Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 189

Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 189 (9 February 2022)
Division:GENERAL DIVISION
File Number: 2021/9116
Re:Steven Morgan
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:9 February 2022
Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is citizen of New Zealand – visa cancelled on character grounds – sexually based offending involving a child – late document submitted – ministerial direction No. 90 – relevant primary considerations – protection of Australian community – best interests of minor children in Australia – three Australian citizen children with significant health needs – expectations of Australian community – extent of impediments if removed – impact on victims – links to Australian community – applicant has resided in Australia for long period – risk of reoffending – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Migration Act 1958 (Cth), s 499, 500, 501, 501CA
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 174
Cases
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Secondary Materials
Migration Act 1948 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
9 February 2022
BACKGROUND

The Applicant is a citizen of New Zealand. He was born in that country in 1956. He states that he first came to Australia in 1977 on the SS Oriana, in company with his two brothers. It is true to say that he has resided in Australia since that time, with only relatively short visits back to New Zealand to see his parents while they were alive.
The Applicant last arrived in this country in September 2002 and was granted a Class TY Subclass 444 Special Category (Temporary) visa, which is a special visa available for eligible New Zealand citizens to live and work in Australia. Although the visa is not limited in duration, it is not a permanent visa and does not confer permanent residence. The visa granted to the Applicant in 2002 was cancelled on 27 April 2021, by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’).
The visa was cancelled under section 501(3A) of the Migration Act 1958 (‘the Act’) as the delegate was satisfied that the Applicant did not pass the “character test” in the Act because of the operation of subsection 501(6)(e)(i). Subsection 501(6) provides that a person does not pass the character test if a court in Australia or a foreign country has either convicted the person of one or more sexually based offences involving a child (see subsection 501(6)(e)(i)) or found the person guilty of such an offence or found a charge against the person proved for such an offence, even if the person was discharged without a conviction (see subsection 501(6)(e)(ii)).
When a person’s visa is mandatorily cancelled under section 501(3A) of the Act, section 501CA provides that the Minister must give him or her notice of that decision and invite the person to make representations about revocation of the original decision.
The Minister (or delegate) may revoke the original decision if, after considering such representations, the Minister is satisfied either that the person passes the “character test” or that there is “another reason” why the original decision should be revoked (see section 501CA(4)).
The required invitation was issued, and the Applicant made representations in relation to the cancellation of his visa on 30 April 2021. On 25 November 2021, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa. He was advised of that decision the following day. The Applicant may ask this Tribunal to review the decision of the delegate, which he did on 29 November 2021. His entitlement to do so is found in section 500(1)(ba) of the Act.
The Tribunal must make a decision in relation to the application for review within 84 days after the Applicant was notified of the decision on 25 November 2021. That period commenced on 27 November 2021 and ends on 18 February 2022. If the Tribunal does not make a decision within that statutory time period, then the decision under review is taken to have been affirmed (see section 500(6L) of the Act).
HEARING
A hearing was held on 3 February 2022 by video, as is allowed by section 33A of the Administrative Appeals Tribunal Act 1975. The Applicant represented himself, made submissions and gave evidence, and was cross-examined by Ms Samantha Liddy of Sparke Helmore Lawyers, representing the Respondent. The Applicant’s partner, Ms ‘MZ’, also gave evidence by telephone.
The Tribunal admitted into evidence a volume of documents collated by the Respondent (‘GD’ documents), as Exhibit R1, and a volume of supplementary documents (‘SGD’ documents), as Exhibit R2.
The Applicant submitted the following documents:
(a)Statement dated 6 January 2022 (Exhibit A1);
(b)Applicant’s bundle of supporting evidence, lodged 6 January 2022 (Exhibit A2);
(c)Instructions to then legal adviser with attachments (Exhibit A3);
(d)Psychological report for Applicant’s son, ‘TX’, dated 16 February 2021 (Exhibit A4);
(e)Medical letter from Dr Narul Islam, paediatrician, dated 23 August 2020 (Exhibit A5);
(f)Speech pathology progress summary reports for Applicant’s sons (Exhibit A6);
(g)School report for TX, dated Semester 2, 2021 (Exhibit A7);
(h)Christmas card from Ms MZ (Exhibit A8);
(i)Christmas card from Applicant’s son, ‘LX’ (Exhibit A9);
(j)Christmas card from Applicant’s son, ‘MX’ (Exhibit A10);
(k)Christmas card from Applicant’s son ‘TX’ (Exhibit A11); and
(l)Drawing by MX (Exhibit A12).
The Tribunal also took into account a written Statement of Facts, Issues and Contentions, dated 17 January 2022 submitted by the Respondent. At the conclusion of the hearing, the Tribunal reserved its decision.
Late document from Applicant
After the hearing, the Tribunal was made aware that the Applicant had sent (by express post) a letter to the Tribunal in relation to his matter. The letter is undated. It was received in the Tribunal’s Melbourne Registry on 2 February 2022 but not drawn to my attention until 8 February 2022. The Applicant did not refer to this letter during his submissions or evidence, nor when other exhibits from both parties were admitted into evidence.
On being made aware of the letter, I directed that a copy be provided to the Respondent, for information. Section 500(6J) of the Act relevantly provides that the Tribunal must not have ‘any regard to any document submitted in support of a person’s case’ unless a copy of the document was given to the Minister ‘at least two business days’ before the Tribunal holds a hearing, other than a directions hearing, in relation to the decision under review. In this matter, because of the day the Applicant was notified of the delegate’s decision, the ‘two business days’ concluded at the end of 31 January 2022. The Applicant was made aware of that strict provision in the Act during a directions hearing on 6 December 2021 and a reminder of its effect was also explicitly included in a written direction issued to the parties on 7 December 2021 (note 3 of that direction).
Notwithstanding that this letter was provided outside the provisions of section 500(6J) of the Act, had it included new information which had not been brought forward at the hearing or in other documents, I believe it would be open, in extremis, to the Tribunal to reconvene the hearing (see Uelese v Minister for Immigration and Border Protection [2015] HCA 15, per Nettle J, at [114]-[115]) (‘Uelese’). Uelese is authority for each day of a hearing under the legislative regime established in section 500 of the Act to be treated as a “separate” hearing, in relation to section 500(6J), and it could be argued that, as I had concluded the hearing at the end of proceedings, it would be unfair to the Minister to reconvene. But the principal purpose of section 500(6J) (and, for that matter, section 500(6H)) is so that the Minister is not ‘taken by surprise’ by information being submitted by an applicant. That could be dealt with, given fair notice, if the Tribunal considered the late information was new and important material. I stress that this was not a case where an applicant was trying to spring such a surprise; it may be accepted that the Applicant, not being someone who uses email and having posted his letter by express mail, assumed it would be in the hands of the Tribunal in good time before the hearing.
I have carefully read the letter and am satisfied that there is nothing in its contents which was not drawn out either when the Applicant made his oral opening and closing submissions, in his other written statements, or in his oral evidence. A postscript to the letter advised that his partner, Ms MZ, would be available to give evidence and provided her contact details. Ms MZ did give evidence. I am satisfied that the sentiments expressed in the letter were reflected in the Applicant’s evidence and have been properly taken into account in my deliberations and in these reasons.
QUESTIONS BEFORE THE TRIBUNAL
In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act there are two points to remember. First, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. Secondly, both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, (‘Gaspar’) the Federal Court (North ACJ) said, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal therefore must decide two questions. First, whether the Applicant fails the “character test” in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for “another reason.”
The mandatory cancellation of the visa
Was the Applicant convicted of sexually based offences involving a child, or found guilty of such an offence?
Before the Tribunal, was an Australian Criminal Intelligence Commission Check Results Report (‘ACIC Report’) dated 23 April 2021 for the Applicant (GD, pp 31-32). This document records that on 8 April 2021 before the Magistrates’ Court of Victoria the Applicant was convicted of the offence of Indecent act with child under 16 (two counts). He was sentenced to eight months’ imprisonment on each count, to be served concurrently. The prison term to be served was to be four months. The offending period was stated to be between 1997 and 2000. I will refer to these convictions as the ‘principal offences’.
The ACIC Report also states that on 20 February 2019, the Applicant was before the Magistrates’ Court of Queensland charged with an offence under section 174 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), namely Apply for, start, continue in, regulated employment. The date of the alleged offence was 27 August 2018. The Court found the matter proven but did not record a conviction and imposed a $1,000 fine on the Applicant. I will refer to this as the ‘2019 matter’.
Finally, the ACIC Report states that on 12 March 1996, the Applicant was before the Magistrates’ Court of Victoria charged with four counts of the offence of Indecent act with/in the presence of a child under 18. The Court recorded the charges as proven but without conviction and imposed a total fine of $2,000. I will refer to these offences as the ‘1996 matters proven’.
There is no definition of “sexually based offences” in the Act, so the Tribunal must look at the actual content of the elements of the offences of which the Applicant was convicted. The elements of the offences were set out in a preliminary brief and the Magistrate’s sentencing remarks and, in respect of the convictions in April 2021, the Tribunal finds that they satisfy the requirements of section 501(6)(e)(i) of falling into the category of convictions for one or more sexually based offences involving a child. The actual details of the offending are discussed later in these reasons.
The Tribunal considers that the other matters dealt with by the Magistrates’ Court of Victoria in 1996 could satisfy the requirements of section 501(6)(e)(ii) of the Act, as the Applicant had four charges of “sexually based offences” proven against him, without conviction. In this case, the nature of the offending was that the Applicant exposed his genitals to 11-year-old females and apparently had two of these children take nude photographs of him (SGD, pp 89-90). The circumstances surrounding this offending are unclear, and scant details were before the Tribunal. Ms Liddy advised the Tribunal that attempts to obtain further records had been met with the response that the records were no longer in existence and that the original complainant has died. In the circumstances, the Tribunal does not make a positive finding of section 501(6)(e)(ii) of the Act but will further discuss this offending below.
Finding in relation to the character test
The Tribunal is satisfied that at the time the Applicant’s visa was cancelled on 27 April 2021, he was serving a sentence of full-time imprisonment in a custodial institution in Victoria. The Tribunal finds that through his offending falling within the requirements set out in section 501(6)(e) of the Act, the Applicant fails the character test as referred to in section 501(3A)(ii) of the Act, so there was no discretion. The Respondent was required to cancel the Applicant’s visa by operation of law.
THE MINISTERIAL DIRECTION – DIRECTION NO. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the Minister made a direction under section 499, Direction No. 90 (‘the Direction’) which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
The Tribunal considered the primary and other considerations in the Direction, as relevant to the Applicant’s personal circumstances, his nationality, and his offending history.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and 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 (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
There is no evidence before the Tribunal that the Applicant has committed any act of family violence. That will be further dealt with below.
The principal offences
Although the Applicant was convicted of the principal offences in April 2021, the criminal conduct was found by the Court to have taken place over a period commencing in February 1997 and ending in December 2000.
The circumstances were that the victim was the child of a family the Applicant knew. He would stay with them when he was in their local area. He said he attended a local ballet school as something of a freelance photographer. There was apparently no commercial arrangement with the school but sometimes parents would pay for photographs of their children. He was also working at the time undertaking photo-finish work for local greyhound meetings. The family of the victim, it would appear, trusted him to undertake activities with all their children.
The victim of the principal offences was born in mid-1994 and was aged between three and six at the time of the offending. The Applicant was found to have touched her vagina on several occasions when he was in her company over a three-year period. Many years later the victim happened to see the Applicant at a local cinema. She subsequently told her boyfriend that the Applicant had touched her intimately when she was a child. The boyfriend suggested she tell her mother. The victim did so. Her mother wrote to the Applicant, who had moved interstate, and said she needed him to contact her about what her daughter had said. The Applicant telephoned the mother. A partial transcript of the telephone conversation, which was recorded on loudspeaker by a relative of the mother, and later given to Victoria Police, was in evidence. After initial denial, it would appear the Applicant told the mother during the telephone call that there might have been some touching but that “I haven’t done anything that wrong” (SGD, p 34).
The victim, in company with her mother, went and lodged a formal complaint with the police. Police officers subsequently interviewed the Applicant at his residence in Queensland. He was later charged and appeared in Court in Victoria, where he entered a guilty plea to two counts of the offences outlined above. He was sentenced to the term of imprisonment referred to above. His lawyers arranged, as part of the pre-sentencing preparation, for him to be examined by a forensic psychologist who furnished a report which was taken into account by Her Honour the Magistrate.
In respect to paragraph 8.1.1(1)(c) of the Direction, the Tribunal must have regard to the sentences imposed. The Applicant received eight-month sentences on each count, to be served concurrently. He was ordered to serve four months in gaol. On his release from custody, the Applicant was taken into immigration detention, his visa having been cancelled, which reverted him to being an illegal non-citizen.

At the time of the principal offences, as mentioned, the Applicant was doing freelance photographic work. He said that he was not engaged by the ballet school on any formal basis and just took photos on the off chance that parents might buy one. It was through this link that he came to know the victim and her family. He told police he often played games with the victim and her siblings, including taking them to the local swimming pool. It is clear to me, on the facts, that the victim’s parents had formed a bond of trust with the Applicant to be alone with their children, and had no suspicion that any improper, let alone criminal, activity was going on.
The transcript of the Magistrates’ Court hearing in April 2021 was before the Tribunal (GD, pp 35-41). Both counsels for the Applicant and for the Crown agreed that a sentence of imprisonment was warranted. Counsel for the Applicant submitted that the entry of a guilty plea at the earliest opportunity should be taken into account. Such a plea spared the victim from giving evidence. Her Honour the Magistrate said:
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 factors in mitigation that I have to take into account. One is the plea of guilty which is the most significant factor 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 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.
Her Honour told the Court that, if it was not for the plea of guilty, she would have sentenced the Applicant to 12 months’ gaol. She also placed the Applicant on the Sex Offender Register for life and stated that the order would be transferred to the Applicant’s state of residence.
In terms of the offending itself, the Victoria Police preliminary brief refers to several incidents stretching over the period between February 1997 and December 2000 where the Applicant would touch the victim’s vagina. The brief noted that there “were so many separate incidents over a three-year period that the complainant doesn’t remember each individual incident in detail”. The victim told the police that the incidents ceased when the Applicant formed a romantic relationship and moved in with his now de facto domestic partner.
Paragraphs 8.1.1(1)(d) and (e) of the Direction require the Tribunal to have regard to the frequency of offending and any trend of increased seriousness, and the cumulative effect of repeated offending.
The victim impact statement referred to by the sentencing Magistrate was not in the papers before the Tribunal, but the Applicant accepted in his oral evidence that there has been a long-term and detrimental effect on her. When asked by Ms Liddy whether he accepted that the offending took place over a prolonged period, he said he accepted that, in the sense that there were several incidents of offending of short duration, but spread over a period of about three years. He agreed with Ms Liddy that he did try and insert his finger into the victim’s vagina.
When asked whether he committed these offences over three years for sexual gratification, the Applicant responded:
I wasn’t myself. I wasn’t thinking. Trying to understand what makes people do these things. You don’t realize how much it will hurt the victim later in life.
When pressed as to whether he did these things for sexual gratification, the Applicant responded:
I’m not 100 per cent sure. I’m trying to understand. Maybe. It was small incidents. I was looking and maybe a few times touching, that was about it.
When asked what he meant by the term “small incidents”, the Applicant said:
What I mean is not carrying on. What I mean by that, on the day the timeframe didn’t carry on. I didn’t mean small – I know they are big incidents.
The Applicant accepted that the incidents were “big life events” for the victim and in response to a direct question from the Tribunal agreed they had a significant impact.
Ms Liddy asked the Applicant why he hid the offending for over 20 years. He responded: “Once my partner and I met I realized how important life is and how precious children are to you.”
Ms Liddy asked the Applicant whether, if the victim had not made a complaint to police, he would have brought it up. He responded:
My partner knew about it. I understand about being caring. I had never had any love in my life; I was lonely. Lonely and depressed. Never had a decent life.
The Respondent asked whether the Applicant thought all lonely people commit sexual offences against children. The Applicant responded: “I’ve had such a very hard and sad life. Maybe that’s why these things happen.”
The 1996 matters proven
Comprehensive details of the 1996 matters proven were not before the Tribunal. A print-out from a Victoria Police LEAP report records (SGD, p 90):
OFFENDER STEVEN WILLIAM MORGAN INTERVIEW 16/2/96 RE EXPOSING HIMSELF AT NUMEROUS FEMALES 11YRS OF AGE AT HIS HOME AND HAS HAD TWO OF THE VICTIMS TAKING NUDE PHOTOS OF HIMSELF…
Ms Liddy read this relevant extract out to the Applicant. He said he ‘'vaguely’ remembered it and said:
I can’t recall photos. Being naked in front of them, getting ready for work. These girls, they’d bash on the door and if it was unlocked, walk straight in. I’d have a shower and it was an old house, so I’d dry myself in the front room with the heater. I was weak. I’d get dressed while they were there.
He agreed that the victims were children and that he was an adult, and said “but not mature, I was a maladjusted person.”
Ms Liddy asked the Applicant whether he knew right from wrong at the time. He responded: “I’d say so. This is where the mind and actions play a part.”
Ms Liddy asked if he knew it was not right to be naked in front of these young girls. The Applicant responded: “Yes, I would say so.”
Noting that this offending did not appear to involve any physical contact, it is clearly wholly improper conduct for an adult male to expose himself to young children and compounded by involving them by having them take nude photographs of him. This has the effect of attempting to normalise highly sexualised conduct between an adult and a child.
The 2019 matter
The Applicant said he was doing voluntary work raking leaves at a public place, arranged by Centrelink. He said the organisers filled out a form and he signed it. He said he did not read it. Subsequently, he was charged with attempting to obtain a ‘blue card’ (i.e., a card for working with children) without properly disclosing a prior notifiable offence, which was the 2016 matters proven. The Applicant said when he appeared at Court the Magistrate was “angry” and told him that he should always read forms before he signed them. He was fined.
Paragraph 8.1.2(2)(b) refers to evidence of rehabilitation. When asked what steps he had taken to rehabilitate, the Applicant said: “Reading self-help books. How to be a mature, balanced person. How to respect life. I need to seek help if necessary. I don’t think I need medication.”
The Applicant said the only formal treatment he had had was from Dr Cunningham (see below) and referred to a letter from the prison where he served his sentence advising that he was not required to undertake any sex offender courses. He said he enquired about courses but was told by his case manager that it was not required, and said if released back into the community “I will do such courses and see doctors to understand my thinking.”
The Tribunal notes that in the papers (GD, p 83) was a prison conduct report recording that the Applicant has been well-behaved and polite and respectful. The report says:
Steven has been assessed and deemed not required [sic] for any offending behaviour programs. He has however, participated in a few Personal Development Programs (which he is submitting as supporting documentation) and he has found these programs to be very beneficial for him.
The Tribunal noted that a psychological report dated 7 April 2021 was in the papers (GD, p 84) from a Dr Aaron Cunningham, forensic psychologist. The Applicant confirmed that this is the Dr Cunningham he was referring to and that his lawyers arranged the consultation in connexion with his plea hearing. He said he had subsequently asked through his lawyer if Dr Cunningham could recommend any self-help books “to try and understand, and whether I should see him again”. The Applicant said he did not hear back from his lawyer.
When asked whether he had sought any psychological help prior to his offending, the Applicant said: “Since starting a family my life has turned around. It changed my understanding. I have got a book on mental health.”
Given that this offending is said to occur before February 1996 and the principal offences took place between 1997 and 2000, the Tribunal considers there has been a trend of increasing seriousness; the 1996 other matters did not involve physical contact, but the principal offences did.
The Tribunal must also consider (paragraph 8.1.1.(1)(g)) whether the Applicant has re-offended since being warned or otherwise made aware of the consequences of further offending in terms of his migration status. There was no contention from the Respondent that there had been any previous warning.
Overall, the Tribunal considers the Applicant’s offending to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. At the outset, there is no evidence of any other general offending by the Applicant, apart from a small number of low-range speeding offences.
The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.
Dr Cunningham administered a Wechsler Adult Intelligence Scale 4^th Edition (‘WAIS-IV’) test to screen the Applicant’s level of cognitive functioning. He recorded the result (GD, p 85) as:
On the Verbal Comprehension Index, Mr Morgan scored better than .5% of his age peers where 99.5% of his age peers would do better….On the Working Memory Index, Mr Morgan performed better than 37% of his age peers, where 63% of his age peers would do better.
Mr Morgan presents with a significant verbal comprehension impairment.
Dr Cunningham also administered the Risk for Sexual Violence Protocol (‘RSVP’) to assess risk of sexual reoffending. He recorded:
The RSVP comprises twenty-two individual risk factors reflecting the five content domains: Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment and Manageability. Mr Morgan presents with risk factors of Psychological Coercion in Sexual Violence, Extreme Minimisation and/or Denial of Sexual Violence, Problems With Self-Awareness, Problems With Stress and Coping, Problems with Intimate Relationships, Problems with Non-Intimate Relationships, Problems With Employment, Problems With Planning, Problems With Treatment and Problems With Supervision. In my opinion, Mr Morgan presents with a Low risk of sexual reoffending. Mr Morgan’s low risk is based on his current situation being in a stable romantic relationship and caring for his children. Mr Morgan’s risk would increase to Moderate should he not be in a relationship and be associated with potential victims. At the time of his offending, Mr Morgan was single and experienced loneliness and depression. Consistent with his verbal comprehension impairments, Mr Morgan’s risk is also based on his lack of insight into his internal psychological processes and his impairments in communication.
Dr Cunningham concluded that the Applicant did not present with a mental illness and that there was insufficient evidence for a diagnosis of paedophilia. He stated:
Mental Health and Offence Behaviour
Mr Morgan stated that he did not know what made him engage in the offence behaviour. He denied sexual fantasies regarding children. He did not think his offence behaviour would have affected the victim. In my opinion, this lack of empathy was a reflection of his intellectual impairments rather than reflecting a psychopathic personality.
Dr Cunningham concluded:
Mr Morgan presents with significant impairments in verbal comprehension. In my opinion, these impairments compromised his ability to cope with school, source and maintain stable employment and develop relationships with others. At the time of the offences, Mr Morgan was depressed, lonely and isolated. In the context of his impairments, Mr Morgan lacks insight into his own internal psychological and emotional processes. In my opinion, Mr Morgan’s difficulty understanding the motivations for his behaviour and his lack of empathy for the victim are reflections of these impairments. Mr Morgan has improved his mental state since forming a relationship with his current partner. He lives in [redacted] with his partner and his three disabled children. In my opinion, Mr Morgan’s partner, his age and responsibilities as a father are protective factors against future offending.
The Tribunal largely agrees with Dr Cunningham’s conclusion. During the Applicant’s oral evidence and in his oral submissions, the Applicant continually returned to repeating some pat phrases about “learning his lesson”, “how to be a decent and respectable human being” and the need to be “positive and balanced”. It was apparent to the Tribunal that he had absorbed these phrases through the self-help texts he said he has been reading. It was troubling that, in some of his responses, the Applicant responded in an ‘arm’s length’ or dissociated way. For example, when asked by the Respondent whether he agreed that his principal offences would have affected the victim, he said “I’m trying to understand why people do this kind of thing”. The Tribunal intervened to remind the Applicant that it was not “people”, it was him.
The Tribunal was left with the strong impression that many of the Applicant’s responses were coloured by his poor verbal skills. In this respect, he conveys the impression that he lacks empathy, but I suspect that impression may not be reliable and is conveyed because of a general inability of the Applicant to express himself. However, Dr Cunningham’s conclusion that he lacks insight into his own internal psychology is also the conclusion that the Tribunal drew. I conclude that this lack of insight is not driven by any callousness of the effect on his victim, but by a simple lack of appreciation of the effect of his acts.
It would appear from his report that Dr Cunningham was not furnished with information about the Applicant’s 2016 offending. There is no mention of it, nor any observations about trend or tendency. Dr Cunningham only mentions he was asked to examine and report on the Applicant in relation to the forthcoming Court appearance (i.e., the appearance for sentencing later in April 2021). It is also telling that Dr Cunningham, who assessed the Applicant on 1 April 2021, writes that the Applicant “did not think” his offending conduct would have affected the victim.
Although the Applicant agreed in his evidence with Ms Liddy’s description about the nature of the principal offences, in the intimate touching of a young child’s vagina. When Ms MZ gave evidence, she said she was aware of the complaint but had not read any of the police paperwork, which sets out the complaint in detail.
Ms MZ relevantly told the Tribunal:
…that was 22 years ago. That incident Steve says he was innocent, and he didn’t do those things….He feels he is innocent and didn’t make advances and didn’t go down that path. He did plead guilty, but he thinks he was innocent.
Accepting that the Applicant may have been very embarrassed, even reluctant, to explain his offending to his partner, Ms MZ’s contemporary evidence sits at odds with his profession to the Tribunal that he accepts he was guilty, and with the fact that he agreed he did the acts for which he was sentenced. I note particularly that Ms MZ was not expressing her own view, she was telling the Tribunal what the Applicant had told her about the complaint.
Ms MZ also said she was unaware that the Applicant was fined in relation to the 1996 offences, although she did know about them, saying: “I am aware he was naked, and a next-door neighbour came to the door – I don’t know any more than that”. Ms MZ remarked that she was overseas at the time; it was well before she commenced a relationship with the Applicant.
I do take account that Ms MZ said she had never seen any improper behaviour by the Applicant since she commenced a romantic relationship with him, but there does seem to be a gap between what he has told her and what he told the Tribunal, especially about his accepting all the elements of his offending.
In terms of the risk of re-offending, I adopt Dr Cunningham’s conclusion that it is a low risk but one that would rise to being a moderate risk if the Applicant was not in a stable domestic relationship. I am particularly concerned that the Applicant’s cognitive deficiencies have the effect of reducing his ability for insight into his offending and what motivated it, and that this could, if the protective circumstances change, significantly elevate the risk. The fact that he admitted being naked in front of young girls when an adult aged around 30 points to a significant dissonance, at least then, in appreciating what is improper and sexualised behaviour. He did not adequately explain this behaviour in his evidence, other than to say he was “weak.”
I was particularly concerned about his responses to questions about this 1996 matter. The Applicant said he ‘vaguely’ remembered it. I find that unlikely to be the case, given that it resulted in a charge and a court appearance and a court outcome. Either he has tried to shut it out of his mind, or he was being less than frank to the Tribunal. It is difficult to say which. It is notable that he was interviewed about the 1996 matter in February 1996 and appeared in Court in March of that year (SGD p 90 and GD, p 32). The principal offences were found to have commenced in January 1997.
Overall, taking into account Dr Cunningham’s professional opinion, the nature of the offending, the fact that there had been a prior matter also relating to indecency with young females, and the risk of re-offending, the Tribunal finds this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
The Respondent submitted that this primary consideration is not engaged. There was no evidence before the Tribunal of any offending or conduct that would fall within the category contemplated in this part of the Direction.
The Tribunal finds that this primary consideration is not engaged and therefore weighs neutrally.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than three relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

The Tribunal must take into account various factors, as relevant, set out in paragraph 8.4(4) of the Direction. These include whether the Applicant has a parental relationship with the children, the extent to which the Applicant is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Tribunal is satisfied to determine that three minor children fall into the category which mandates consideration of their best interests in this part of the Direction. They are the three children of the Applicant with his de facto domestic partner, Ms MZ. All the children are boys: TX, who was born in 2006 and is currently aged 15; LX who was born in 2007 and is currently aged 14; and MX, who was born in 2009 and is currently aged 12.
A distinguishing factor in considering the best interests of these three boys is that there is comprehensive medical evidence before the Tribunal that all of them have special needs. Their medical conditions vary but not to the extent that I consider requires differing determinations.
The oldest son, TX, has a diagnosis (GD, p 146) of Autism Spectrum Disorder level II, ADHD, and Intellectual Disability – Mild. Ms MZ in her evidence said TX’s conduct is characterised by rigid thinking and that he was becoming more “physical” as he gets older. She remarked that he has already been through ten carers engaged through the National Disability Insurance Scheme (‘NDIS’), because he finds it difficult to engage with anyone other than family.
The middle son, LX, has diagnoses of an autism spectrum disorder complicated by an intellectual disability with comorbidities of ADHD and anxiety (GD, p 128). He is on medication to assist with his anxiety.
The youngest son, MX, has a diagnosis of autism spectrum disorder and a potential assessment that he may have an underlying intellectual disability (GD, p 164). Administration of the Wechsler Preschool and Primary Scale of Intelligence – Fourth Edition, revealed a general cognitive ability in the “extremely low” range of intellectual functioning (GD, p 168).
Ms MZ confirmed in her evidence that each of the children has a separate NDIS plan which provides targeted help to cater for their special needs.
At paragraph 8.3(4), the Direction requires decision-makers to take into account certain factors where relevant. In respect of the relationship between the children and the Applicant, it is a parental relationship which has been constant from their birth until the last 12 months when the Applicant has been first serving his prison sentence and then in immigration detention. I am satisfied on the evidence of the Applicant and Ms MZ that the Applicant plays a positive role in the life of all three of his sons and that his offending conduct has had no effect on them (apart obviously from his current absence). Christmas cards and other communications between TX, LX and MX and their father all spoke of a loving son-to-father bond. Both the Applicant and Ms MZ said that they had not told their children the reason for their father’s absence because of their intellectual disabilities and because it would be something which would be likely, in Ms MZ’s view, to increase their anxiety. The Tribunal accepts this explanation completely.
The Tribunal notes Ms MZ’s evidence that the family moved to another state from Victoria because it was thought warmer weather would assist their sons’ medical conditions. After some false starts, they have gathered around them a group of specialist medical professionals and all the boys are now enrolled successfully at a special school. Ms MZ’s elderly mother lives with the family and provides what assistance she can, but she is understandably of great age and as the boys get older, they are becoming more physical and difficult to handle in that sense.
The Respondent submitted that Ms MZ has been able to fulfil the sole parental role over the last twelve months by herself. Ms MZ, when asked about this, said she had done this “only just” and that they had been in “survival mode” in the expectation that the Applicant would return home at the end of his sentence, and then his visa was cancelled, and he was detained. To the extent that it is submitted to the Tribunal that the measure of whether a parent can handle a parental role in the absence of the other parent when that absence is caused by the administration of the justice or immigration system, the Tribunal made clear in the hearing that carries very little purchase. The measure properly should look at what has generally been the parental role of the Applicant in the lives of the children, prior to the cancellation of the visa.
I am satisfied that the Applicant has played a major supportive and parental role, with Ms MZ, in the lives of the three relevant minor children throughout their lives, and that if he was returned to New Zealand, there would be a profound and detrimental effect on their best interests.
Overall, the Tribunal finds that the best interests of each of the minor children affected by the decision would be that the Applicant’s visa cancellation is revoked, and the weight of this primary consideration is relatively heavy.
Expectations of the Australian community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
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.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
The Direction lists at paragraph 8.4(2) specific sorts of conduct, one of which is relevant to the Applicant’s criminal history, at 8.4(2)(c):
(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, as well as other serious crimes against the elderly or other vulnerable persons…
The principal offences and the 2016 matters proven fall squarely into the category of serious crimes against children who are, ipso facto, vulnerable members of the community. In particular, the principal offences involved exploitation for sexual gratification of a very young child who could not know what was happening and who was completely subordinated to the predatory conduct of an adult whom her parents trusted.
The expectation of the Australian community is taken to be a “norm”. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a “norm”, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal accepts that the Applicant does not have a long history of offending. The offending was a long time ago but contained in one instance in 1996 and over the period between 1996 and 2000. While it was not constant offending in that period, it was maintained for around three years and clandestine. I further accept, putting aside the ‘blue card’ matter of 2019 and speeding infractions, that there is no evidence of the Applicant offending over the last 20 or so years. He has been before the Courts on three occasions, but two of these offences have related to improper conduct in the presence of female children, and the principal offences, grossly so.
I conclude that the expectation of the community would be that his visa is not restored. There is very little tolerance in society for adults sexually offending against children, no matter that the offending was many years ago. The evidence in the Magistrate’s sentencing remarks satisfies me, even without a copy of the victim impact statement, that the offending against that (now) young woman between 1997 and 2000 has had a lasting, perhaps life-long, negative effect on her.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the Applicant’s visa, and the weight I give that is heavy.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including;
(i)the strength nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
International non-refoulement obligations (paragraph 9.1)
International non-refoulement obligations relate to a case where a person is in prospect of being returned to a country where they may be at risk of a specific type of harm. The Applicant in this case would be returned to New Zealand. It was not contended by the parties that this particular consideration is relevant. The Tribunal finds that it weighs neutrally in this examination.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of the country. The Tribunal must take into account the Applicant’s age and health, any substantial language, or cultural barriers and social, medical, or economic support available to him if repatriated.
The Applicant told the Tribunal he was born and grew up in the town of Thames, on the North Island of New Zealand (GD, p 61). Thames is around an hour’s drive from Auckland. The Applicant came to Australia by sea in 1977. He said at that time he did not think New Zealand citizens had to present passports. The movement record in the papers before the Tribunal did not record that first arrival, but the Respondent did not contest his evidence in that regard. I am satisfied that he did first arrive in Australia, to live, sometime in 1977.
The Applicant arrived with his two brothers. He told the Tribunal that one brother has since died and he has not had regular contact with his surviving brother, with the Applicant saying this brother, last he heard, was suffering from prostate cancer. The Applicant did not know the current whereabouts of this brother. The movement record shows short absences of the Applicant from Australia, about every year, irregularly up until 2002. He said that he usually went annually with his brothers back to New Zealand to visit their parents, both of whom are now deceased.
The Applicant said he had two sisters in New Zealand (GD, p 72). One has significant disabilities caused by a tragic childhood accident. The other sister he believed now resides in an aged care community. The Applicant did not think any of his siblings would be able to provide him with any financial assistance if he was returned to New Zealand, and on the evidence the Tribunal accepts that.
New Zealand’s society is as close to Australia’s as any other country of the world. The Tribunal is satisfied that there would be no cultural or language barriers facing the Applicant if he was returned there. In terms of his health, he reported to Dr Cunningham that he was in good health apart from a hernia. The Applicant told the Tribunal in evidence that he has a “loose shoulder”. He records in the personal circumstances form he submitted to the Department that he has some arthritis (GD, p 78).
The Applicant will shortly attain 66 years of age. Given that he was born in Thames in New Zealand, on his own evidence, and previously held a visa available only to New Zealand citizens, I am satisfied that he is a New Zealand citizen and, as such, would be able to avail himself of the social security benefits available to other New Zealand citizens.
The Tribunal accepts that the Applicant would be significantly affected by being separated from his long-term de facto partner, his three sons and his de facto partner’s mother, and he would essentially have no support network upon which to draw in New Zealand, apart from one elderly sister and one who is disabled. He said he would be devastated if required to return.
The Tribunal finds that this consideration weighs slightly, on account of the Applicant’s age, in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
This part of the Direction requires the Tribunal to consider the impact of the decision on victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There was no evidence before the Tribunal that this is the case. There is no evidence that the victim in the principal offences knew of the Applicant’s migration status. The Tribunal notes that regarding the 1996 matters proven, the Department had received advice that the complainant in that matter has since died.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider any impact on 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 the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. The Applicant has lived in Australia since 1977, with only short periodical absences to visit his parents in New Zealand, and no absences from Australia since 2002.
In this matter, I am satisfied that there would be a very significant impact on five people who are Australian citizens: Ms MZ, their three sons, and Ms MZ’s mother. Ms MZ gave heartfelt evidence about the effect on her if the Applicant was deported, most particularly in her being able to care for three children with disabilities.
Despite Dr Cunningham’s observation (GD, p 87) that the Applicant’s cognitive impairments have compromised his ability to maintain stable employment, the Applicant told the Tribunal that he had worked full-time for a pavlova business in Melbourne for 15 years. He also worked, casually but for 16 years (GD, p 77), processing photo finishes for greyhound races, working as a kennel hand, and for some five years, picking apples.
His more recent employment has been sporadic, and he has been on social welfare since relocating interstate. The Tribunal accepts that the Applicant has made some contribution to the Australian economy through his work, particularly during the years he worked full-time.
Because of the length of time the Applicant has resided in Australia and the effect on Ms MZ and to a lesser extent her mother, the Tribunal finds this sub-consideration weighs strongly in favour of the Applicant.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
The Applicant’s work history is outlined above. The Tribunal does not consider this rises to the level generally contemplated in this sub-consideration, because whether the Applicant remains in Australia or leaves would not compromise a major project or important service in Australia. This sub-consideration therefore weighs neutrally.
Overall, this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
SUMMATION
The Tribunal has considered all the relevant primary and other considerations. In terms of the primary considerations relating to the protection of the Australian community and the expectations of that community, both weigh heavily against the Applicant. The primary consideration relating to the best interests of the Applicant’s three children weighs heavily in his favour. The remaining primary consideration is not engaged.
In reference to the other considerations, the extent of impediments if removed weighs slightly in his favour because of his age. The consideration relating to links with the Australian community weighs strongly in his favour, mainly because of his relationship with Ms MZ. The other considerations are not engaged and weigh neutrally in this assessment.
The Tribunal is not limited only to the contents of the Direction but does not consider any other factor has come to its attention that is relevant and has not been considered.
The Applicant committed a serious sexual offence against a very young child over a prolonged period lasting around three years. The Parliament has made clear, by the explicit provisions in section 501(6) of the Act, that such offending is to be regarded as axiomatically serious. The Applicant’s insight into the motivation for his offending is, in the Tribunal’s assessment, significantly lacking. His remorse also appears partial in that his partner says he has told her he was “innocent” and yet his oral evidence admitted the specific elements of the principal offences. While there is probably, as Dr Cunningham concluded, a low risk of him re-offending while in his current domestic relationship, any change in that would move him, also in Dr Cunningham’s clinical opinion, into being a moderate risk of committing further such crimes. A ‘low’ risk of such reoffending against vulnerable children is concerning. The ‘low’ risk assessment is therefore contingent and vulnerable to other factors. A ‘moderate’ risk, given the nature of the offending, would be in the Tribunal’s mind an unacceptable risk. Overall, I assess that the Applicant was deeply regretful for the consequences, including to him and his family, of his actions, but not deeply remorseful for the actions themselves or cognizant of why they were so wrong.
As the Tribunal has found, significant weight attaches to the best interests of the Applicant’s three young sons with disabilities, but the Tribunal after careful examination of the evidence is satisfied that the primary considerations, relating especially to the seriousness of the offence and the risk of re-offending, which weigh against revoking the mandatory cancellation of the visa outweigh the considerations which do weigh in his favour, and are determinative in this matter

The consequence is that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened. That means the decision under review is affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 9 February 2022

Date of hearing:

3 February 2022

Applicant:

Mr Steven Morgan (self-represented)

Counsel for the Respondent:

Ms Samantha Liddy

Solicitors for the Respondent:

Sparke Helmore Lawyers

Date of hearing:	3 February 2022
Applicant:	Mr Steven Morgan (self-represented)
Counsel for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers