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

[2024] AATA 491

MTCQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 491 (5 March 2024)

Division:GENERAL DIVISION

File Number(s):      2023/9374

Re:MTCQ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:5 March 2024

Date of written reasons:        21 March 2024

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

...................[sgnd].....................................................

Senior Member Dr N A Manetta

CATCHWORDS

MIGRATION ‒ mandatory cancellation of visa ­ ‒ whether ‘another’ reason for revocation of cancellation decision  ‒  Direction 99  ‒  conviction of serious offences involving indecent treatment of a child  ‒  applicant mistreating granddaughter  ‒ frequency of offending  ‒  trend of increasing seriousness  ‒ impact of jail and threat of deportation significant  despite lack of moral insight  ‒ applicant elderly with a number of health conditions  ‒  strong ties to Australia  ‒  impediments on removal weigh considerably in applicant’s favour  ‒  decision under review set aside    

LEGISLATION

Migration Act 1958 (Cth)

CASES

Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9

FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION

Senior Member Dr N A Manetta

21 March 2024

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.

   [1] These reasons contain certain standard paragraphs, particularly [6] and [18]. 

2. This is an application by ‘MTCQ’, a person whose name is subject to a confidentiality requirement and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of the decision of the respondent’s delegate dated 12 December 2023. By this decision, the delegate declined to revoke the cancellation of the applicant’s visa which had taken place earlier under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The applicant’s visa was cancelled after he was convicted of serious offences involving the indecent treatment of a child. This led to the applicant being sentenced to a number of concurrent terms of imprisonment, the longest of which was three years and six months. The applicant was required to serve part of these terms on a full-time basis in jail. In these circumstances, his visa was required to be cancelled under the Act.

3. The applicant sought a timely internal review of the mandatory cancellation of his visa. The internal-review delegate tasked with conducting the review had two questions to answer under section 501CA(4)(b) of the Act. The first was whether the applicant passed the so-called ‘character test’ under section 501(6) of the Act. There is no doubt that the applicant could not pass the character test given the lengthy prison sentence to which I have just referred.[2] The delegate’s conclusion in this regard was clearly correct.

   [2] See s 501(6)(a) and 7(c) of the Act.

4. The second question the delegate had to address was whether there was ‘another reason’ for the cancellation decision to be revoked. In addressing this question, the delegate was required to apply Direction no. 99 issued under section 499 of the Act (‘the Direction’).[3] Having weighed and considered the various considerations required to be addressed under the Direction, the delegate concluded that there was not ‘another reason’ for the cancellation decision to be revoked. As a result, neither of the two questions under section 501 was answered in a way that favoured revocation of the applicant’s visa cancellation decision.

   [3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).

   TRIBUNAL’S TASK

5. I must address the same two questions as the delegate. I have already indicated that the first question was correctly answered, and so the second question was the only one of substance before me. Like the delegate, I must apply the Direction in addressing this question.

6. In exercising its review function in these matters, the Tribunal conducts a fresh hearing on the merits, drawing its own conclusions from the evidence before it to reach the correct or preferable decision. It hears evidence and oral submissions and receives written documents and written submissions. The Tribunal may set aside the decision under review despite the absence of any error in the delegate’s reasons if that is judged to be the correct or preferable decision on the evidence before it. Similarly, the Tribunal may affirm the decision under review despite there being an error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.

7. At the hearing before me, the applicant represented himself; Mr Ellison appeared for the respondent.  I acknowledge Mr Ellison’s very fair conduct of the respondent’s case, which well reflected the respondent’s model-litigant obligations. 

   STATEMENT OF CONCLUSION

8. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked.  I now set out my reasons for this conclusion.

   BACKGROUND FACTS

9. The applicant gave the following evidence concerning his background, which I accept.  He is a citizen of the United Kingdom. He was born in Glasgow, Scotland in February 1950 and was, therefore, 74 years of age at the time of the hearing before me. The applicant moved to Australia in mid-1964. At that time, he was 14 years old and he arrived here with his parents and seven siblings. The family settled in Brisbane where the applicant attended school. He left at the end of Year 10 to pursue an apprenticeship as an electrician. He was approximately 21 or 22 years of age when he finished this apprenticeship. The applicant remained in the construction industry for his entire working life until he retired some time before he turned 65.

10. The applicant has never married but was in a relationship with a woman for some 3 years. The pair had two children together – a son and a daughter born in 1980 and 1981, respectively. Unfortunately, the applicant and his partner separated. The applicant applied for custody of their children, which was not contested by his partner. The applicant raised his two children alone.  The applicant stated, and I accept, that he has no relationship with his former partner and has never ‘settled down to another relationship’.

11. The applicant raised his two children on his own, as I have said. The applicant’s son stayed at home until he had to relocate for work, and his daughter lived at home until the serious offending I shall describe in due course.

12. The family home was bought in about 1996 using money the applicant said he had won in a lottery. The applicant described difficult living arrangements in his household, saying he got ‘pushed around’ by his daughter.  The house apparently fell into disrepair.

13. It is convenient at this point to refer to the applicant’s physical impairments. The applicant maintained that he suffers from a significant loss of hearing which he blames partly on an electrical explosion to which he was exposed at work. He claimed also to have poor vision, especially in his right eye because of macular degeneration; permanent nerve damage in his right leg; a crushed vertebra; and a narrowing of the throat which will require further surgery in due course.  He said he also suffers from haemochromatosis, which requires the fortnightly removal of blood.

14. The applicant also gave evidence that he drank heavily. He began drinking socially at the age of 21 and then later in his life -  some 5 or 6 years ago, he said - drinking became a serious habit.

15. I now turn to the applicant’s criminal record, which was before me.[4] The applicant was convicted in 1972 of driving a motor vehicle whilst under the influence of liquor or drugs. The offending is very old now and is not of any particular significance.  Accordingly, I need not consider it further in these reasons and it certainly could not have proved a tipping point in my consideration of the outcome in this case.

    [4] Ex R1, 23-24.

16. On 5 April 2022, the applicant was convicted of six counts[5] of the indecent treatment of a child, his granddaughter, and was sentenced to a number of concurrent terms of imprisonment, the longest of which was three years and six months. The sixth, and most serious count, is a single episode that occurred at some time over a three-year period between 31 December 2017 and 1 January 2021.  The applicant was 67 (nearly 68) to 70 (nearly 71) over this time frame.  The victim was between 8 and 11 years of age at the time of this count.  The victim, the applicant, the victim’s mother, and the victim’s sister were all living together at the time of the offending.  It would appear that the child suffers from severe anxiety and intellectual impairment.[6]

    [5] It would appear a large number of other counts were withdrawn in the event.  Certain evidence was given by the applicant at the hearing before I could issue a warning to him that suggested his involvement in another count.  I decided not to take account of that evidence in fairness to the applicant; but it would not have made any difference to my decision in any event.

    [6] Ex R2, 12.

17. The offending in relation to all counts is described in the sentencing remarks as follows:

    The conduct which constitutes count 1 involved a touching of the girl’s vagina, first, on the outside of her shorts, and then on the inside of her clothes and a touching of her breasts.  Counts 2 to 4, which are founded on your own admissions, involved a touching of the girl’s breasts under her shirt, and grabbing her bum (sic) underneath her dress with your hand.  Count 5 involved touching her breasts after putting your hands under her sports bra, then pulling her shorts and undies to the floor and touching the inside of her vagina, before lifting her bra up and touching her breasts again.

    Count 6 involves the gravest of the conduct. It saw you touching her vagina on the skin, and then taking her shirt off and pulling her bra down to the floor and touching her breast with your hands before putting your mouth on her breasts and licking them, and also putting your mouth on her vagina.  The conduct is extremely serious conduct, which the community rightly abhors and must be denounced.[7]

    REASONS

    [7] Ex R1, 26-27.

    Considerations arising under the Direction

18. I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat below:-

    [30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).

    [31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.

    [32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years.  Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.

    [33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.

19. I turn now to apply the Direction. Paragraph 8.1(1) provides that when I consider the protection of the Australian community, I should bear 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. I should have particular regard to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation that they will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle steadily in mind.

20. I must also give consideration to the two matters that appear in paragraph 8.1 (2); namely, the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.  I turn now to consider the nature and seriousness of the applicant’s conduct. Paragraph 8.1.1(1) sets out in paragraphs (a) to (h) a number of matters that I must bear in mind.

21. It is clear from paragraph (a), that I must regard the applicant’s offending against the granddaughter as extremely serious, as it clearly is.  The abuse of a child, particularly within a family circle where there is a legitimate expectation of nurturing protection and affection,  can have the most serious consequences for the psychological development of a child. The problems may well be irremediable throughout life.  I  note the special vulnerability of the victim due to her anxiety and intellectual impairment.  By paragraph (c), I am not to have regard to sentences to discount the seriousness of the crimes committed by the applicant, but I note lengthy sentences were imposed in any event. There was quite some frequency in the offending: in all, six counts were charged and found proven. The very fact that the offending persisted over six counts marks a trend of increasing seriousness in my opinion. This is not a case where the applicant repented immediately of having given in to unnatural desires on one occasion.  Rather, it is a case where the applicant indulged his desires at the expense of his granddaughter for a considerable period of time and on multiple occasions. There is also a cumulative effect of repeated offending particularly in the case of sexual offending in relation to a child. As I have said, the offending did not consist of an isolated incident but consisted of repeated assaults upon the child over a long period.

22. I now turn to consider risk under paragraph 8.1.2. Subparagraph (1) requires me to bear in mind 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. I am reminded that 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.

23. That principle has particular application, in my opinion, where the welfare of children is concerned.

24. Subparagraph (2) requires me to have regard to two matters cumulatively; namely, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and, secondly, the likelihood of his engaging in that conduct.  The first matter requires me to assume that the conduct recurs. In this regard, the sexual abuse of a child is an offence of the utmost seriousness.  I have already adverted to the potentially lifelong consequences of sexual assaults of this type. 

25. I must also have regard to risk. There are a number of matters to advert to in this regard.  First, I do not believe that the applicant has any genuine insight into the wrongfulness of his misconduct. Part of his evidence to me suggested that his granddaughter’s behaviour to him was precociously sexual and provocative, as if this could be a legitimate explanation for his gratification at her expense. That is, of course, not the case. If I assume, as the applicant suggests, that his young granddaughter did behave in an immodest and provocative way, that should have suggested to the applicant the need to involve the child’s mother. Children are sometimes sexualised at an early age, and we live in a society where, unfortunately, sexually explicit material is frequently made available to children. A child who displays sexual behaviour needs to have that behaviour addressed by a responsible adult (or perhaps professionals). It can never be a mitigating factor that an adult abuses a child when the child is behaving immodestly or provocatively.

26. The applicant spoke at some length about the effect upon him of his offending.  He pointed to the very significant effect the jail term, and the threat of deportation, have had upon him.  I accept that evidence. That effect has been, in my opinion, particularly pronounced because of the applicant’s age. The applicant has experienced remorse in the sense of an appreciation of the harm his conduct has caused to himself given the jail sentence which he received and the opprobrium in which he is now held as a convicted paedophile.  But, in my opinion, he has no genuine remorse, in the sense of insight into the effect of his behaviour upon his granddaughter.

27. I am, however, required to assess risk, not moral insight or remorse as such.  I believe that if the applicant were to return to the community there would be very little risk of his reoffending.  If he returned to the community, he would live with his sister in a relatively remote regional location in Queensland.  That arrangement would be open-ended. He might continue to live with her indefinitely.

28. The applicant’s sister confirmed this arrangement.  She also gave evidence of her plans to move in due course to the Gold Coast.  That would be a more populous setting; but I find it highly unlikely that the applicant would seek to cultivate any child with whom he comes into contact through family connections.  Indeed, it would be difficult to suppose that any family members are presently ignorant, or would remain, ignorant of the applicant’s criminal convictions, given the seriousness of child-sex offending.

1. There is no evidence before me that the applicant has sought out contact with children outside the family circle.  I do not believe there is an evidentiary basis for me to reason that this particular applicant would pose a risk to other children in a public setting or those whom he might happen to meet.  His sister, who gave evidence to the Tribunal and who presented as an intelligent and responsible person, would, I believe, keep a close eye on his behaviour.  She would provide a stabilising influence for him, and her home is orderly.  I accept the applicant’s evidence that he will not resume drinking, and I accept his sister’s evidence that she does not drink.

2. The applicant tendered a report from a psychologist, Ms Sassi.[8]  She was called to give oral evidence.  I must say I found her report unhelpful. There were errors in the application of the standardised testing that is regularly applied to measure risk.  She admitted these in her evidence.

   [8] Ex A5 and Ex A7.

3. Ms Sassi had very limited experience in assessing paedophiles. She did not consult any of the readily available source material before drafting her report; in particular, the sentencing remarks, which described the offending in detail.  I found her evidence in other respects unsatisfactory.  She appeared to think relevant the fact that the granddaughter may have been pubescent rather than prepubescent.  That seems to be contradicted by the facts; but, in any event, it was not clear to me how that factor was relevant.  This is the case of sexual abuse by a family member of a minor who was approximately 11 years of age at the time. It made no difference to the seriousness of the offending, in my opinion, that the victim may have reached puberty at that stage of her life.  I was also concerned by the apparent reluctance of the psychologist to acknowledge plainly in her evidence how serious a deviation from societal norms and acceptable human morality the applicant’s behaviour was.  All in all, I did not find her evidence helpful, although she also saw the applicant’s future risk as low. 

4. I did not find Mr Stoker’s report particularly helpful.[9]  The applicant obtained this report for use at his sentencing hearing. The applicant gave evidence that he was asked to complete a few tests and then had a relatively short discussion with Mr Stoker, who is also a psychologist.

   [9] Ex R2, 22-29.

5. The conclusion is drawn that the applicant’s perverse behaviour is a ‘reflection of suffering paedophilia for a period, together with brain damage, alcohol abuse, severe anxiety and chronic health problems’.[10]  I did not find that there was any evidence of brain damage in the applicant’s evidence to the Tribunal.  I note in particular the apparent non-sequitur of citing the applicant’s ‘superior verbal and normal performance intelligence’ as an indication of ‘his cognitive difficulties including poor decision-making and insight’.[11]  This observation makes little sense on its face. 

   [10] Ibid, 29.

   [11] Ibid, 28.

6. The applicant suggested in his evidence to me that he experienced no withdrawal symptoms when he gave up alcohol in jail, which is noteworthy. Although he may have been abusing alcohol, there is insufficient evidence before me that the applicant was heavily dependent. The applicant’s chronic health problems are not, in my opinion, quite as serious as the applicant maintains they are.  He is not deaf, for example, although he is hard of hearing. He was able to give his evidence freely and understood me clearly when I spoke, although I had to speak with an elevated volume.  Moreover, whilst I am not in a position to question the finding that the applicant was suffering from anxiety, the report does not make clear how anxiety would explain the applicant’s perverse interest in gratifying himself at the expense of his granddaughter on six separate occasions at such a late stage in his life. 

7. Moreover, I do not understand the conclusion that the applicant was suffering paedophilia ‘for a period’. Paedophilia is a most serious psychological or psychiatric disorder, and the reasons for its occurrence require the most careful analysis. The abuse of a child involves highly disordered behaviour, and one that would be resisted at all costs by those who are tempted, at least by those who have had a normal upbringing reinforcing basic norms.  All in all, I did not find Mr Stoker’s report particularly helpful.  

8. Having heard the applicant, it is clear that he lacks any strong moral insight so far as his sexual offending is concerned. That does heighten his risk in my opinion. I believe there is a lack of appreciation by the applicant of the impact of his offending and of his own responsibility for it.  This was brought out in the applicant’s blaming of his victim’s behaviour  as provocative.  

9. In my opinion, however, the impact of jail and the threat of deportation have brought home to this applicant how precarious his situation is in Australia.  I believe this applicant will be very careful, indeed, to ensure that what remains to him of his life is not spent in jail or alone in the United Kingdom.  He could hardly suppose that any further criminal conduct would lead to anything but a longer jail sentence and the certainty of deportation despite his advanced age. 

10. I rate the risk of his reoffending as low because of the applicant’s fear of the consequences for himself and also because he would be living in a stable family situation with no opportunity to engage with children where the responsible parents are unaware of his past conduct.   I note again, however, that I am required to assess the risk of recidivism ‘cumulatively’, that is in conjunction with the nature of the harm.

11. I am required to have regard to family violence committed by the applicant, which includes his sexual offending against his granddaughter: see paragraph 8.2 This is a separate heading under the Direction. I acknowledge the serious concerns the Government has about conferring on applicants who engage in family violence the privilege of remaining in Australia. Those concerns are said to be proportionate to the seriousness of the family violence engaged in by the non-citizen and there is a reference to subparagraph (3).

12. I bear this principle in mind. Turning to subparagraph (3), there has been a frequency in the sexual offending, and persistence in the conduct represents in itself a trend of increasing seriousness in my opinion. I have already referred to the cumulative effect of the applicant’s offending on his granddaughter and I do so again. I believe there has been no effective rehabilitation for the purposes of subparagraph (3)(c). There is no genuine acceptance of responsibility for the conduct and no demonstrated understanding of the impact of the behaviour. There has been some effort to address factors contributing to the conduct in that there has been a cessation of alcohol use, and I do believe alcohol for this applicant has had some disinhibiting effect although it does not explain his conduct fully. There has been also engagement with psychological treatment, but I believe there has been no substantial development of moral insight, as the psychologist in her oral evidence acknowledged.

13. All in all, this consideration counts substantially against the applicant.

14. I turn now to consider the strength, nature and duration of the applicant’s ties to Australia: see paragraph 8.3 I find here that the respondent’s submissions at paragraphs [40]-[46] of its Statement of Facts Issues and Contentions[12] are very fair and balanced and reflect my own view.  As I am in agreement with the respondent’s written submissions, I do not need to set them out.

    [12] Ex R3.

15. I do not believe the best interests of minor children arises in this case.

16. Paragraph 8.5 requires me to consider the expectations of the Australian community.  The applicant has engaged in serious conduct in breach of the expectation that non-citizens should obey Australian laws while in Australia. It follows that ‘as a norm’, albeit not as an inflexible rule, the Australian community expects the Government not to allow the applicant to remain in Australia. Moreover, paragraph 8.5(2) instances behaviour that gives rise to serious character concerns. These include acts of family violence and the commission of serious crimes against children. I note that the expectations in paragraph 8.5 apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community[13] and I am to proceed on the basis of the Government’s views as articulated in paragraph 8.5 without independently assessing the expectations in the particular case at hand.[14]

    [13] See paragraph 8.5(3) of the Direction.

    [14] See paragraph 8.5(4) of the Direction.

17. All in all, this consideration counts substantially against the applicant.

18. I must have regard to so-called other considerations. There is a non-exhaustive list of four such considerations given in section 9.  I do not have information before me concerning the impact of my decision on the victim, the granddaughter, and so I leave that to one side.

19. The applicant is now elderly and has not even visited the United Kingdom since his departure at the age of 14, almost 60 years ago.   That provides a very serious consideration for me to weigh. I accept that the medical system in the United Kingdom should be considered the equivalent of Australia’s and that social welfare payments and supports should be considered equivalent as well. But the applicant is elderly now, as I say, and has a number of health conditions although I do not believe these conditions are as debilitating at the present time as the applicant maintains. Nevertheless, he has no family or other social support in the United Kingdom. He will be required to emigrate there at a late stage in life and to support himself. The respondent very fairly submitted in its Statement of Facts, Issues and Contentions that the impediments-on-removal consideration carries significant weight in the applicant’s favour, and I concur in this view.

    WEIGHING THE CONSIDERATIONS

20. I turn now to weighing the considerations I have identified. It is important in my opinion to bear in mind that the Direction requires decision-makers to consider the specific circumstances of the case when determining whether there is another reason to revoke the cancellation decision. That is made clear in paragraph 5.1(3). The exercise of the decision-making function is expected, therefore, to proceed within the framework of individual circumstances and not as a mechanical exercise of placing considerations to the left or right, so to speak, of a notional ledger.

21. I am, of course, particularly concerned about the harm this applicant’s behaviour has inflicted upon an innocent child. The Direction speaks very strongly indeed against this sort of harm in a number of sections to which I have referred including paragraphs 8.1, 8.2 and 8.5. It could hardly be made clearer that child sex offenders should as a general rule be excluded from the Australian community.

22. But the individual circumstances of the case must be weighed under the Direction. I have assessed the risk the applicant poses to the community as low, and I note again the protective factors that I believe are in place in the proposed living arrangements should the applicant be released into the Australian community. I accept that a low risk is not a zero risk, but I doubt very strongly whether this applicant would ever contemplate re-engaging in his misconduct since he is well aware of the consequences both in terms of jail and deportation. Whilst he is not at the end of his natural life expectancy, it must be said that, all things considered, he is not far from it, since he is now 74 and has indifferent health. He has no family or social links in the United Kingdom, and he would be required to live there with a substantial degree of isolation. His financial circumstances have not been shown to be particularly strong: there is apparently money owed to him from the sale of this property, but it is not clear whether that money will be fully refunded to him by his son, who sold his property on his behalf. All in all, whilst the United Kingdom offers the applicant a similar social welfare system, he would be largely left to cope on his own with his medical conditions and incipient age-related frailty. I accept that the low risk of recidivism I have assessed is to be considered cumulatively with the nature of the harm which a victim and the community would suffer on the assumption the applicant reoffends. I acknowledge that. There are very strong reasons for removing the applicant from Australia.

23. All in all, however, after applying the Direction I have decided on balance that the cancellation of the applicant’s visa should be revoked. I have formed the conclusion that I am satisfied that there is ‘another reason’ for the cancellation decision to be revoked under s 510CA(4)(b)(ii).

    FORMAL DECISION

24. Accordingly, I shall set aside the decision under review and substitute a decision that the

    cancellation of the applicant’s visa be revoked.

    I certify that the preceding fifty-two (52)

    paragraphs are a true copy of the reasons

    for the decision herein of Senior Member

    Dr N A Manetta

    ………[sgnd]……………………..
    Associate

    Dated: 21 March 2024

    Date of hearing:  22, 23 February and 5 March 2024

    Advocate for the Applicant:      Self-Represented

    Advocate for the Respondent:  Tom Ellison

    Australian Government Solicitor