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

[2023] AATA 189

MPTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 189 (17 February 2023)

Division:GENERAL DIVISION

File Number:          2022/9972

Re:MPTK  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mr A. Maryniak KC, Member

Date:17 February 2023

Place:Melbourne

The Tribunal affirms the decision under review.

.......................[sgd].................................................

Mr A. Maryniak KC, Member

Catchwords

MIGRATION - mandatory cancellation of Five Year Resident Return (Subclass 155) visa - non-revocation of mandatory cancellation decision - substantial criminal record - where Applicant accepts he does not pass the character test - whether there is another reason to revoke mandatory cancellation decision - decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Secondary Materials

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

17 February 2023

INTRODUCTION

1. The Applicant seeks review of a decision of a delegate of the Respondent made 29 November 2022, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of the Applicant’s Five Year Resident Return (Subclass 155) visa under s 501(3A) of the Act.

2. The 45-year old Applicant arrived in Australia in 2003, aged 20, on a student visa. Since 2012, he has been granted a series of five year resident return visas up to the recent mandatory cancellation on 25 February 2020. His mother and some relatives live in Australia and his 46-year old brother and his family, including a disabled son, live in Sri Lanka.

3. In May 2019, the Applicant was sentenced to four years and three months imprisonment for conviction of four charges of sexual penetration of a 16 or 17 year old child under care, supervision or authority, and one related charge of possession of child abuse material. The four sexual penetration charges represented multiple episodes of offending, including occasions of vaginal, anal and oral penetration of the victim.[1] There was a non-parole period of 26 months and the Applicant remained in prison at the time of this hearing.

   [1] G4, 28[2].

4. The Tribunal has considered the documentary evidence tendered, comprising exhibits A1 to A16, R1 to R3 and T1. The Tribunal has also considered the oral evidence of the Applicant, Mr Ian MacKinnon, Consultant Psychologist engaged by the Applicant, the Applicant’s mother, Dr L and her husband, Mr H. In particular, the Tribunal has considered the sentencing Judge’s remarks, the assessment of the Applicant by Mr Patrick Newton, a Clinical Psychologist, dated 3 December 2018, the report of Provisional Psychologist Peter Hanley dated 18 April 2019 and the draft report of Mr MacKinnon dated 20 January 2023 together with his final report, in the context discussed in paragraph [34] below, dated 25 January 2023. The Tribunal has also considered the submissions of the parties.

   BACKGROUND

5. The Applicant had an unfortunate and difficult childhood in Sri Lanka. He lived with an alcoholic and abusive father until aged 15, when his father died of a heart attack. He was bullied at school which resulted in him being isolated and lonely as a student. Further, at around 10 years of age, the Applicant was sexually abused by a neighbour. He gave oral evidence that this occurred somewhere between 10 and 20 occasions over a six month period.

6. In Australia, the Applicant initially worked as a motor mechanic and a contract cleaner, then commenced instructing at dance studios in Melbourne. In 2015 he started his own dance school business, having been a co-owner of a dance/Zumba studio since 2012.

7. The Applicant first met the victim when she was aged 15. She was attending his dance school, having enrolled in early 2016. The child victim had ‘significant learning difficulties’.[2] In 2016 when the Applicant took her on in his dance classes he was informed by his then partner and instructor colleague that she was a ‘slow learner’, and was ‘hard to teach’. He “noticed” her during the second half of 2016 and began to pursue his interest in her over the course of several months. The Applicant gave evidence that the victim “wanted to” enter into such a relationship, however was confused and unsure before their first sexual liaison on 8 March 2017. A clandestine sexual relationship between the Applicant and the victim then continued until 8 January 2018, whilst the victim was 16 to 17 years old. It ended because the victim’s parents discovered it and informed the police.

   [2] G-Documents 28[6]; Psychometric Assessment Report dated 4 June 2015: SG1 497-500.

8. The Applicant gave evidence that he was not aware that such a relationship was illegal at the time, despite having lived in Australia since 2003. He noted that in Sri Lanka, girls often got married at 16 years old. However, he knew at some point the victim believed that if her dad found out about their relationship, he would “kill” the Applicant.[3] Mr MacKinnon, Consultant Psychologist, testified that there is a common misconception in the general community in Melbourne that women as young as 16 years old can consent to sexual relations with adults. Mr MacKinnon also testified that in his professional opinion the Applicant knew there was at least “something wrong” with the sexual relationship because it was kept secret. Obviously, ignorance is no excuse, as is evident from the convictions and consequential significant term of imprisonment in the absence of any priors.

   [3] Exhibit A1, [17].

   LEGISLATIVE FRAMEWORK

9. The source of the Tribunal’s jurisdiction to review this matter comes from s 500(1)(ba) of the Act, together with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

10. Section 501(3A) of the Act, together with ss 501(6) and (7), requires the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.

11. Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the cancellation decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

12. In circumstances where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

    Direction 90

13. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Tribunal is bound to apply the Direction in these reasons.[4]

    [4] Migration Act 1958 (Cth) s 499(2A).

14. The Tribunal is to consider, inter alia, the objectives and principles set out in paragraph 5 of the Direction. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2, as follows:

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

    (2)  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. However, Australia may 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.

    (5)  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 8.4(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. Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, the Tribunal must take into account the considerations in paragraphs 8 and 9 where relevant to the decision. The following are 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 best interests of minor children in Australia; and

    (d)expectations of the Australian community.

16. Paragraph 9 identifies the following non-exhaustive list of other considerations to be taken into account where relevant:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

17. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.[5] The weighing process is a matter for the individual decision maker.[6]

    [5] Direction 90, 7.

    [6] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 [57].

    CONSIDERATION

    Does the Applicant pass the character test?[7]

    [7] As defined by s 501 of the Act.

18. The Applicant concedes, hence it is not in issue, that he does not pass the character test because of his “substantial criminal record”.[8] The Tribunal finds accordingly.

    [8] ss 501(6)(a) and 501(7)(c) of the Act.

    Is there another reason why the visa cancellation should be revoked?

19. The Tribunal is therefore to determine whether it should exercise its discretion under s 501CA(4) of the Act to revoke the Applicant’s visa cancellation on the basis that there is another reason to do so pursuant to s 501CA(4)(b)(ii). The Tribunal is required to make this determination by reference to the Applicant’s representations, which the Tribunal is obligated to read, identify, understand and evaluate.[9]

    PRIMARY CONSIDERATIONS

    [9] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22], [36].

    Protection of the Australian community

20. This consideration is guided by the principle that the Australian ‘Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’. Entering 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. It is necessary to consider both the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.[10]

    [10] Direction 90, 8.1(2).

    Nature and seriousness of the Applicant’s conduct to date

21. The Applicant’s conduct to date is considered very serious as it involves sexual crimes committed against a vulnerable member of the community.[11] The imposition of a lengthy custodial sentence further denotes the seriousness of the Applicant’s conduct in circumstances where the Applicant has no prior criminal history and where imprisonment is considered a sentence of last resort.

    [11] Ibid 8.1.1(1).

22. The Tribunal notes that the sexual relationship extended from March 2017 to January 2018, and only ended upon intervention by the police through the victim’s parents’ discovery. On occasions the Applicant did not wear a condom, exposing the victim to the obvious health risks.

23. The Applicant accepts his conduct was very serious and that such seriousness is amplified by the power imbalance between him and his victim, a child under his care and supervision.  Consistent with the victim impact statements from the victim and her parents,[12] the Applicant also accepts the serious psychological and perhaps physical harm, and the breakdown of personal and familial relationships, that could result if the Applicant were to re-offend in a similar manner.

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

    [12] SG1 11-22.

24. In assessing the risk to the Australian community regard should be had 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’.[13] Some conduct and the harm that would be caused if it were repeated is so serious that any risk that it may be repeated may be unacceptable.[14]

    [13] Direction 90, 8.1.2(1).

    [14] Ibid.

25. As noted above the Applicant accepts the serious consequential harm that could result from any re-offending. However, he submits that he is rehabilitated. He submits that if he were to start up a new dance school, he would not be able to teach children as he is on the Sex Offenders Register and is now clearly aware that any future re-offending will result in further imprisonment and, highly likely, deportation. He knows that his sexual relationship with the victim was unlawful and submits he is not the person he was at the time of the offending.

26. The sentencing Judge noted that the Applicant entered a plea of guilty at the first reasonable opportunity, which reflected his genuine remorse. Mr Patrick Newton, a Clinical and Forensic Psychologist, conducted an extensive clinical consultation on 22 November 2018. During that consultation, the Applicant told Mr Newton that he “always told [the victim] that unless she was OK with things we wouldn’t go ahead. It was only when she was ready that anything would happen” and that at each stage of sexual intimacy, the Applicant ‘considered that the [victim] was “in control” of their relationship’.[15] There is a tension between the Applicant’s perspective on who was in control, and other evidence before the Tribunal. This evidence includes text messages, the contents of which suggest that the Applicant was driving the various stages of their sexual relationship as they developed.[16]

    [15] SG2, 590.

    [16] See for example SG1 279; 317-320; 325-327; 459; 477; 482.

27. Mr Newton stated that the Applicant would ‘clearly benefit from participation in offence-specific treatment to improve his insight and assist him to ensure that there is no repeat of such behaviour in the future’.[17] He stated that the Applicant had ‘limited insight into his offending’,[18] and concluded that he posed a Moderate Risk of recidivism to sexual offending. He added that it was likely that with appropriately targeted treatment and use of other containment strategies, the Applicant’s risk of recidivism would be reduced over the medium term.[19]

    [17] Ibid 593.

    [18] Ibid 594.

    [19] Ibid 595.

28. On 18 April 2019, Mr Hanley provided a report which ‘should not be substituted for a comprehensive forensic psychological assessment’,[20] hence it has a limited scope compared to a comprehensive assessment. Following eight sessions with the Applicant that commenced on 16 January 2019, Mr Hanley reported that the Applicant had developed good insight into his offending, had expressed a willingness to remain engaged in further treatment, and that Mr Hanley recommended he do so. Mr Hanley stated that further treatment was required to address issues relating to the Applicant’s underlying trauma, interpersonal and emotional skills, and to consolidate the gains the Applicant had then made.[21] The sentencing Judge agreed and, noting the assessment and the report, acknowledged that the Applicant had good prospects of rehabilitation, but stated that the Applicant was ‘clearly’ in need of further offence-specific and related treatment.[22] There is no evidence that the Applicant continued with such targeted treatment, save for undertaking the following courses in prison:[23]

    [20] Ibid 597.

    [21] Ibid 598.

    [22] G4, 40.

    [23] G12, 93.

    (a)Healthy Living course;

    (b)Jobs and Careers course;

    (c)Learning for Life course;

    (d)Positive Psychology Workshop (Thrive Tribe);

    (e)Take Stock B course;

    (f)Peace Education Program;

    (g)Blokes in Balance course (Mindfulness, Meditation, Relaxation etc);

    (h)Life Skills Program;

    (i)Take Stock A course;

    (j)Healthy Lifestyle Choices Program;

    (k)Hard Cuddles course.[24]

    [24] Exhibit A1, [19](d).

29. None of these courses appear specifically directed to the ongoing treatment contemplated by Mr Newton, Mr Hanley and the sentencing Judge. Consistently, in the most recent assessment of the Applicant on 16 January 2023 and first draft report of 20 January 2023 (first draft), Mr MacKinnon states that the Applicant told him that he had never engaged in any subsequent mental health treatment.

30. Further, as at 16 January 2023, the Applicant maintained a view that he and the child victim had been in “an equal relationship” and in Mr MacKinnon’s opinion, the Applicant “still struggles with a significant level of denial, in that he still struggles to fully grasp and admit to himself and others, the abusive nature of his relationship with [the victim]”.[25] Mr MacKinnon was of the opinion that the Applicant continued to “present with a significant and chronic level of immaturity and naivety - despite being 44 years old”.[26] He stated that the Applicant “is now consciously aware of [some vulnerability for developing attraction to young females] and able to make appropriate decisions to avoid becoming closely involved in inappropriate relationships”.[27]

    [25] T1, 10.

    [26] Ibid 11.

    [27] Ibid.

31. However, whilst Mr MacKinnon, in his first draft, was of the opinion that the chances of the Applicant re-offending in a serious manner were low, he was of the opinion that the Applicant still required at least a further two years of regular mental health therapy sessions to enable him to, inter alia, better understand his offending, associated psychosexual issues and that he would benefit from sex offender seminar programs to help raise his insight into his problems.

1. Following Mr MacKinnon having completed his first draft, on 23 January 2023, the Applicant’s solicitors forwarded him copies of text messages between the Applicant and his victim.[28] The Applicant was questioned during the hearing about these and other text messages which occurred on or about Christmas Day 2017. In a follow up email on 25 January 2023 at 3.18pm, Mr MacKinnon was informed of the Applicant’s instructions that he “does not have any memory of the text messages at pp. 410-416 which included the request for photos of the young woman’s 11-year-old cousin (sic). He was only interested in the relationship with the young woman which he believed to be consensual”.[29] Mr MacKinnon provided an updated report at 4.06pm that day (final report).

   [28] Ibid 16-22.

   [29] Ibid 27.

2. Counsel for the Applicant essentially submitted that Mr MacKinnon, in his final report, had misconstrued the text messages and hence less weight should be attributed to the incremental changes which differentiate his final report[30] from the first draft. The changes include observations regarding paedophilic fantasies and impulses within the Applicant, and a recasting of the risk of re-offending from ‘low’ to the ‘low to moderate’ range. Further in the final report, Mr MacKinnon concluded that “the complex nature of [the Applicant’s] psychological problems, and his currently poor level of insight into these problems, suggests that rehabilitative progress will not come easily and he is likely to continue to present with a significant risk of reoffending”.[31]

   [30] Exhibit A2.

   [31] T1, 65.

3. Counsel for the Applicant provided a thorough argument regarding the text messages, highlighting the fact that the victim was drunk at the time and led much of the text exchange regarding her 11 year old god daughter. The Tribunal accepts that the text messages are open to some interpretation regarding the nature of the photos of the god daughter the Applicant was seeking and, on balance, the evidence on this question, including the oral evidence of the Applicant, is equivocal. However, the proposition that the text exchange between the Applicant and the victim was at cross purposes or any associated misinterpretation was not put to Mr MacKinnon, hence the Tribunal does not have evidence in this regard. The Tribunal does accept, as Counsel for the Applicant submitted, that the rigid time constraints associated with this type of review and the fact that this matter had to be prepared on behalf of the Applicant over the Christmas/January holiday period did result in the Applicant’s solicitors operating under challenging circumstances. The Tribunal reduces the weight it appropriates to the incremental changes to Mr MacKinnon’s final report, but that does not undermine the content of his first draft and other expert psychological evidence before the Tribunal.

4. Having considered the evidence before it as discussed above, the Tribunal accepts the Respondent’s submission and finds that the nature of the harm that would be caused if the Applicant were to reoffend is so serious that, even accepting that there is a low risk of reoffending, it is an unacceptable risk to the Australian community. Such a risk assessment is undermined against the Applicant because there is insufficient evidence before the Tribunal to establish that the Applicant now has the requisite insight into his behaviour as highlighted by the various experts. The Tribunal finds that this primary consideration weighs heavily against revocation.

   Whether the conduct engaged in constituted family violence

5. The Applicant submitted that this consideration was not applicable. The Tribunal agrees with this submission and therefore finds this consideration weighs neutrally.

   Best interests of minor children

6. The parties accept this consideration is not applicable to the Applicant. It therefore weighs neutrally.

   Expectations of the Australian community

7. 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, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[32]

   [32] Direction 90, 8.4(1).

8. The Tribunal must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed in paragraph 8.4 of the Direction, without independently assessing the community’s expectations in the particular case.[33]

   [33] Ibid 8.4(4).

9. The Tribunal notes that despite the Applicant being at least a low risk of reoffending, the expectation of the Australian community is to not allow the Applicant to remain in Australia. He has engaged in serious conduct of a sexual nature against a vulnerable member of the community, in breach of the Australian community’s expectation that he would obey laws while in Australia.[34]

   [34] Ibid 8.4(1)-(2).

10. The Tribunal finds that this primary consideration weighs heavily against revocation.

    OTHER CONSIDERATIONS

    Extent of impediments if removed[35]

    [35] Ibid 9.2(1).

11. The Applicant lived in Sri Lanka until the age of 25 and has had a history of employment in Sri Lanka. He is unlikely to experience any substantial language or cultural barriers. The Tribunal accepts he will get limited assistance from his brother in Sri Lanka who is raising a son with disabilities. His life there will have its challenges, and he is concerned that if knowledge of his convictions is spread, this will have a negative impact on his life and employment prospects. Given the Applicant has been issued a pseudonym in both the criminal proceedings and in this matter, there is minimal risk of discovery of the Applicant’s convictions in this regard. Further, while the Applicant submits there are likely similar disclosure requirements in Sri Lanka with respect to criminal convictions, no supporting evidence of that has been put before this Tribunal.

12. At 45-years of age and able bodied, the Applicant is physically capable of pursuing most employment opportunities. The Tribunal considers that the difficulties outlined above are not insurmountable and he will have access to the regular social, medical and economic supports which are generally available to fellow Sri Lankan citizens.[36] On balance, the Tribunal finds this consideration weighs only slightly in favour of revocation.

    Links to the Australian community[37]

    [36] Ibid.

    [37] Ibid 9.4.

13. Save for the offending resulting in his imprisonment, the Applicant has made positive contributions to the Australian community since 2003, has been a good citizen and has taken various self-improvement courses in prison.[38] He has a good employment history and has operated dance businesses in Australia. If he is not permitted to remain in Australia there would be no significant impact on Australian business interests. He has a solid circle of friends in Australia who have given positive character references on his behalf.[39] Mr H and Dr L, who were not aware of the full extent of the background details to the Applicant’s offending, stated that they were prepared to accommodate and support the Applicant upon his release from prison, should he be permitted to remain in Australia. The Tribunal finds that this consideration weighs moderately in favour of revocation.

    [38] Exhibit A6.

    [39] Exhibits A4, A5, A7, A8, A9, A10, A11, A12, A13 and A14.

    Applicant’s mother’s right to remain in Australia

14. Counsel for the Applicant submitted that the Applicant’s mother may lose her right to continue to remain in Australia should the Applicant be deported, but there is no evidence before the Tribunal to support such a submission. In any event, the solicitor for the Respondent informed the Tribunal that the Applicant’s mother would not be precluded from applying for an alternate form of visa should that become necessary. In the circumstances, the Tribunal finds this point neutral apropos of revocation.

15. The parties accept that there is no further information regarding impact on victims and there are no remaining other considerations that are relevant to the application for review. The Tribunal finds accordingly.

    CONCLUSION

16. In weighing up all of the considerations as assessed above, the Tribunal finds that, on balance, the relevant primary considerations weigh against revocation and outweigh any of the other considerations in favour of revocation.

    DECISION

17. It follows that the correct or preferable decision is to affirm the decision under review.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

..........................[sgd]..............................................

Associate

Dated: 17 February 2023

Dates of hearing:	31 January and 1 February 2023
Counsel for the Applicant:	Mr Nicholas Poynder
Solicitors for the Applicant:	Carroll & O'Dea Lawyers
Advocate for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers