Morgan and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2822

Morgan and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2822 (5 September 2023)
Division:GENERAL DIVISION
File Number: 2021/9116
Re:Steven William Morgan
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:5 September 2023
Place:Melbourne

The Tribunal:
(a) Sets aside the reviewable decision;
(b) Substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa; and
(c) Pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), directs that this decision comes into operation at 2.00pm (AEST) on 6 September 2023.
............................[sgd]..........................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special
Category (Temporary) visa – sexual offending involving a child – Applicant fails character test –
Mandatory visa cancellation – non-revocation decision – Ministerial Direction No. 99 applied –
Reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]
FCAFC 175
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)
287 FCR 294
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 69
Clarksonv R (2011) 32 VR 361
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020]
FCA 1211
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 374 ALR 601
Hughes v The Queen (2017) 263 CLR 338
Hunt v Minister for Home Affairs [2021] FCA 507
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA
1120
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021]
FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567Morgan v Minister for
Immigration, Citizenship and Multicultural Affairs [2023] FCA 392
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
R v G [2009] 1 AC 92
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Australian Bureau of Statistics, Sexual Violence – Victimisation (Article, 24 August 2023)
Cashmore, Judy and Rita Shackel, ‘The long-term effects of child sexual abuse’ (CFCA Paper
No.11 2013, Child Family Community Australia, January 2013)
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill
2014 (Cth), 10 [48] -11 [50]
Department of Home Affairs, Direct pathway to Australian citizenship for New Zealand citizens from
1 July 2023 (Web Page, 22 April 2023)
Ogloff, James et al, ‘Child sexual abuse and subsequent offending and victimisation: A 45 year
follow-up study’ (Trends & issues in crime and criminal justice No. 440, Australian Institute of
Criminology, June 2012)
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022)
< Police (Vic), ‘Sex offender register statistics; (Web Page, 28 June 2021) < FOR DECISION
Senior Member A. Nikolic AM CSC
5 September 2023
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”). The hearing was held on 30 and 31 August 2023 in person at the Tribunal’s Melbourne Registry. The Applicant was represented by Mr Mathew Kenneally of counsel, instructed by Victoria Legal Aid. The Respondent was represented by Mr Christopher Orchard, a solicitor from Sparke Helmore Lawyers.
For the following reasons, the Tribunal sets aside the reviewable decision and substitutes a decision that there is another reason for revocation. In order to provide sufficient time for the completion of administrative processes in the immigration detention centre, the Tribunal directs that this decision comes into operation at 2.00pm (AEST) on 6 September 2023.

LEGISLATIVE FRAMEWORK

Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”), read in conjunction with ss 501(6) and 501(7), obliges the Minister or their delegate[1] to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been convicted of sexually based offences involving a child.[2] The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond.
[1] The Act, s 496.
[2] Ibid, s 501(3A)(a)(ii), read in conjunction with s 501(6)(e)(i).
Section 501CA(4) of the Act confers a discretionary power to revoke the original decision, if the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.

BACKGROUND

The Applicant is a 67-year-old New Zealand citizen who first arrived in Australia at the age of 20. He has travelled to and from Australia several times but not since 2002.[3] The Applicant has been in a defacto relationship for over 20 years and has three children with his partner who are approximately 15 to 17 years of age. The Applicant’s partner and children are Australian citizens.[4] The children all have diagnosed conditions requiring specialised care. Prior to his arrest, the Applicant, his partner, his partner’s mother who is in her 80s, and the children, lived together interstate.
[3] Exhibit R1, 52-53.
[4] Ibid 112-119.
The Applicant’s criminal history in Australia discloses the following:[5]
(a)On 12 March 1996 he was found guilty without conviction of four charges of ‘Indecent act – with / presence child U/16’. He was fined an aggregate of $2000.
(b)On 20 February 2019 a finding of guilt without conviction is recorded against the Applicant for ‘Disqualified person – apply for, start, continue in, regulated employment (on 27/08/2018)’, for which he was fined $1000.
(c)On 8 April 2021 the Applicant was convicted in the Melbourne Magistrates’ Court, after pleading guilty to two counts of ‘Indecent act with child under 17’. The conduct underlying these convictions related to historical offences occurring between February 1997 and December 2000. The Applicant received a sentence of eight months’ imprisonment, with four months of the sentence suspended for two years.[6]
[5] Ibid 31-32.
[6] Ibid 33-34.
On 27 April 2021, in consequence of his convictions, a delegate of the Minister mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act (“cancellation decision”).[7]
[7] Ibid 42-48.
The Applicant made representations to have the cancellation decision revoked[8] but, on 25 November 2021, a delegate of the Minister declined to do so (“non-revocation decision”).
[8] Ibid 54-186.
On 9 February 2022, the Tribunal, differently constituted, affirmed the non-revocation decision. The Applicant appealed this to the Federal Court of Australia.
On 1 May 2023, Justice Hespe quashed the Tribunal’s decision and remitted the matter for determination according to law.[9]
[9] Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392 (Hespe J).
The matter was re-constituted within the Tribunal and, at a case management hearing on 16 June 2023, scheduling orders were issued for re-hearing.

ANONYMS

The` following anonyms will be used in these reasons:

PERSON ANONYM

Applicant’s defacto partner since 2001 Ms MZ

Applicant’s eldest child S1

Applicant’s middle child S2

Applicant’s youngest child S3
ISSUE

The Applicant fails the character test under s 501(6)(e)(i) of the Act. The issue to be determined is whether the discretion to revoke the visa cancellation is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so. The Tribunal must make ‘the correct or preferable decision’,[10] based on the material currently before it.[11] The Full Court in Bettencourt reflected with approval upon the approach taken in Viane, about how ‘another reason’ is determined. [12] Their Honours summarised the following principles:[13]
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[10] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (‘Nathanson’).
[11] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68].
[12] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
[13] Ibid at [27].
More recently, in Plaintiff M1/2021, the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be addressed: [14]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[14] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon, and Steward JJ).

DIRECTION 99

In making its decision, the Tribunal must comply with a ministerial direction that commenced on 3 March 2023 and is known as ‘Ministerial Direction 99’ (“the Direction”).[15] The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[15] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[16]
[16] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[17]
[17] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].

EVIDENCE

The following materials were taken into evidence:
(a)Joint Tribunal Appeal Book lodged by the Respondent numbering 405 pages;[18]
[18] Exhibit R1.
(b)Paper from the Australian Institute of Criminology dated June 2012, titled: ‘Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study’;[19]
[19] Exhibit R2.
(c)Paper from Child Family Community Australia dated 2013, titled: ‘The long-term effects of child sexual abuse’;[20]
[20] Exhibit R3.
(d)Paper from the Australian Bureau of Statistics released on 24 August 2023, titled: ‘Statistics about sexual assault and childhood sexual abuse, including characteristics of victim-survivors, victimisation rates, and police reporting’;[21]
[21] Exhibit R4.
(e)Applicant’s statement dated 21 July 2023 and supplementary statement dated 23 August 2023;[22]
[22] Exhibit A1.
(f)Statement of Ms MZ dated 21 July 2023 and supplementary statement dated 23 August 2023;[23]
[23] Exhibit A2.
(g)Report of forensic psychologist Dr Aaron Cunningham dated 22 July 2023 and addendum report dated 23 August 2023;[24]
[24] Exhibit A3.
(h)Correspondence relating to S1 comprising:[25]
[25] Exhibit A4.
(i)Medical letter from a consultant paediatrician dated 7 June 2023;
(ii)Confidential Guidance Report from a State Special School;
(iii)Letter from a Behaviour Support Practitioner dated 4 April 2023; and
(iv)Letter from a Behaviour Support Clinician dated 16 May 2022.
(i)Correspondence relating to S2 comprising:[26]
[26] Exhibit A5.
(i)Medical letter from a consultant paediatrician dated 26 May 2023;
(ii)Assistive Technology Report dated April 2023 for S2 and S3; and
(iii)NDIS Reports dated 2 September 2021 and 8 August 2023 from a clinical psychologist.
(j)Correspondence relating to S3 comprising:[27]
(i)Medical letter from a consultant paediatrician dated 26 May 2023;
(ii)NDIS Treatment Reports dated 2 September 2021 and 8 August 2023 from a clinical psychologist.
(k)Eight-page affidavit of lawyer Gregory John Hanson, without accompanying annexures, which was filed in the Applicant’s Federal Court proceeding.[28]
[27] Exhibit A6.
[28] Exhibit A7.

Applicant’s evidence

The Applicant adopted his statement as true and correct. The Tribunal has also considered his handwritten statements lodged in 2021 and 2022 seeking revocation.[29] A summary of the Applicant’s evidence follows.
[29] Exhibit R1, 214-219; 228-237; 251; 297-298.

Life in Australia, Ms MZ, and children’s care needs

The Applicant repeatedly emphasised his co-dependence with Ms MZ and the interests of their children. He also spoke of past employment, including in the racing industry and as a factory worker. He ceased employment in 2017 when in his 60’s. The Applicant said both he and Ms MZ gave up work to attend to their children’s increasing care needs. He has since received income support payments, while Ms MZ receives Carer Payment. The couple also look after Ms MZ’s mother who is in her 80’s and lives with the family. She can only help ‘a little bit’ with the children’s care needs.
The Applicant said his three children are approaching adulthood and engage in very challenging behaviours. This includes self-harm or threats of self-harm by S1 in particular, which involves items like knives, forks, and scissors. The Applicant recalled one occasion when he successfully convinced S1 to hand over a knife and calm down. He said the children have short attention spans, are easily annoyed, and can ‘get out of control’ in response to multiple triggers. The children all take medications.
The Applicant said he and Ms MZ have dealt with the ‘ups and downs’ of life together for more than 20 years and she has borne a heavy burden since his imprisonment. He speaks with Ms MZ and the children by telephone at times and writes letters for her to read to the children, which he finds more personal. The Applicant said the only time he has ever used a computer was at Centrelink.

Offending

The Applicant accepted the accuracy of his criminal history and agreed his offending was serious. Mr Orchard took him through the specific conduct underpinning his conviction, which the Applicant did not cavil with. The Applicant said his life around the time of his offending was contextualised by ‘years of living alone’. He referred to his formative years being characterised by bullying because of his diminutive stature and absence of friends. He realises his past conduct was ‘very wrong’ and has affected the victim throughout her life. He claimed not have ‘fully’ understand the wrongness of his actions at the time or what was ‘going through [his] mind’. When asked if his conduct was for sexual gratification, the Applicant replied: ‘I think so’. He accepted that he breached the trust of the victim’s family. When asked about a reference in evidence to him telling the victim’s mother when she confronted him in April 2017 that what he did was ‘not that bad’, the Applicant recalled being scared and trying to ‘cover’ himself.
When asked about his finding of guilt without conviction in 1996, for which he was fined $2000, and reportedly involved photographs,[30] the Applicant said he could not remember any photographs. He otherwise agreed to the conduct attributed to him and agreed with Mr Orchard’s proposition that the fine he received was lenient treatment from the Court.
[30] Ibid 468.
In terms of his 2019 offence relating to an application for regulated employment, the Applicant explained he was doing voluntary work at Centrelink’s direction, so he did not lose his income support payments. He recalled being asked to sign a pre-filled form that he did not realise was a working with children application. He has difficulty with forms and said Ms MZ usually completes any that are required. The Applicant said he has since become more aware about enquiring into any form he is asked to sign.
The Applicant said he told Ms MZ about his offending when first questioned by police but could not remember what he said, beyond telling her he committed sexual assault. The Applicant recalled it was a ‘fairly stressful’ conversation but denied telling Ms MZ he was innocent. When pressed by Mr Orchard, including by reference to Ms MZ’s evidence at the first Tribunal hearing that the Applicant told her he was innocent, the Applicant said maybe Ms MZ was ‘trying to make [him] not look as bad’.

Recidivism risk

The Applicant said he will never reoffend because he does not want to return to prison or repeat the bad experiences that following his visa cancellation. He said this would cause further ‘heartbreak and devastation’ for Ms MZ and their children.

Rehabilitation and protective factors

The Applicant referred to rehabilitative courses while imprisoned and said he reads ‘self-help books’. These remind him to think before he acts, to be a ‘good loyal partner’, and ‘as good a father’ as he can be. He also records lessons in his self-reflection journal such as ‘a very good book on autism’ to assist him with the children.

Health

When asked if he has any medical problems, the Applicant immediately responded ‘No’. When asked about references in evidence to a hip issue, the Applicant said he limps because of a bad hip and has been told it may require replacement. His left shoulder has also dislocated multiple times and he can’t lift his left arm above a certain level.

Plans if allowed to remain in Australia

If allowed to remain in Australia, the Applicant said he intends to be a loyal partner to Ms MZ and the best father he can be. He wants to give his children guidance and hope.

Plans if returned to New Zealand

The Applicant said it would ‘make life very difficult’ for Ms MZ and the children if they had to accompany him to New Zealand, which he did not think could occur. This is because of the established nature of his children’s care arrangements and Ms MZ’s ageing mother. He said the children currently go to a ‘very good school’ that directly supports their special needs and have established relationships with good doctors. The Applicant said his time in custody had put Ms MZ under a lot of stress. She suffers from chronic fatigue syndrome, and he worries about her ability to cope. The Applicant believes Ms MZ will become even more depressed if her mother dies and he is not there to ‘comfort her and help her feel safe’. He recalled how despondent she became when her father died some years ago.
The Applicant said there is no one in New Zealand to rely upon. He lost contact with his siblings over the years except for a younger sister who is mentally disabled and in care. Of his three younger brothers, one has passed away and the Applicant believes another may live in Thailand. He does not know where the other brother is. His last physical contact with any of his siblings was when their mother died in 2002. He has since exchanged a few cards with his disabled sister. The Applicant said if returned to New Zealand he has nowhere to live, no source of income, and no idea how to cope. He struggles with forms and bureaucratic procedures, which Ms MZ assists him with. He said removal will result in him becoming ‘extremely depressed and hopeless’. He will not have any ‘meaningful social connections’ and will miss Ms MZ and the children desperately.[31]
[31] Exhibit A1, 4 [30].

Evidence of Ms MZ

Ms MZ, who lives interstate, gave oral testimony by telephone. She adopted her statement dated 21 July 2023 and a supplementary statement dated 23 August 2023 as true and correct. The Tribunal has also considered her handwritten statements lodged in 2021 supporting the Applicant’s revocation request.[32] The key aspects of Ms MZ’s documentary evidence is summarised as follows:
[32] Exhibit R1, 94-104; 220-223.
(a)She doesn’t know how she will tell the children the Applicant is never coming home if his visa remains cancelled.
(b)Threats of self-harm from S1 have increased as she cannot give enough attention to each child herself because of their concurrent needs.
(c)The Applicant is physically stronger and more capable of physically restraining S1 from hurting himself when required.
(d)The children have a history of not adapting to new support workers provided by the NDIS, which has been less practically useful than anticipated.
(e)Ms MZ’s mother is limited in her capacity to help and the Applicant’s presence means her mother would not have to deal with the children’s altercations herself.
(f)Ms MZ states at paragraph 47 of her statement: “Apart from missing him, his absence has had a profoundly negative impact on my wellbeing.” At paragraph 50-51 Ms MZ expresses why this is the case:
‘I am struggling to cope with caring for our three boys without Steve’s practical assistance. Steve has always been an extremely supportive partner in raising our boys. He has always done the housework, dishes, washing and we were both able to share the load equally. He was equally responsible for looking after the boys’ needs and being there whenever he was needed by them or me…I now have to shoulder that responsibility”
(g)Ms MZ refers in her documentary evidence to the financial implications of the Applicant’s absence and said that even if he could alleviate her burden for a few hours a week, this would allow her to pick up a few hours of work to supplement their income: “Even a small amount of work and extra income would make a huge difference to all our lives and to my own happiness.”
The only topic raised during cross-examination by Mr Orchard was Ms MZ’s evidence at the first Tribunal hearing about the Applicant telling her he was innocent of his crimes. Ms MZ said her evidence at the last Tribunal hearing was truthful because this is what the Applicant told her. She first become aware of the Applicant’s past conduct in 2017 and agreed with Mr Orchard’s characterisation of their conversation about these issues as ‘confronting’ and ‘very memorable’. In the last week, however, Ms MZ said the Applicant’s solicitor, Mr Hanson, provided her with information about the charges and convictions. Ms MZ said she now has the information in ‘black and white’, had read through it, and accepts what the Applicant previously told her about his offending was untrue.

Evidence of Dr Cunningham

Forensic psychologist Dr Aaron Cunningham gave evidence by video. He adopted his report dated 22 July 2023 and an addendum to that report dated 23 August 2023 as true and correct. The Tribunal has also considered his report commissioned for the Applicant’s 2021 criminal proceeding. Dr Cunningham’s evidence is summarised as follows:
(a)Dr Cunningham consulted with the Applicant on 1 April 2021 prior to preparing his first report. He subsequently spoke with the Applicant by telephone on 21 and 22 July 2023 before preparing his later reports.
(b)Following psychometric assessment using the Wechsler Adult Intelligence Scale 4^th Edition (“WAIS-IV”), Dr Cunningham concluded that the Applicant presents with a ‘significant verbal comprehension impairment’. He was also noted to ‘lack insight into his internal psychological processes and his impairments in communication’. Assessment of the four scales under the WAIS-IV, however, did not disclose any intellectual disability. He said the Applicant’s memory results were ‘better than 37% of people his age’, putting him ‘in the middle of the normal range’. When asked by Mr Orchard about Ms MZ’s evidence at the last hearing that the Applicant told her he was innocent of his past offending, Dr Cunningham said there is a ‘time effect on memory’, but ‘no specific impairment’ that would stop the Applicant’ from remembering’ his past conduct. In any event, Dr Cunningham said he had already scored the Applicant higher in respect of ‘denial’, so this had been considered.
(c)Dr Cunningham administered the Risk for Sexual Violence Protocol (“RSVP”) to the Applicant, which he said is the most widely utilised sexual recidivism risk tool in psychology. Clinical judgement is applied to the risk profile that emerges from a framework of 20 risk factors under the RSVP. Dr Cunningham assessed the Applicant as a ‘low risk of sexual reoffending’. This includes because of the contextually different circumstances to those existing at the time of his offending when he was ‘single and experiencing loneliness and depression’. Dr Cunningham said the Applicant’s recidivism risk would rise to ‘moderate’ if he was not in a stable relationship with MZ, or something triggered a return to his past circumstances, or he became ‘associated with potential victims’.
(d)Dr Cunningham said the Applicant was rated in the ‘extreme minimisation or denial’ category on the RSVP, has difficulty understanding the motivations for his past behaviour, and demonstrated a lack of empathy during interview. Dr Cunningham considers these aspects of his presentation relate to impairments rather than any psychopathy, because there has not been a persistent history of repeated conduct or other indicators like narcissism or persistent antisocial history. Dr Cunningham likened the Applicant’s responses with respect to empathy as ‘similar to autism…being unable to put yourself in someone else’s shoes…he struggles with verbal communication…to put his emotions and thoughts into words’.
(e)Dr Cunningham said the Applicant now understands the wrongfulness of his past actions in hindsight, despite not being able to adequately articulate why it happened. He said the absence of any reoffending during the last 20 years, and the different context in the Applicant’s life since, ‘seems to be managing the risk’.
(f)Dr Cunningham said ‘underlying cracks’ arising from adverse psychological symptoms in the late 1990s were contextually relevant to the Applicant’s past conduct. He said the Applicant’s co-dependant bond with Ms MZ since and responsibilities as a father had alleviated his depression. Dr Cunningham said the sexual dimension of the Applicant’s relationship with Ms MZ is now less of a concern given he is approaching 70, because sexual drive decreases from middle age onwards. He said: ‘even if [the Applicant] is not sexually active, his current relationship with Ms MZ is ‘still protective’. He draws a ‘sense of purpose, meaning, and direction’ from his familial responsibilities and his circumstances during the last 20 years are entirely different to those existing at the time of his offending. This includes a sense of ‘being loved, worthy…not alone…accepted [by Ms MZ]…and serving a purpose to protect [Ms MZ and the children]’.
(g)Dr Cunningham said the Applicant may be unaware of the reason for his past offending because he ‘doesn’t want to go there’, but in any event had been ‘working against’ returning to that conduct with ‘self-improvement’. Dr Cunningham said the self-help books were not necessarily offence-specific, but about the Applicant being a better person. He said the Applicant was able to convey the ‘essential meanings’ of lessons he learned through self-reflection activities and any residual concerns arising from his historical conduct ‘can be managed in the community through treatment and low-level monitoring’.
(h)Dr Cunningham agreed that the conditions the Applicant is subjected to under sex offender’s legislation contributes to ameliorating recidivism concerns. He does not believe counselling is necessary for the Applicant, because his relationship with Ms MZ makes him want to be a better person. The self-help books are his pathway to doing that: ‘He’s getting the same kind of things from these books – positive mindsets, ways of coping with emotions. That’s good while he’s in this relationship’.
(i)Dr Cunningham said if the Applicant was removed from Australia, this could re-trigger his adverse symptoms of the past. A re-emergence of his depression, loneliness, and suicidal ideation would impair his thinking, reasoning, and cause him to ‘struggle more with self-management’. The increased risk of recidivism arising from this is a ‘risk factor that needs to be monitored’.

PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has committed sexually based offences involving a child.[33] It is uncontroversial that children are particularly vulnerable victims because of their age and undeveloped emotional maturity. It is similarly uncontroversial that long term physical and psychological harm can result from such offending. In Clarkson v R,[34] for example, reference was made to the remarks of Baroness Hale in an English case about the need to protect children from ‘premature sexual activity of all kinds’.[35]
[33] Ibid 35-41; 323-330.
[34] Clarkson v R (2011) 32 VR 361, [32] (Maxwell ACJ, Nettle, Neave, Redlich, and Harper JJA).
[35] R v G [2009] 1 AC 92, 107-108 [44]-[45] (Lord Hope, Baroness Hale, Lord Carswell and Lord Mance).

The Magistrate stated the following when sentencing the Applicant:
‘Mr Morgan, there must be a sentence of imprisonment because of the serious nature of the offending. Your victim was a very young child when she was offended against over a lengthy period of time and as we could have anticipated the victim impact statement shows that she has suffered long-term consequences. There are a number of matters in mitigation that I have to take into account. One is the plea of guilty which is the most significant matter I think in your favour. There is also the fact that there hasn't been any subsequent offending and these offences are 20 years ago. There is absolutely no criticism of the victim for not reporting them earlier, she was a young child, and we all know now how difficult it is for anyone to report offending, let alone a child who because of your treatment of her, corruption of her didn't actually know at the time that what was happening to her was very, very wrong.
I take into account your plea of guilty, the fact that you are an older offender, that you're isolated in a Victorian prison.
On both remaining charges you're sentenced to eight months' imprisonment of which four months is suspended for a period of two years…If it weren't for the plea of guilty I would have sentenced you to 12 months' imprisonment and it's not a discretionary matter, it's mandatory that I put you on the Sex Offender Register for life and that will - once you're released that order will be transferred to the [interstate location] jurisdiction…’[36]
[36] Ibid 40.
Mr Kenneally submitted that the gravity of the Applicant’s offending between 1996 to 2000 ‘speaks for itself’ and has caused lifelong consequences for the victim. In relation to the procedural offence heard in the Beenleigh Magistrates’ Court in February 2019,[37] Mr Kenneally submitted this is ‘objectively not serious’ because no conviction was recorded, a fine was imposed, and no harm was caused.[38] Having regard for the Applicant’s unchallenged evidence about the circumstances in which he signed the document resulting in this offence, the Tribunal accepts Mr Kenneally’s submission.
[37] Ibid 32.
[38] Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”), 4 [19].
The Tribunal accepts Mr Orchard’s submissions that the Applicant’s offending over 20 years ago was very serious in totality, involved vulnerable victims, breached the trust of the primary victim’s family, and reflects an escalation in seriousness over time.[39] This includes because the Applicant reoffended. The Tribunal also accepts the Applicant was a 40-year-old adult at the time of his offending and the repeat nature of his conduct between 1997-2000 means it cannot be regarded as isolated or impulsive.
[39] Respondent’s Statement of Facts’ Issues, and Contentions (“RSFIC”), 3-5 [14]-[21]; 6 [27].
Imprisonment is a sentence of last resort and the most severe sanction available.[40] The Applicant’s offending in the late 1990’s resulted in a sentence of imprisonment in 2021. That said, a sentence of eight months imprisonment, with four months suspended, is at the lower end of the maximum punishment available to the court. The Tribunal also notes the Applicant pleaded guilty to conduct occurring over 20 years ago, which meant the now adult victim was not required to give evidence.
[40] See e.g. Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) <
The Tribunal finds the Applicant’s offending, albeit historical and not repeated for some 20 years, is nevertheless very serious.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires assessment of the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. Justice Kerr has referred to this a ‘future-focussed assessment’[41] and evidence of past offending ‘is not, of itself, significantly probative’ of the committing of another offence.[42]
[41] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[42] Hughes v The Queen (2017) 263 CLR 338, 392 (Nettle J).
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J reasoned at [78] that:
…[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In Guo,[43] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty.’ The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’[44]
[43] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579 (‘Guo’).
[44] Exhibit R1, 574-575.
The harm that would be caused by a repeat of the Applicant’s offending is potentially devastating. It encompasses the possibility of serious, potentially lifelong psychological effects, which the statement from the now adult victim of the Applicant’s offending demonstrates.[45] The Tribunal accepts Mr Orchard’s submissions, drawn from the reports he tendered,[46] about the adverse effects resulting from sexual offending against children.
[45] Ibid 238-241; 323-330.
[46] RSFIC, 6 [25]-[26].
The Applicant attributes his offending to loneliness, depression, shyness, and bullying experienced since his school days, depriving him of making any friends.[47] He stated in documentary evidence that he did not consider the consequences of his actions and now deeply regrets what he has done:
‘I now fully understand the effects of trauma on a person and the repercussions these effects can have on a person as well as their loved ones, including family and friends, and how these effects can hinder lives, their development and their future, and be lifelong. I am extremely sorry to be the cause of such agony, and…feel very guilty about this. I will not be the cause or instigator of such behaviour again ever, whether I’m allowed to stay in Australia or am returned to New Zealand… I would like to apologise to my victim and express my sorrow, guilt and remorse for what I have done. I had not thought about the consequences of my actions at the time, either for my victim or for myself. I feel sorry for both of us. I am deeply disturbed that my victim has harboured such deep pain, despair and anger. I would not want to put anyone else ever through such feelings.’[48]
[47] Exhibit R1, 74.
[48] Ibid 79-80.
There is no evidence the Applicant has been other than compliant in custodial settings. Reports about his behaviour refer to him as consistently polite and respectful.[49]
[49] Ibid 83.
In terms of rehabilitation, the Tribunal has considered the following certificates for courses completed by the Applicant:[50]
(a)‘6 Hour AOD & Stress Management Program’ on 22 April 2021;
(b)‘12-Week Focus Men’s Club Workshop’; and
(c)‘People in Balance’ in May 2021.
[50] Ibid 89-92.
There is no evidence about what these programs entailed, and they are not offence specific. The Tribunal accepts, however, the Applicant was deemed by prison authorities not to require ‘any offending behaviour programs’.[51]
[51] Ibid 83.
In terms of the Applicant’s lack of insight or empathy, Dr Cunningham opines this relates to his impairments rather than any psychopathy and is ‘irrelevant to risk’. The Tribunal means no disrespect to Mr Morgan in observing that his presentation during the hearing conforms with Dr Cunningham’s opinion about verbal impairment. The Applicant struggled to convey his meaning and at times was not able to. The Tribunal is persuaded he has genuine difficulty recalling the detail of events occurring over 20 years ago. As Dr Cunningham opined, this may also relate to him not wanting ‘to go there’. The Applicant’s claims about remorse are diminished by the fact he has falsely claimed to Ms MZ since 2017 that he was innocent. This is so irrespective of whether embarrassment or some other reason caused him to make this false claim.
In terms of recidivism risk, the Applicant submitted there is ‘no risk’ of him reoffending.[52] He relies predominantly on his 20-year relationship with Ms MZ, the interests of his children, and the absence of repeat offending during the last 20 years. The Tribunal accepts Dr Cunningham’s evidence that the sense of worth the Applicant derives from his relationship with Ms MZ and contribution to the needs of their children, have been protective factors over the last 20 years. In that respect this is a somewhat unusual case in that the Applicant’s ability to remain law-abiding has been tested in the community for more than two decades.
[52] Ibid 76.
The Applicant’s life story reflects two contextually different periods. The first is during his childhood and adulthood into middle-age, during which his historical offending occurred. His life during this period is characterised by isolation, bullying in family / school / work contexts, inability to form friendships, absence of romantic relationships, depression, and periods of suicidal ideation. The second period follows the commencement of his relationship with Ms MZ in 2001, which has endured despite considerable stressors – most notably having three children with special needs. Ms MZ, who knows the Applicant best, said she has never seen any improper or objectionable behaviour by him during their relationship.
The Applicant is approaching 70 years of age and remains on the Sex Offender Register for life. This provides police with monitoring and intelligence-gathering powers directed at reducing recidivism risk, preventing him from working in child-related employment or volunteer duties, and assisting any future investigation or prosecution.[53] This is a lifelong obligation with a protective effect compared to other categories of offending.
[53] See e.g. Victoria Police (Vic), ‘Sex offender register statistics; (Web Page, 28 June 2021) <>
The Tribunal accepts that the contemporary consequences of the Applicant’s historical crimes have driven home hard lessons, most notably his loss of personal liberty for a much longer period than the prison sentence he was required to serve. The Tribunal is persuaded that the prospect of returning to prison and further separation from Ms MZ and the children acts to ameliorate his already low recidivism risk.
The Tribunal accepts Mr Cunningham’s opinion that the Applicant’s risk of sexual reoffending is low, and that only a return of the instability and emotional distress he experienced more than 20 years ago would elevate his risk profile. There is no basis on current facts to suggest the Applicant’s 20+ year relationship with Ms MZ may end, or that the historical factors relevant to his past offending may re-emerge, except perhaps following a non-revocation decision.
In the event of a non-revocation decision, Ms MZ would be confronted by a very difficult choice in considering whether she and the children accompany the Applicant to New Zealand. They would have to leave stable accommodation, and as settled a life as is possible in their circumstances, close to essential sources of therapeutic and other support. There is no evidence this is intended or possible. Faced with life apart from Ms MZ and the children, it is in that context the historical factors relevant to the Applicant’s past offending may re-emerge.
Except for the single procedural-type offence in 2018, for which no conviction was recorded, the Applicant has lived a law-abiding life for more than 20 years. This diminishes the weight given to this primary consideration notwithstanding the very serious nature of his past conduct. Set against that is the unexplained nature of his past conduct, the fact he was not truthful to Ms MZ about his guilt, and the potential for his recidivism risk to increase if his isolation, depression, and suicidal ideation re-emerge. On balance, the Tribunal does not accept the Applicant’s recidivism risk ‘weighs determinatively’ against him,[54] although this primary consideration does weigh substantially against revocation.
[54] RSFIC, 6 [24]; 8 [34].

Family violence committed by the non-citizen

This primary consideration is not relevant and carries neutral weight.

The strength, nature, and duration of ties to Australia

Clause 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Justice Collier has reasoned that this primary consideration is:[55]
‘Clearly intertwined with the issue of permanency of exclusion from Australia. Indeed I consider it likely that the stronger a visa-holder’s ties to Australia, the greater the consequence of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled’.
[55] Hunt v Minister for Home Affairs [2021] FCA 507, [53] (Collier J).
It is not contested that beyond Ms MZ, the three children, and Ms MZ’s mother, the Applicant has ‘no broad ties elsewhere’. Mr Kenneally’s submissions focussed on the practical effect on Ms MZ if the Applicant is removed, given she is consumed by the children’s care needs and those of her mother. Ms MZ has little respite from these responsibilities, Mr Kenneally also raised the risks to Ms MZ’s safety in addressing the children’s needs as they approach adulthood, given some of their conduct is increasingly aggressive and/or violent.
Mr Orchard submitted that the Applicant’s ties are ‘narrow’ and ‘confined almost entirely’ to the family members he lives with. It was further submitted there is no impact on family members apart from Ms MZ and the children, because Ms MZ’s mother and others are unaware of his situation. Mr Orchard contended that less weight should be given to the Applicant’s time in Australia because of the repeat nature of his offending and modest contribution through work between 1991 and 2017.
The Applicant spent his formative and early adult years in New Zealand but has since spent approximately 45 years in Australia. The Tribunal accepts he has made some positive contribution to the Australian community through work, paying taxes,[56] and helping raise his children in difficult circumstances. The Applicant refers in his evidence to a brother in Australia and Ms MZ’s mother.[57] He states, however, he is not close to any of his siblings and has not told Ms MZ’s mother about his situation. He said Ms MZ’s mother would nevertheless be upset to learn of a non-revocation decision.[58]
[56] Exhibit R1 77; 85 [2.1].
[57] Ibid 72.
[58] Ibid 72.
The Applicant has a very close relationship with Ms MZ and their three children, who are all Australian citizens.[59] Ms MZ’s relationship with the Applicant commenced over 20 years ago[60] and they remain very close.[61] A non-revocation decision would cause her, and the children, significant distress. Their lives are well established in Australia, including through vital access to educational, therapeutic, and other support. There is also the issue of what happens to Ms MZ’s elderly mother, who has lived at the family property since the death of her husband some years ago. A non-revocation decision would likely end the Applicant’s ability to meaningfully support Ms MZ and co-parent their children. Without the Applicant’s financial, practical, and emotional support, Ms MZ would experience continuing distress and hardship. This may adversely impact her mental and physical health.
[59] Ibid 112.
[60] Ibid 94-104.
[61] Ibid 243-250.
This is a case where the Applicant has very strong and longstanding relationships with a small number of family members in Australia, but the nature of his other relationships is extremely limited. That said, what relationships he has after 45 years in Australia, are here. This primary consideration weighs substantially in favour of revocation.

Best interests of minor children in Australia

Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.4(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has three children who are about 15 to 17 years of age.[62] The children live interstate on a property with Ms MZ and her elderly mother. The move to a warm weather location was intended to improve the children’s health and circumstances. Over time, the Applicant and Ms MZ have assembled a framework of carer support commensurate with the children’s needs. Mr Orchard submitted that the extent of this support ‘in large part offsets the difficulty experienced due to the Applicant’s absence from home’.
[62] Ibid 113-117.
Each child has variously been diagnosed with disabling conditions like autism spectrum disorder, ADHD, and/or intellectual disabilities with low cognitive functioning. Each receives support under Australia’s National Disability Insurance Scheme (“NDIS”). The Tribunal has considered reports, medical letters, and other documents from schools, a consultant paediatrician, consultant adolescent and intellectual disability psychiatrist, psychologist, occupational therapist, speech pathologist, and others.[63] The Tribunal has also considered a range of correspondence in the form of letters and cards suggestive of a very close and loving relationship between the Applicant and his children. A range of excuses has been used to explain the Applicant’s absence from their lives, although Ms MZ states these explanations are wearing thin.
[63] Ibid 120-186; 256-296; Exhibits A3-A5.
It is not possible on current facts to distinguish the children’s interests, beyond noting each has different characteristics, diagnoses, and needs. S1 seems to have particularly high care requirements. Due to the relative similarities in all children requiring a substantial degree of care and supports, their interests will be considered collectively. The children exhibit a range of challenging behaviours, are reluctant to accept care from others, and resist changes in daily routine. This is becoming harder for Ms MZ to handle, including because the children are approaching adulthood, are physically larger than her, and she suffers chronic fatigue syndrome. The children can exhibit extreme distress and other harmful conduct when separated from caregivers. Without the Applicant’s contribution, Ms MZ is limited in her ability to provide each child with individualised consideration.
There is no evidence the Applicant has ever constituted a risk to the children or may not play a positive role in their lives if released. There has been a significant period of absence and limited meaningful contact since his imprisonment in 2021, although he has tried to maintain some parenting relationship and assist Ms MZ by speaking with her and the children on the telephone and writing them letters.
The Tribunal finds that:
(a)All three children are vulnerable because of severe impairment and low levels of adaptive functioning. Their situation is exacerbated by approaching adulthood and the challenges of concurrently satisfying their learning, developmental and therapeutic needs. All three receive support under the NDIS within a well-established care framework in Australia.
(b)There is no evidence the children’s care needs will diminish in the foreseeable future. Expert evidence refers to one or more likely requiring support throughout their entire life.
(c)The children’s past distress about separation from the Applicant is likely to worsen if they believe their father will not return. The burden of care on Ms MZ may seem insurmountable, with potentially adverse consequences for her wellbeing. There is the potential for Ms MZ to experience carer burn out while attending to the children’s needs while concurrently supporting her elderly mother.
(d)The ability of Ms MZ and the children to relocate to New Zealand is complicated by several factors. These include the children’s well-established care framework in Australia and Ms MZ’s concurrent support for her elderly mother. Trying to replicate the children’s care needs in New Zealand would be extremely difficult and may have adverse consequences for them. There is no evidence that a comparator scheme to the NDIS is available in New Zealand, or whether the children would be entitled to comparable services.
A non-revocation decision would undoubtedly result in profound adverse consequences for Ms MZ and the children. It would impact the children’s best interests by separating them from a principal source of care and support. They would lose their only paternal role model and the Applicant’s financial contribution to their lives. It seems unlikely on current facts that the Applicant could provide for his own needs in New Zealand while concurrently helping support Ms MZ and their children in Australia. In the event of a non-revocation decision Ms MZ may also not be able to easily pursue her aspiration for some part time work. If Ms MZ did accompany the Applicant to New Zealand, that would have potentially adverse consequences for her elderly mother and disrupt the children’s well-established care framework. There is also the prospect they may engage in self-harm or other high-risk behaviours in response to significant disruption in their lives.
In terms of the Respondent’s submission that the Applicant could continue to ‘stay in contact with his sons by electronic or other means’, this is impacted by the Applicant’s computer illiteracy, impairment, and concurrent stressors of re-establishing his life in New Zealand. Communication by telephone is also a poor alternative to physical contact, particularly given the children’s unfortunate circumstances.
Revocation is in the children’s best interests and this primary consideration weighs substantially in favour of revocation.

Expectations of the Australian community

Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[64] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[65] The High Court refused an application for special leave to appeal from the orders in FYBR.[66]
[64] FYBRv Minister for Home Affairs (2019) 374 ALR 601, at 471–2 [66] (‘FYBR’) (Charlesworth J), and 476 [91].
[65] Ibid at 473 [75]–[76] (Charlesworth J).
[66] FYBR v Minister for Home Affairs [2020] HCA Trans 56.
The Applicant submitted that the character concerns enlivened by the Applicant’s historical offending are moderated by the fact that he has been of good behaviour for 20 years, during which much has changed in his life.
The Respondent submitted that this primary consideration weighs heavily in favour of non-revocation when regard is had to the norm stipulated in cl 8.4(1) and principles at cls 5.2(2)-(5) of the Direction.
The Applicant’s past offending raises character concerns within the meaning of cl 8.5(2)(c) of the Direction. The totality of his conduct is such that the Australian community would expect, as a norm, that the Government would not allow him to remain in Australia. The Applicant has breached the community’s expectation that non-citizens will obey Australian laws and he should therefore expect to forfeit the privilege of remaining here.[67] That said, he has lived in the community for more than 20 years without re-offending and higher tolerance would be extended to him by virtue of his long residence in Australia. On balance, this primary consideration weighs moderately against revocation.
[67] The Direction, cls 5.2(1)-(2).

OTHER CONSIDERATIONS
Legal consequences of the decision

The Tribunal finds this consideration is not enlivened by the available evidence.[68] It follows that cl 9.(1)(a) of the Direction carries neutral weight.
[68] ASFIC, 2 [7].

Extent of impediments if removed

Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

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

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 67 years old and ceased work in 2017. His concerns about a return to New Zealand centre on being able to re-establish himself and provide for his needs, without comparable practical or emotional support. The Applicant also refers to the sorrow, despair, and sense of loss that would accompany his removal after more than 45 years in Australia.[69]
[69] Exhibit R1, 79.
There are no cultural barriers disclosed by the evidence. That said, 95.5% of the Applicant’s age peers would do better than him on the ‘Verbal Comprehension Index’, and 63% of his age peers would outperform him on the ‘Working Memory Index’.[70] This underlies Dr Cunningham’s opinion that the Applicant has a ‘significant verbal comprehension impairment’, which in turn informs submissions that he will struggle with negotiating bureaucratic processes if removed.
[70] Ibid 85 [3.0].
In terms of mental health, Dr Cunningham stated the Applicant ‘did not present with a mental illness’.[71] There are general references to him experiencing depression and other symptomology at the time of his offending.[72] In terms of physical health, the evidence refers to the Applicant having a ‘loose left shoulder’ that repeatedly dislocates and ‘arthritis in [his] left hip’ that will likely require replacement in the future.[73] No reference is made to any medications taken. Age and these medical conditions impede the Applicant’s employability.
[71] Ibid 86 [4.0].
[72] Ibid 38 [6]; 86 [4.0]; 228 [6].
[73] Ibid 38 [6]-[7]; 78; 237 [81].
The Applicant’s parents in New Zealand have died. His evidence about losing contact with siblings during the last 20 years, except for exchanging cards with one sister in care with a mental disability,[74] is uncontested. There is no evidence he has any sources of prosocial support in New Zealand. He fears a return to social isolation and deteriorating mental health. Through the reports of Dr Cunningham and affidavit of Greg Hanson, the Applicant also raises impediments he would encounter in finding work in New Zealand, forming new associations, and navigating bureaucratic requirements for access to the age pension and public housing. These claims arise from his age, impairments, and computer illiteracy.
[74] Ibid 72.
Mr Orchard accepts the Applicant has lost contact with siblings and that his impairments will make it more difficult to establish himself in New Zealand. It is submitted, however, that he spent the early part of his life in New Zealand and any unfamiliarity would be temporary. It is further submitted the Applicant has the same access to social, medical, and economic support as other New Zealanders.
If removed, the Applicant would likely be eligible for age pension payments and perhaps transitional assistance under a New Zealand law for people repatriated from other countries.[75] The Tribunal accepts the Respondent’s contention that if he required it, the Applicant would be entitled to the same support available to other New Zealanders who meet relevant prerequisites. That said, after living in Australia for most of his life, the Applicant would be confronted by a difficult period of transition. This includes because of his advancing years and impairments, criminal history in Australia, unfamiliarity with New Zealand’s bureaucratic requirements, and lack of family or other prosocial support. These impediments would only be exacerbated by likely permanent removal from Ms MZ and their children, which Dr Cunningham said may impact his capacity for self-care. Despite the comparable nature of life in Australia and New Zealand, the Applicant’s specific circumstances make any transition more difficult than would be the case for someone without his impairments, or who is younger, more computer literate, and with some source of family or prosocial support in New Zealand.
[75] Returning Offenders (Management and Information) Act 2015 (NZ).
This consideration weighs at least moderately in favour of revocation.

Impact on victims

Clause 9.3 of the Direction is not enlivened and carries neutral weight.

Impact on Australian business interests

Clause 9.4 of the Direction is not enlivened and carries neutral weight.

Additional considerations

No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.

CONCLUSION

Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. On these facts, the Tribunal does not consider it necessary to depart from the guidance that greater weight ‘should generally be given’ to the primary considerations.
The Applicant has lived in Australia for approximately 45 years. His offending, while historical and not repeated for some 20 years, is nevertheless very serious. The totality of his past conduct is such that the Australian community would expect, as a norm, that the Government would not allow him to remain in Australia. The Tribunal accepts Dr Cunningham’s evidence, however, that the Applicant’s recidivism risk is low and a return to the contextual circumstances characterising his past crimes is not currently foreseeable. The Tribunal also accepts that the Applicant’s relationship with MZ, and interests of their children, notwithstanding considerable stressors, have given his life meaning and purpose.
It is highly unlikely Ms MZ, the children, or Ms MZ’s mother could accompany the Applicant to New Zealand. That is because of the well-established nature of their lives in Australia, including stable accommodation and an established network of support to address the children’s needs.
Apart from his relationship with Ms MZ, their children, and Ms MZ’s mother, the Applicant’s other ties in Australia are extremely limited. That said, he has lived in Australia for approximately 45 years and removal from his most meaningful sources of familial support and self-worth would be devastating.
The Tribunal accepts Mr Orchard’s submission that the interests of the Applicant’s children is perhaps the strongest feature of his case. All three are vulnerable because of severe impairment and low levels of adaptive functioning. Their situation is exacerbated by approaching adulthood. All three receive support under the NDIS for complex needs within a well-established care framework. There is no evidence this could be replicated in New Zealand and a non-revocation decision would result in profound consequences for them and Ms MZ. It would impact the children’s best interests by separating them from their principal source of care, support, only paternal role model, and the Applicant’s financial contribution to their lives.
After living in Australia for most of his life, the Applicant would be confronted by a very difficult period of transition if removed. This includes because of advancing years, impairments, his criminal history in Australia, unfamiliarity with New Zealand’s bureaucratic requirements, and lack of family or prosocial support. These impediments would only be exacerbated by his removal from Ms MZ and their children, which Dr Cunningham said may impact his ability to attend to self-care. Despite the comparable nature of life in Australia and New Zealand, the Applicant’s specific circumstances make any transition more difficult than would be the case for someone without his impairments, or who is younger, more computer literate, and with some source of family or prosocial support.

Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations Strength, nature and duration of ties to Australia, Best interests of minor children, and the other consideration Extent of impediments if removed, outweigh the weight given to the two primary considerations weighing in favour of non-revocation.
DECISION
It follows that the Tribunal:
(a)Sets aside the reviewable decision;
(b)Substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa; and
(c)Pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), directs that this decision comes into operation at 2.00pm (AEST) on 6 September 2023

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 5 September 2023

Date of hearing:

30 and 31 August 2023

Advocate for the Applicant:

Mr Mathew Kenneally

Solicitors for the Applicant

Victoria Legal Aid

Advocate for the Respondent:

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore Lawyers

PERSON	ANONYM
Applicant’s defacto partner since 2001	Ms MZ
Applicant’s eldest child	S1
Applicant’s middle child	S2
Applicant’s youngest child	S3

Date of hearing:	30 and 31 August 2023
Advocate for the Applicant:	Mr Mathew Kenneally
Solicitors for the Applicant	Victoria Legal Aid
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers