respondent’s representative with, in my view, quite revealing results. It was explained to the Applicant that in his sentencing remarks, Acting Judge Graham noted that the Applicant had given exculpatory evidence at his lengthy trial in an effort to distance himself from or to more favourably recast the conduct constituting the serious offence then-alleged against him. It was pointed out to the Applicant that at the criminal trial, the evidence emerged in such a way that his exculpatory evidence was found to be inconsistent with that of the victim and that, in light of the jury’s verdict, the Judge accepted the evidence of the victim. Yet at this hearing, the Applicant seemed to be accepting responsibility for his conduct but denied the abovementioned essential elements of the crime of which he was found guilty. The Applicant accepted that the statement he relies upon in these proceedings, made on 12 December 2018, sets out a version of events quite inconsistent with the sentencing remarks and findings of Acting Judge Graham.
The Applicant further accepted that if someone were to adopt his statement of 12 December 2018[29] as a true and correct account of the Applicant’s conduct, then that person would think the Applicant had been wrongly convicted of the offence which he had committed.
[29] Exhibit 2(e), Statutory Declaration made by the Applicant on 12 December 2018.
Another curious aspect of the Applicant’s readiness to “accept responsibility” for the crime is how that acceptance can now be construed. It was put to him that this purported acceptance of responsibility could be explained on the basis that either (1) the Applicant did not understand the elements and nature of the criminal offence he committed, or (2) that he was simply trying to make a good impression at this hearing. The Applicant had no substantive response to this proposition and again returned to the line of “…I took my lawyer’s advice. He advised me to plead not guilty.” I reject that evidence relating to the legal advisor on the same basis as I have rejected it earlier in these reasons.
The Applicant recalled his consultation with the clinical psychologist, Mr Watson-Munro, on 18 December 2018. He responded affirmatively when asked about whether he had expressed remorse about his conduct to Mr Watson-Munro, who observed “It would appear the he [the Applicant] has developed some insight into the dynamics surrounding his behaviour, as well as empathy for the victim.”[30]
[30] Exhibit 4, Report of Tim Watson-Munro, consultant psychologist, dated 14 January 2019, page 3.
The Applicant also recalled his consultation with Ms Pearl Fernandes, a clinical psychologist, on 8 January 2019. The Applicant was asked whether he recalled telling Ms Fernandes that he had been convicted of something he never did. He was specifically asked whether he recalled telling Ms Fernandes that although he was found guilty, the victim had no bruises and that there was no real evidence on which to base his conviction. His tepid and unconvincing response was “I don’t really remember.”
Given that response, the Applicant was taken to specific portions of Ms Fernandes’ report:
(a)Ms Fernandes noted that “[the Applicant] informed me that he could speak and understand English.”[31] This observation, to my mind, casts doubt upon the Applicant’s earlier but consistently maintained evidence about not understanding a number of things germane to what others have said or written about his conduct.
(b)Ms Fernandes noted “[the Applicant] reported that about a year later in 2014, he received a call from the NSW Police and both his cousin and he were charged with sexual assault. Following a trial [the Applicant] said: ‘In 2015, I was convicted for something I never did. The jury found me guilty. She had no bruises. There was no evidence.’”[32]
(c)Ms Fernandes noted “[the Applicant] claims that he is innocent as the alleged victim consented to having sex with him, and believes he was convicted even though there was insufficient evidence to support the charges against him.”[33]
[my underlining]
[31] Exhibit 5, Psychological Assessment Report of the Applicant by Ms P Fernandes, clinical psychologist, page 6, item 3.1.
[32] Ibid, page 9, item 3.3.
[33] Ibid, page 13, item 4.0.
Ms Fernandes’ observations in the immediately preceding sub-paragraphs (b) and (c) are particularly concerning. The Applicant now purports to accept responsibility for his criminal conduct, yet barely two weeks before this hearing, the Applicant is obviously denying any responsibility or culpability for the criminality of his conduct. This is, to my mind, clearly demonstrative of the reality that this Applicant has minimal insight into his offending. He was convicted by judge and jury at first instance. He was unsuccessful in an appeal to the NSW Court of Criminal Appeal. An application for special leave to the High Court has either been heard and determined unsuccessfully for him, or is pending. For him to now say that he was “…convicted for something [he] never did” and that there was “insufficient evidence to support the charges against him” is both surprising and astonishing.

The Applicant’s representative sought to ameliorate this seriously concerning aspect of the Applicant’s evidence by re-asking him about whether he took responsibility for his conduct. His response was quite telling and, to my mind, even more damaging. He said that he thought the episode between the victim, himself and his co-offender was “consensual”. He said that the victim “invited him to the bed and that everyone was happy.” He said that with regard to young females such as his victim, they are “from school years…teaches them to call triple zero if anything happened.”
I find this evidence both appalling and very damaging for the Applicant. In matters like this, decision makers often speak of an Applicant having or not having insight into what they have done. The more critical aspect of insight for the purposes of the Applicant involves him understanding the very critical cultural differences that exist with specific reference to the treatment of women and, more particularly, interpersonal relationships with women. Having regard to (1) the totality of the Applicant’s evidence, (2) the trajectory of his criminal matter after his conviction at first instance before judge and jury, and (3) what he has said to independent experts, I am not at all certain that the Applicant’s insight extends to an adequate comprehension of the cultural differences to which I have referred.
The Applicant seems to be of the view that in this country, young females such as the victim are readily open to conduct of the type to which the Applicant and his co-accused submitted her to and that if a young woman such as the victim perceives that things are going awry, then the situation should not be considered serious because the victim always has the “safety valve” of being able to call the triple zero emergency number on her mobile telephone device. The Applicant also seems to believe that young females in this country have been taught this since their “school years”. The Applicant does not seem to understand how the concept of “consent” works in these situations. The mobile phone device is not the “safety valve”. He is the “safety valve” and the Australian community reasonably expects him to conduct himself accordingly.
It is one thing for either the Applicant or an expert to say that the Applicant has developed “insight” into his offending. It is quite another thing for him to be able to demonstrate that he has developed an understanding of the cultural differences between his conception of how interpersonal relationships with young females are responsibly actualised and how the Australian community reasonably expects this should occur. When further viewed in totality, the disturbing aspect of whatever level of insight (if any) the Applicant may have of his offending, one is left with the impression that this entire episode is, in the mind of the Applicant, little more than a misadventure with an initially (to his mind) willing victim that, in turn, went badly for the Applicant and his co-accused.
In my view, an assessment of the nature of the harm resulting from further criminal or other serious conduct by the Applicant is informed by the following factors:
·He has a demonstrated lack of insight into precisely how and why criminality attaches to the circumstances of his conduct towards the victim;
·He has a demonstrated lack of insight into the nature of the harm that his criminal offending has occasioned on his victim, because he clearly thinks all was well (or well enough with her) because of the apparently amicable way the evening ended; and
·This lack of insight therefore extends to the very serious and, indeed, potentially catastrophic outcomes that could have and may in future result from his very serious conduct.
This lack of insight was also noted by Acting Judge Graham in his sentencing remarks. His honour noted:
“The pre-sentence reports notes that the offender disputed what were described as ‘the police facts.’ In the view of the author of the report, he failed to accept responsibility for his offending behaviour, justifying his actions by… (not transcribable)…that he did not perceive there to be any resistance from the victim while he was carrying out the offence. The author went on to state, “What is of further concern, is that to date, [the Applicant] still cannot comprehend there to be any misjudgement in his actions that led to the events that took place.”
However, she also says:
“He stated to be really sorry for his behaviour although he appeared to display limited victim empathy, constantly reiterating that he was unaware of the victim’s failure to consent. He also insinuated on a number of occasions his belief that he is innocent and should not be being charged for the offence.””[34]
[34] Exhibit 8, G Documents, G8, pages 71-72.
Having regard to the totality of the Applicant’s evidence, I am of the view that should he reoffend in a similar manner, the risk that he would pose to a member of the general public would be very significant. That harm could result in others suffering anything from serious physical or psychological injuries or even more severe trauma. I am therefore of the view that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
The primary witness relied upon by the Applicant in terms of informing the Tribunal about the likelihood of his engaging in further criminal or other serious conduct was the Consultant Psychologist, Mr Tim Watson-Munro. Mr Watson-Munro is an experienced and able clinical psychologist whose experience in treating people in one form of custody or another dates back 1978. Mr Watson-Munro gave his evidence in clear and lucid terms and was at all times forthright and frank in his responses to all questions put to him.
Mr Watson-Munro initially examined the Applicant in 2015 and then re-examined him on 18 December 2018. His report is dated 14 January 2019.[35] Mr Watson-Munro commented that during the period 2015-2018, the Applicant has matured and that he has expressed remorse for his behaviour. Mr Watson-Munro also observed that the Applicant has spent his time in custody in a productive way and that while in criminal custody, he obtained a high level of trust resulting in him being permitted to work with an “outside gang”. That level of trust has continued because the Applicant is now employed in the coffee shop in the minimum-security division of the immigration detention centre where he is presently held.
[35] Exhibit 4, Report of Tim Watson-Munro, consultant psychologist, dated 14 January 2019.
Mr Watson-Munro thought it was important that the Applicant continued to engage in trauma counselling to deal with the significant traumas the Applicant experienced earlier in his life. With specific reference to the issue of recidivism, Mr Watson-Munro noted:
“Given an absence of prior offending, his attitude to his conviction reflected through expressions of remorse, his maturation and the fact that he has not used at any time illicit drugs or alcohol, I believe that notwithstanding the serious nature of his offending behaviour, the likelihood of him reoffending is low. This is predicated on him obtaining employment, enjoying structure and supervision from his family and engaging on a regular basis with a Psychologist to address the issues I have described.”[36]
[36] Ibid, page 7, paragraph [6].
In cross-examination, Mr Watson-Munro was asked whether the Applicant had a clear understanding of the criminality of his conduct resulting in his conviction. Mr Watson-Munro thought the Applicant had developed such an understanding because of (1) the imposition of a term of imprisonment, (2) his placement into immigration detention immediately upon his release on parole, and (3) the live possibility of him being deported from Australia.
He was further asked whether, in his view, the Applicant had developed an understanding that his conviction for the relevant offence necessarily involved a finding that there was no consent of the victim to the sexual assault. Mr Watson-Munro’s response was equivocal and unconvincing. He said “I think this is something that would be further addressed in treatment. He is an individual that understands what he did was wrong. Further treatment would be needed.”
Mr Watson-Munro was asked to comment on the suggestion that his impression of the Applicant’s remorse was an important factor in his assessment of the risk of recidivism. Mr Watson-Munro agreed that while the expression of remorse is an important factor, there are other factors pointing to a low-moderate risk of recidivism such as: (1) his involvement in treatment and (2) his cooperative and compliant conduct as a prisoner and now detainee.
Mr Watson-Munro was then asked to assume several things. First, that the Applicant had been examined by another psychologist only a couple of weeks before this hearing, on 8 January 2019 and that during that consultation, the other psychologist (Ms Fernandes) noted: “[the Applicant] claims that he is innocent as the alleged victim consented to having sex with him, and believes he was convicted even though there was insufficient evidence to support the charges against him.”[37] Mr Watson-Munro was asked whether the recorded observations of this other psychologist were inconsistent with what the Applicant had said to him about “remorse”. Mr Watson-Munro agreed that there was inconsistency between what the Applicant told Ms Fernandes on 8 January 2019 compared to what the Applicant had told him barely two weeks before on 18 December 2018.
[37] Exhibit 5, Psychological Assessment Report of the Applicant by Ms P Fernandes, clinical psychologist, page 13, item 4.0.
Second, that the first time the Applicant saw a STARTTS[38] psychologist was on 8 January 2019, and whether Mr Watson-Munro would have been surprised by that. Mr Watson-Munro said that he was surprised. The reason for this question in cross-examination was to explain an apparent misconception in the report of Mr Watson-Munro, which is predicated on the basis that the Applicant’s counselling with STARTTS (Ms Fernandes) has been a long-term thing. In his report, Mr Watson-Munro thought:
“[the Applicant] stated that he has had some treatment in prison referable to Torture and Trauma counselling (STARTTS), which has been of some benefit to him. He added that whilst he has remained drug free in custody, he has now been prescribed Mirtazapine, which he has been taking for the past seven months. This arose from him being assessed by a General Practitioner, as well as a Psychiatrist.”[39]
[38] NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.
[39] Exhibit 4, Report of Mr Tim Watson-Munro, consultant psychologist, page 4.
It was pointed out to Mr Watson-Munro that the material discloses that the Applicant had not received treatment pursuant to the STARTTS program for seven months, nor was the STARTTS program responsible for the prescription of antidepressant medication to the Applicant. It was further pointed out to Mr Watson-Munro that the Applicant was examined by an independent psychiatrist (by telelink) who was not a psychologist or a member of STARTTS and that it was this independent psychiatrist who prescribed the antidepressant Mirtazapine.
Third, Mr Watson-Munro was asked to assume that a psychiatric nurse had been made available to detainees and that the Applicant may have either regularly or semi-regularly consulted with that nurse.
Having regard to the above three assumptions, Mr Watson-Munro was invited to comment on how he would then assess those parts of his report relating to the level and effect of treatment received by the Applicant to date. Mr Watson-Munro responded with “He clearly needs more treatment, he’s come part of the way but not all. He needs more treatment.”
Given the largely incomplete nature of treatment undertaken by the Applicant, it is difficult for experts such as Mr Watson-Munro to assess the Applicant’s risk of recidivism. The Respondent accepts that this risk, while not high, nevertheless remains a real risk. While I accept that contention, I think it would be trite to accept the contention made on behalf of the Applicant to the effect that the Applicant’s conduct can easily be dismissed as not being at the high end of an aggravated sexual assault offence. As stated by the Respondent’s representative, such a contention misses the point and amounts to saying very little indeed. Regardless of whether the Applicant’s risk of recidivism can be said to be of a high level, the reality is that it nevertheless remains a real risk.
This is especially the case in circumstances where the Applicant’s International Health and Medical Services (IHMS) records[40] indicate the Applicant has received scant, if any, treatment that can be relied upon to convincingly assess the Applicant’s risk of recidivism. The IHMS records show:
·that he was first seen by a psychiatrist (i.e. the abovementioned tele-link consultation) on 25 June 2018 and that Mirtazapine was prescribed to him[41];
·that on 25 June 2018 he “Saw a GP before he went into jail and was given “pills” for stress as he was going through court,”;[42]
·that on 11 August 2017 the Applicant was recommended to participate in “1 x 1 supportive counselling in looking at the major areas of his past and current.”[43]
·that on 20 November 2018 the Applicant was “introduced CBT [Cognitive Behavioural Therapy] and how it can help replace his current thoughts.”;[44]
·that on 11 July 2018 he participated in a “Group Counselling Session” on “Topic: Managing our Anger/Pain” with a notation that “Session ended with counsellor encouraging each attendee to continue to reflect on the choices they make in their everyday challenges in life that will either help to build their life or destroy it.”;[45]
·that on 4 July 2018 he participated in another Group Counselling Session on the topic of “Managing our Anger.”[46]
·that on 25 June 2018 the Applicant underwent Mental Health Screening with a Mental Health Nurse, which concluded with “Continue with regular scheduled Mental Health Assessments.”[47]
[40] Exhibit 5.
[41] Ibid, page 1 of 6.
[42] Ibid, page 2 of 6.
[43] Ibid, page 5 of 6.
[44] Ibid, page 5 of 126.
[45] Ibid, page 11 of 126.
[46] Ibid, page 13 of 126.
[47] Ibid, page 14 of 126.
In terms of reaching a concluded view about the likelihood of the Applicant re-offending, I return to the Applicant’s quite low level of insight into the nature of his offending. Mr Watson-Munro does not define the level of the Applicant’s insight and only says that “It would appear that he has developed some insight into the dynamics surrounding his behaviour…”[48] That, to my mind, is both an incomplete and inadequate assessment of the Applicant’s insight for present purposes. On one view, one could say the level of the Applicant’s insight into his offending is quite low based on (1) his refusal to accept the jury’s verdict and the decision of the New South Wales Court of Criminal Appeal and (2) the defiant tone he has adopted with Ms Fernandes and the pre-sentence report writer relied upon by Acting Judge Graham.
[48] Exhibit 4, Report of Mr Tim Watson-Munro, consultant psychologist, page 3.
To my mind, a more circumspect assessment of the Applicant’s insight involves a question of whether or not he has comprehended the cultural differences between his conception of how to responsibly approach and deal with interpersonal relationships with females compared to that expected of him by the Australian community. In short, the question of whether the Applicant understands how the concept of consent actually works in these sorts of situations remains unresolved. While the level of his insight remains unresolved, so does any question about the likelihood of his reoffending. Put simply, if he does not have a fulsome understanding or insight into what he has done wrong and why it is wrong, there can be no certainty that he will not reoffend. This is why I am of the view that while his risk of reoffending may be in the low-medium range, it nevertheless remains a real risk. I therefore find that there is a real likelihood that the Applicant will reoffend in the same manner that he has in the past – that is, in a very serious way.
Conclusion: Primary Consideration A
To summarise, my finding is that this Applicant’s demonstrated lack of insight into his offending, coupled with the incomplete and largely ongoing nature of treatment he must undertake, points to a convincing likelihood that he will engage in further serious conduct if returned to the Australian community. It is also quite likely that harm would be occasioned to others were he to re-offend and that such harm would be both substantial and serious, as has been the harm caused by his offending to date. In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-recovation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant’s Statement of Facts, Issues and Contentions speaks of (1) the Applicant having a newborn nephew who was born on 9 December 2018, and (2) one of his sisters-in-law expecting to give birth to a child in April 2019.[49]
[49] Exhibit 1, Applicant’s SFIC, page 5, paragraph [6].
A submission was put on behalf of the Applicant to the effect that Primary Consideration B is of some relevance to the present consideration because removing the Applicant from Australia “…would impact the next generations of family members in this close-knit family…” that contains the newborn nephew and the child due to be born in April of this year.[50]
[50] Ibid, paragraph [7].
As contended by the Respondent, this is a misconceived application of Primary Consideration B.[51] This is because paragraph 13.2(2) of the Direction makes it clear that Primary Consideration B only has application in respect of minor children at the time of this Tribunal’s decision.
[51] Exhibit 7, Respondent’s SFIC, page 8, paragraph [47].
It is a tenuous argument, at best, to purport to apply Primary Consideration B to the relationship between the Applicant and his one-month old nephew. It is doubtful that the Applicant has ever met this nephew and one is hard-pressed to identify any measureable level of weight attributable to such a contention.
While I can join with the Respondent’s concession that it would be in the best interests of the one-month old nephew for the cancelation decision to be revoked, I cannot allocate anything more than slight, if any, weight to Primary Consideration B.
Mention should also be made of two infant children belonging to “Witness 5”[52], who gave evidence at the hearing. Her evidence was to the effect that she met the Applicant while he was detained on Christmas Island and that they are “now dating”. She has two children from a previous marriage, a six year old and a four year old. When asked about how often she and the children speak with the Applicant, she replied with “two…or three times a week on the phone.” She added “They [her two infant children] have seen him [the Applicant] three times in person. The children see their biological fathers once every fortnight.”
[52] Note: to minimise the prospects of identification of the Applicant, five lay witnesses who gave evidence at the hearing were referred to as “Witness 1 – Witness 5” (inclusive), respectively. Those witnesses comprise: Witness 1 – The Applicant (who is referred to as the Applicant in this decision), Witness 2 – his mother, Witness 3 – his brother, Witness 4 – his brother and Witness 5 – his partner.

In terms of the future, Witness 5 said that she and the Applicant “…haven’t made plans for the future because of the uncertainty.” There is nothing in the material about the role or influence the Applicant has played on the lives of Witness 5’s two children, and in those circumstances, it is difficult to apply any particular weight to the interests of those children, having regard to the factors appearing in paragraph 13.2(4) of the Direction.
Accordingly, I allocate only slight, if any, weight to Primary Consideration B.
Primary Consideration C
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, I think the question of whether the Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in 2011 as a 17 year old and commenced offending in February 2013 (when he was 19 years old) and was then punished for that offending in October 2015;
·His first offence in this country was of such a serious nature that it warranted the immediate imposition of a significant custodial term of three years;
·He has been in custody on a continuous basis from June 2015 until the present time;
·For his single offending episode in this country, the Applicant has been sentenced to a custodial term of three years. Taking into account the time he has spent in immigration detention, the seriousness of the offending is such that lawful authority in this country has been caused to remove him from the community for something in the order of 46% of his total time here;
·Despite the best efforts of Mr Tim Watson-Munro, Ms Pearl Fernandes and the various practitioners/consultants appearing the IMHS records, there is no definitive medical or other independent expert opinion either (1) providing a cogent assessment of the Applicant’s level of insight into his offending that occurred in February 2013 or (2) giving this Tribunal any measure of confidence that the factor(s) predisposing him to so offend have been addressed or are otherwise under control, such that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae designed to assist a decision maker in reaching decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[53]
[53] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[54] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[54] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[55]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[my underlining]
[55] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[56] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[56] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term for his very serious offending, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His lack of insight into the nature of his offending;
(iii)My assessment of the significant risk of substantial harm to the Australian community were he to reoffend;
(iv)The largely incomplete nature of a defined regime of treatment and management of the Applicant’s psychological symptoms;
(v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed a serious and repugnant offence of a sexual nature, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, prove himself both to his own immediate family and in the community more broadly. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[57]
[57] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in 2011, aged 17 years. He commenced offending less than two years after coming here, when aged 19 years. He did not offend from February 2013 until June 2015, when he was placed in custody as a result of being charged with aggravated sexual assault. He was sentenced for that offence in October 2015. It can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis from June 2015 until the present time.
In terms of remunerative employment, the Applicant has not been entirely dilatory while in Australia. Acting Judge Graham noted in his sentencing remarks that the Applicant completed his Year 10 school certificate and that:
“He was an esteemed worker as a picker and packer at a mushroom facility in the Camden area. His employer came to court today to give some evidence about his reliability as an employee and about his general nature and character. It is clear she regards him with some respect as an employee and a person who has a significant capacity to demonstrate by his own actions a firm and committed work ethic.”[58]
[58] Exhibit 8, G Documents, G8, pages 20-21.
I have had regard to the letter of support from the Applicant’s former employers[59], who provided their comments with knowledge of the Applicant’s offending. The former employers “fully accept the severity of [the Applicant’s] actions, however, [they] do not believe he will be a disturbance to the security of [other] workers as [they] believe this offence is out of character which could be a result of the hardships he has faced in his life.”[60] These previous employers have offered a guarantee of employment for the Applicant were he to be released back into the community. I have also had regard to the various certificates of completed courses appearing in the G documents.[61]
[59] Exhibit 2(f), undated letter of support from the Applicant’s former employer.
[60] Ibid, page 1 of 1.
[61] See Exhibit 8, s501 G Documents, for example, pages 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 215, 216, 217, 218, 219, 220, 222, 223, 225, 226, 227, 228 and 229.
While he has a work history of sorts, it seems undeniable that virtually half of his adult life has been dominated by his time in either criminal custody or immigration detention as a result of his criminal offending. I am thus of the view that it is consistent with paragraph 13.3(1) of the Direction to find that the Australian community would expect that a non-citizen who has committed the very serious crime of aggravated sexual assault (in company with another person) will not be given the benefit of being able to remain in Australia.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs in favour of non-revocation.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(b)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.[62]
[62] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
At the hearing, both parties submitted that the appropriate course in the present case is to not determine whether Australia has non-refoulement obligations to the Applicant. This was on the basis that the Applicant is able to make an application for a Protection visa if the mandatory cancellation decision under review is not revoked. While I both concur with and agree to follow that submission, I nevertheless will, more out of an abundance of caution than anything else, briefly address this Other Consideration (a).
The Applicant has contended and continues to contend that he fears the prospect of returning to Iraq. In his Request for Revocation of a Mandatory Visa Cancellation under s 501(3A), he said:
“…
·If the Department of Immigration and Border Protection decides not to revoke the cancellation, I am sure I will not survive.
…
·We are a small non-Muslim minority in Iraq that suffered through centuries from Muslim oppression and persecution…We are still mistreated, insulted, degraded because Muslims claim that we are infidels, and we religiously unclean.
·We have tried to the best of our ability to survive in such volatile and hostile environment [sic] hoping that sanity, peace and security would improve somehow.
·The prevailing environment of violent persecution of the [religious minority grouping to which the Applicant says he belongs] including kidnapping, killings, extortion and forced conversion to Islam, generated in us strong fear and terror.
…
·My family has been subject to such persecution in Iraq…My sister was killed in a very brutal way.
…
·Because of my faith I would be in great danger back in Iraq. I was 17 years old when I fled Iraq. I know I would be discriminated and persecuted because of my religion if I returned. If I was not killed because of my religion, I would almost certainly die because I would have no-one in Iraq to support me.
…
·I cannot return back to Iraq as I do not have anyone there and my life would be in great danger...”[63]
[63] Exhibit 8, G Documents, G17, pages 111-113.
The Applicant seems to have raised his asserted traumatic experiences in Iraq at the time of being sentenced by Acting District Court Judge Graham in October 2015. The highest it was put by Acting Judge Graham was as follows:
“He [the Applicant] has been the subject of a presentence report prepared at the request of Community Corrections service and a psychological report prepared by Tim Watson-Munro, consultant forensic psychologist. The presentence report notes the troubled and traumatic upbringing that the offender [the Applicant] had. His early life was in Iraq from where his family fled to Syria. In each of those countries his family was subjected to some measure of violence and abuse. Notwithstanding those unpleasant acts, the family remained close, loving and supportive.”[64]
[64] Ibid, G8, page 70.
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WK) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[65] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[65][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[66] In Greene v Assistant Minister for Home Affairs,[67] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[68]
[66] [2018] FCA 650.
[67] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[68] Ibid, [19].

Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant has been residing in Australia on a Class XB, Subclass 202 Special Humanitarian visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa.[69] Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[69] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
As the Applicant is already on a Special Humanitarian visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that assessment was made before the Applicant came to Australia in May 2011. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).[70]
[70] Ali v Minister for Immigration and Border Protection (2017) 248 FCR 456, [2017] FCAFC 96, [33].
As things stand, the Applicant has given evidence of previous persecution against him, his family and the religious minority to which they belong in Iraq. While those claims were ventilated in evidence in chief and tested in cross-examination, it seems those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor on or prior to May 2011 that his claims for a Special Humanitarian visa were genuine. The Applicant has given evidence about his traumatic experiences in Iraq, but the totality of his evidence about harm to him, were he to be returned to Iraq, seems to centre on his possible persecution as a member of a religious minority.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his visa status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
The Respondent appropriately concedes that the Applicant “…has some close family ties to Australia and, at least for a short time, has contributed positively to the community.”[71]
[71] Exhibit 7, Respondent’s SFIC, page 11, [60].
The Applicant has the following immediate family members currently residing in Australia: his parents and three brothers. He has the following extended family also in Australia: three uncles, three aunts, approximately 15-20 cousins, a grandmother and his abovementioned newborn nephew.[72] It is clear that the strength, nature and duration of the Applicant’s ties to Australia are both palpable and significant. Consistent with paragraph 14.2(1)(b) of the Direction, this Other Consideration favours the Applicant.
[72] Exhibit 8, G Documents, G16, page 110. Note: the list of immediate and extended family members does not include the abovementioned nephew born in December 2018. This is because the document listing the Applicant’s immediate and extended family members dates from 30 November 2016 and, as such, pre-dates the birth of the nephew.
However, this finding must be tempered by the factors appearing at section 14.2(1)(a) of the Direction. The Applicant arrived here as a 17 year old, yet began offending relatively soon after coming here when aged 19 years. The unfortunate aspect of his offending is that the time he has spent in either criminal custody or immigration detention has dominated his time in this country. It can be fairly said that the time he has spent being removed from the Australian community has featured so significantly in his adult life thus far that it has adversely affected his capacity to contribute positively to the Australian community.
Consequently, this Other Consideration (b) moderately weighs in favour of revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of relevance in determining this Application.
(d) Impact on victims
While there is commentary by Acting Judge Graham about the impact of the Applicant’s very serious conduct on the subject complainant/victim, there is no actual victim impact statement (or equivalent) from the victim of the Applicant’s very serious conduct.
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
It is contended on behalf of the Applicant that if he is returned to Iraq, “…then he would face hardship…in terms of employment and support. However, this is minor issue [sic] compared to the fact that sending him to Iraq would be a death sentence. It is highly likely that he would be killed or targeted until killed.”[73]
[73] Exhibit 1, Applicant’s SFIC, page 8, paragraph [20].
The Respondent does not agree with this contention and cites the Country Information Report regarding Iraq produced by the Department of Foreign Affairs and Trade (“DFAT”) [74] in support of its position. Relevantly, the DFAT report provides:
“3.30 The Constitution gives explicit protection to the freedom of religious belief and practise of [identity of Applicant’s religious minority has been intentionally deleted]…DFAT understands that [identity of Applicant’s religious minority has been intentionally deleted] are not necessarily targeted on the basis of their religion, but that, as many are (or were) goldsmiths, they have been targeted by financially-motivated criminal gangs…
3.31 DFAT assesses that [identity of Applicant’s religious minority has been intentionally deleted] face a low risk of official discrimination. DFAT assesses that [identity of Applicant’s religious minority has been intentionally deleted] face a moderate risk of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority.[75]
[74] Exhibit 3.
[75] Ibid, pages 15 and 16.
I agree with the Respondent’s contention that any suggestion of a “death sentence” arising from the Applicant’s return to Iraq is a long way from how the position of the Applicant’s religious minority has been identified in the DFAT report.
However, on a literal application of the factors in paragraph 14.5 of the Direction, this Other Consideration (e) can sustain some measure of weight in favour of the Applicant. If removed from Australia, it is clear that the Applicant will experience difficulty in establishing himself and maintaining a basic standard of living in Iraq.
He is a relatively young man of 23-24 years, whose physical health seems robust, but who does appear to suffer from symptoms relating to depression and anxiety. The Applicant speaks Arabic and is surely familiar with the culture of Iraq. Social, medical and/or other economic support available to him in Iraq will be limited and I am mindful that it will be difficult for him to obtain treatment and support for his mental health issues in Iraq.
The real question is whether any difficulties and impediments the Applicant will face upon his return to Iraq are insurmountable. It is contended on behalf of the Applicant that, not only are those difficulties and impediments insurmountable, they are apparently fatal. The Respondent says that such a contention is a long way from the reality identified in the DFAT report. The difficulty with the Respondent’s contention is that the Applicant is clearly part of a large, loving and supportive family in Australia. He does not have and will significant difficulty in re-establishing that milieu in Iraq.
I have had regard to the various statutory declarations provided by Witness 2 – the Applicant’s mother, Witness 3 – his brother, Witness 4 – his brother and Witness 5 – his partner. Those documents comprise Exhibits 2(a), (b), (c) and (d). The overwhelming theme of the content of statements from his mother and two brothers is one of privations and struggle. There are cursory references to the Applicant’s offending but an absence of any real understanding of just how dimly the Australian views criminal behaviour for which the Applicant was convicted in October 2015.
The Applicant’s partner, Witness 5, defiantly says that “…[the Applicant] has told me about his crime when we first started talking. He has always been open and honest with me about it. I know he was found guilty but I don’t believe it was fair.”[76]
[76] Exhibit 2(d), page 1, paragraph [10].
Ultimately, I must balance the weight attributable to Other Consideration (e) with the Primary and any Other Considerations favouring non-revocation of the mandatory cancellation of his visa. I consider that Other Consideration (e) weighs in favour of the Applicant.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: weighs moderately in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant;
(e)Extent of impediments if removed: weighs in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation and outweighs all other Primary and Other Considerations combined.
·Primary Consideration B weighs either neutrally or, at best, slightly in favour of revocation;
·Primary Consideration C weighs in favour of non-revocation.
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 147 (one hundred and forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[sgd]..............................................
Associate
Dated: 25 January 2019

Date of hearing: 22 January 2019

Advocate for the Applicant: Ms Marta Mamarot

Solicitors for the Applicant: SouthWest Migration & Legal Services

Advocate for the Respondent: Mr Andras Markus

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	22 January 2019
Advocate for the Applicant:	Ms Marta Mamarot
Solicitors for the Applicant:	SouthWest Migration & Legal Services
Advocate for the Respondent:	Mr Andras Markus
Solicitors for the Respondent:	Australian Government Solicitor