Mulholland and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 3236

Mulholland and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3236 (7 September 2021)

Division:General Division

File Number(s):       2021/4092

Re:Alan Paul Mulholland  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President

Date:7 September 2021

Place:Sydney 

The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.

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

The Hon. Dennis Cowdroy AO QC, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – best interests of minor child – expectations of the Australian community - impediments to removal – impact on victims - strength, nature and duration of ties to Australia –decision affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigrationand Border Protection [2019] FCAFC 202

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Dennis Cowdroy AO QC, Deputy President

7 September 2021

1. The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 15 June 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made on 17 October 2019 under s 501(3A) of the Act to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (“the visa”) (“the original decision”).

2. A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.

3. On 1 November 2019 the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).

4. On 23 June 2021, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 19 August 2021 using the Microsoft Teams platform.

   RELEVANT LAW AND POLICY: DIRECTION NO. 90

5. Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.

6. Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).

7. Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

8. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:

   (4) The Minister may revoke the original decision if:

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

   (b) the Minister is satisfied:

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

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

9. Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

10. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).

11. The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:

    1Australia 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.

    2Non-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.

    3The 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.

    4Australia 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.

    5Decision-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.

12. Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

13. The primary considerations (paragraph 8 of the Direction) are:

    (a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);

    (b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);

    (c)best interests of minor children in Australia (“Primary Consideration C”); and

    (d)expectations of the Australian community (“Primary Consideration D”).

14. The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.

    FACTS

15. The Applicant, who is 44 years of age, was born in the United Kingdom. The Applicant is a citizen of the United Kingdom. He migrated to Australia with his parents and sister in 1986.

    EVIDENCE

    Statements

16. The Tribunal has had regard to the statement of the Applicant dated 22 March 2020, and to a letter written by the Applicant to the Tribunal (undated) concerning the discrepancies in his incoming passenger card dated 23 September 2015. The Tribunal has also had regard to the statements of family members and former employers, as detailed in these reasons.

    Oral evidence

17. The Tribunal heard oral evidence from the Applicant, and RLM (father), DM (sister); DD (colleague and employer); SC (step-sister); and AH (colleague).     

    MEDICAL EVIDENCE

18. The Tribunal has had regard to the report of Sam Borenstein, clinical psychologist dated 23 July 2021

    APPLICANT’S CRIMINAL HISTORY

19. The Applicant has been convicted of various offences from 11 July 1995 to 1 December 2017. The notable offences have been:

Date	Offence	Outcome
24 July 1997	Assault	Reconnaissance for two years
24 July 1997	Sexual intercourse with a chid between 10 and 16 years	Reconnaissance for two years, $1000 fine
2 November 2000	Driving while disqualified from holding a licence	12 months' bond, $1000 fine, and disqualification for two years
7 November 2001	Using uninsured motor vehicle	$300 fine plus costs
7 November 2001	Using unregistered vehicle on road area	$300 fine plus court costs
7 November 2001	Driving while disqualified from holding a licence	Periodic detention - three months commencing 16 November 2001, disqualified for two years
27 February 2002	Bring/introduce small quantity of drugs into detention centre	Community service order – 100 hours
14 November 2003	Resist or hinder police officer in the execution of duty	12 months’ bond, $250 fine
14 November 2003	Common assault	$100 fine
14 November 2003	Using offensive language in/near public/school	$50 fine
14 November 2003	Assaulting in the execution of his duty	12 months’ bond, $250 fine
14 November 2003	Possess prohibited drug	12 months’ bond, $100 fine
17 June 2013	Assault occasioning actual bodily harm	12 months’ bond, $500 fine
14 May 2014	Possess prohibited drug	$400 fine
1 December 2017	Inflict actual bodily harm with intent to have sexual intercourse with victim	Six years’ imprisonment, non-parole period of four years

1. As a consequence of the Applicant’s last offence, namely inflicting actual bodily harm with intent to have sexual intercourse with the victim, the Applicant was convicted on 1 December 2017. The Applicant was sentenced to imprisonment for a period of six years commencing on 13 April 2016 and concluding on 12 April 2022 with a non-parole period of four years commencing on 13 April 2016 and concluding on 12 April 2020. His release was subject to supervision. An appeal against such conviction and sentence was dismissed by the New South Wales Court of Criminal Appeal on 30 October 2019.

   Sentencing observations

2. The Tribunal has before it the sentencing observations in relation to the most recent convictions involving sexual offences, as detailed hereunder. The most serious offending relates to those involving sexual offences namely: the offence of 24 July 1997; the offence of 17 June 2013 and the offence committed on 1 December 2017.

   24 July 1997 conviction – assault and sexual intercourse with a child between 10 and 16 years

3. The Applicant and the victim, who was 15 years of age at the date of the assault, had been in a relationship. The offence occurred on the Applicant’s 18^th birthday, and he was 20 years of age at the date of conviction. The offence involved the Applicant placing his erect penis into the victim’s mouth against her will. The court imposed a two-year reconnaissance and a $1000 fine for such offence.

   17 June 2013 conviction – assault occasioning actual bodily harm

4. The fact sheet records that in March 2013, the Applicant had invited a sex worker to his home for sexual services. Following the sexual act, the Applicant placed his fingers in the sex worker’s anus and vagina. When the victim resisted, the Police Fact Sheet records that the Applicant became enraged, threw the victim from the bed; grabbed her by the hair and punched her in the face causing an injury consisting of a swelling to the facial area. The Fact Sheet records that the Applicant produced a knife and threatened the victim who escaped the premises naked and reported the matter.

5. With respect to the conviction on 17 June 2013, Magistrate McIntyre in the Local Court at Wyong stated:

   As your solicitor quite rightly says in relation to your course of conduct and of course the already very dangerous position that this lady has for whatever reason chosen to take up, nobody deserves to be treated like that and of course you inflicted actual bodily harm upon an innocent person who no doubt was acting in some form or another upon your instructions.

   So to respond in the way that you did is frankly outrageous and of course you are a person who has been before the Courts before in relation to violence and other matters. If it is alcohol that has led you to behave in this way then clearly you must - with the mandate of the Court - continue to address the issues that have led to this serious offending.

   1 December 2017 conviction – infliction of actual bodily harm with intent to have sexual intercourse, section 61K of Crimes Act 1900 (NSW)

6. This conviction was the result of an incident where the victim, a stranger to the Applicant, was attacked while she was walking home, as detailed in the Judge’s remarks hereunder.

7. On 1 December 2017, a sentencing hearing took place at the District Court of New South Wales criminal jurisdiction at Campbelltown presided over by acting Judge Armitage. His Honour stated:

   I have no intention of undue leniency to this offender, and I trust these remarks explain why think that the sentence I propose, which I apprehend falls between that thought appropriate by the Crown and the defence, is within the range and indeed appropriate.

8. His Honour then referred to the two earlier offences involving sexual conduct as follows:

   The offender was born on 19 May 1977 and disturbingly he has an offence of sexual intercourse with a child between the ages of ten and 16 years in 1997 which was the subject of what was then a s558 recognizance for two years. The facts of it are also contained in the Crown bundle, and in short summary, what happened was that in July 1997 the offender and the victim were drinking amongst a group of friends behind the Quakers Hill Community Centre and the victim went for a walk with another male, and the offender approached her and had oral intercourse with her by placing his erect penis in her mouth. He then left her and returned to the group and the complainant followed a short time later. A short time after that, the complainant alleged rape, but the acceptance of the plea to the offence abovementioned by the Crown indicates that that allegation was not pursued and I have put it aside.

   Another offence of significance is an offence of assault occasioning actual bodily harm, the facts of which are also part of exhibit BB, the Crown sentence bundle. This was dealt with in Wyong Local Court in 2013 by a fine of $500 and s9 bond. The facts of it are also part of the exhibit BB the Crown bundle on sentence and disturbingly they indicate that the victim was a prostitute, and that after she allowed the offender to have consensual sexual intercourse with her she stopped him, placing his fingers inside her anus and vagina saying “Don’t do that.” As a result of this, the offender grabbed her by the hair and punched her to the face and produced a knife and threatened her with it.

   The production of the knife and the threat do not appear to be the subject of a separate charge. Nevertheless, this offence, in common with the Quakers Hill offence, if I may so call it, is redolent of a lack of sexual control. That is a feature of the current offence as well.

9. His Honour then referred to the circumstances of the most recent offence involving sexual conduct which was the subject of the sentence as follows:

   On 14 March 2016 [the complainant] was walking home alone from a friend’s house in Randwick. She had been celebrating a new promotion at work. She walked along Alison Road in Randwick heading east. Initially she was on the southern side of the road before crossing the road at or about the intersection with Pitt Street so that she was by then walking east on Alison Road on the northern side of the road. At the intersection of Alison Road and Glenn Street she turned left into Glenn Street and headed north. The time was about 11.50pm. There were few pedestrians in the area and very little vehicle traffic.

   After the complainant had turned left and walked about three or four metres the offender grabbed her from behind. The offender put one arm around her neck and with the other hand grabbed the complainant’s breast forcefully. The complainant immediately began screaming out. The offender then pulled the complainant backwards onto the concrete footpath. The complainant was lying on her back on the concrete footpath. The offender then began to attempt to remove the complainant’s clothing. He grabbed at a black knitted cardigan that the complainant was wearing and pulled at her dress. The offender remained silent throughout the attack. The offender then got up and moved around to the complainant’s feet. At or about that time the complainant was screaming words to the effect of “You’re not going to do this to me.”

   After moving to the complainant’s feet the offender again attempted to remove the complainant’s clothing by pulling at her dress in a downward motion. The offender’s intention was to have sexual intercourse with the complainant. The complainant began to kick and punch out at the offender. The complainant at some point believes she may have punched the offender to the face. The complainant looked to her right and saw a plastic shopping bag and a beer bottle on a grass area adjacent to the footpath. The complainant “army crawled” to the grass area and grabbed the beer bottle. At or about the same time the complainant also picked up a chief’s jacket and chief’s pants belonging to the offender. At that time a car drove along Alison Road and the complainant ran across Glenn Street (while heading slightly north). On the other side of the road the complainant hid between bins, buckets and a car.

   ISSUES FOR DETERMINATION

10. The Tribunal may revoke the original decision if the Tribunal is satisfied that:

    (e)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or

    (f)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).

11. The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. The Applicant acknowledges in his statement dated 22 March 2020 that he does not pass the character test. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.

1. The Tribunal now turns to assess the primary considerations as relevant.

   PRIMARY CONSIDERATIONS

   PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

   
   
   

2. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:

   When considering protection of the Australian community…keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

3. Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.

   Nature and seriousness of the conduct

4. The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The major crimes for which the Applicant was convicted were violent and were sexual crimes committed against women. There is no doubt that such conduct is serious.

5. The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:

   ·The victim of the first sexual assault, while she had a previously had a relationship with the Applicant, did not consent to the sexual act performed on her against her will and the Applicant’s conduct was forced upon her. The victim of the second assault, a prostitute, was a stranger to the Applicant. She was subjected to sexual acts perpetrated upon her without her consent and with the threat of harm from the Applicant’s knife.

   ·The victim of the third assault was a stranger to the Applicant. The Applicant was found to clearly have the intent to sexually assault this victim in a premeditated manner.

   Risk to the Australian community should the Applicant reoffend or engage in other serious conduct

6. The Tribunal has had regard to paragraph 8.1.2 of the Direction, as is discussed below.

   Finding on Primary Consideration A

7. Given the factors discussed above, the Tribunal finds that this consideration weighs heavily in favour of non-revocation of the original decision. The Tribunal notes that the Applicant has been assessed as having a substantial risk of reoffending. Further, the seriousness of the reoffending has increased. Katherine Sahm, the Chief Psychologist of the Department of Communities and Justice provided a letter dated 6 February 2022 (sic – 2020) addressed to the Commissioner (of Corrective Services, NSW). Such letter states:

   Mr Mulholland has been assessed as Well Above Average risk of sexual reoffending, while his LSI-R is in the medium range. He has prior sex offense [sic] in addition to assault and drug related offences. He is described as a persistent poly substance abuser. Mr Mulholland was referred to the Sex Offender Program in 2018. He is noted to categorically deny the sexual offense [sic] saying that it is a mistaken identity that his backpack was stolen, despite DNA matching.

   Based on a review of Mr Mulholland’s file, his risk assessment results and the identified criminogenic risk needs an alternative treatment and intervention pathway is recommended. Given his risk level and categorical denial, Mr Mulholland would not be suitable for sex offender specific treatment for the custody-based Deniers Program. His areas of treatment need and intervention are associated with general self-regulation and substance abuse, which can be addressed through other additional programs.

   …

   It is noted that Mr Mulholland is currently participating in EQIPS (EQ) Addiction program and scheduled to commence EQ Foundation. Participation in these programs represents approximately 80 hours (20 x 2hr sessions for each component) of treatment dosage. While the recommended dosage identified as an appropriate intervention level for a high risk sex offender in custody is approximately 200 – 300 hours, these programs will addressed (sic) some of the identified criminogenic risk needs identified for Mr Holland. There is little more that Mr Mulholland would be found suitable for with regard to program completion in custody.

8. There is a note in the records of Corrective Services that states the Applicant had declined to be referred to the Deniers program on 26 March 2018. Subsequently he consented to be referred on 9 December 2019. However, by the time he provided consent to be a participant, the course had already commenced and it was too late for him to be a participant.

9. Other records demonstrate that the Applicant had completed 80 hours a recommended 200 – 300 hours of the treatment program, and that in the sentencing remarks of 1 December 2017, his risk of sexual reoffending was assessed as moderate to high risk.

10. The Tribunal notes the report of the clinical psychologist Mr Sam Borenstein. Such report concludes:

    He is highly regarded in his profession. Mr Mulholland remains committed to abstain from alcohol and drugs, and in turn the likelihood of him coming to the attention of the police and the courts again will, in my opinion, be minimal.

11. This report was written following a single interview and assessment by Audio Visual Link (AVL) on 20 July 2021. The author is apparently unaware of the fact that the Applicant has not engaged in any meaningful course for rehabilitation and that he has been assessed by the Corrective Services as a  medium risk of reoffending, with a ‘well above average’ risk of sexual reoffending. Further, the author does not appear to have considered the records of Corrective Services which would have provided information that the Applicant has attended 80 hours of a recommended 200 to 300 hours to satisfactorily complete the course, nor has Mr Borenstein had regard to the opinion of the Chief Psychologist of the Department of Communities and Justice. For these reasons, the Tribunal provides little weight to the assessment of the clinical psychologist.

12. Whilst the Applicant pleaded guilty to the first and second sexual offences, the Applicant has persistently denied guilt for the third and most serious offence. The Applicant does not accept responsibility for his conduct, nor does he understand the impact of it.

13. In the Applicant’s statement dated 22 March 2020, the Applicant asserts that his conviction was a “miscarriage of justice and is not the first and won’t be the last”. He states however that “[m]y contrition started the very first day of my incarceration. Remorse is a constant companion of mine…”

14. However, expressions of contrition are inconsistent with the fact that the Applicant pleaded not guilty to the most serious charge; upon his conviction he then appealed to the New South Wales Court of Criminal Appeal and, as is evident from his statement, he does not believe that he is guilty of the offence. He did not give evidence at his trial. He informed the clinical psychologist, Mr Borenstein, that he was not guilty of the offence and informed this Tribunal at the hearing that he was not guilty. His rehabilitative efforts to address that behaviour appear to be minimal.

15. During his oral evidence, the Applicant persistently denied that he was a sexual predator. He considers that the conviction in 1997 arose out of “a mistake”. He blames the victim for reporting him when they had apparently enjoyed sexual conduct together before they terminated their relationship. He stresses that he had just turned 18 years of age at the date of the offence.

16. In respect of the 2013 offence, the Applicant denied that his conduct is that of a sexual predator. In his oral evidence to this Tribunal, the Applicant disputed that he ever used a knife during the assault.

17. Even if the 1997 sexual offence could not be regarded as a serious offence because of the previous relationship, a conviction was recorded. The penalty imposed, however, indicates that the court did not regard it in the very serious category, no doubt because of the relationship between the Applicant and the victim.

18. With regard to the 2013 offence, because an act was done by force and it involved a sexual act, it was more serious. But even if the Tribunal were to adopt the Applicant’s asserted position  that these offences should be considered in their context and the surrounding ‘mitigating’ circumstances as he has explained them, nothing could justify the vicious, premeditated assault upon the victim which occurred in the most recent offence committed on 1 December 2017. The level of seriousness is clearly increasing.

19. Whilst the Applicant maintains he was innocent of the latest offence, this Tribunal “cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends”: see McKerracher J in HZCP v Minister for Immigrationand Border Protection [2019] FCAFC 202 at [63]. The rationale for such principle was described at [150] in that decision by Derrington J as follows:

    In all of these cases, of course the conviction (or any fact found on sentence) is extremely powerful evidence of the facts underlying it. That evidence should not be “set at nought”. The criminal court has all the Crown witnesses and submissions and (necessarily) makes its decision closer to the time of the events. Individuals may have motives to later provide a different, untrue account to the Tribunal. The tribunal should exercise extreme caution before considering itself better placed than the criminal courts to consider aspects of crime or the criminal law…

20. The Applicant has also blamed drugs and alcohol for his offending. There is evidence to show that the Applicant attended Alcoholics Anonymous for his alcohol problem and also counselling for his drug problem in 2013 following his conviction. However, he has relapsed. Acting Judge Armitage noted in his sentencing on 1 December 2017 that the applicant had an “intense alcohol problem which apparently existed at the time of his offending”. The Applicant denies any continued use of drugs since he has been in prison. There is some evidence to suggest, in the records of Corrective Services, that drugs have been found in his cell. The Applicant disputes that he had consumed any of such drugs and the Tribunal makes no finding adverse to the Applicant on this question. It appears that the offenders were the other occupants of his prison cell. Irrespective, there is no evidence which indicates that his offending was caused by drugs or alcohol, although the Tribunal notes the claim made by the Applicant that he had consumed some beer on the night of the 2017 offence, though he asserts he did not commit the offence.

21. The Tribunal finds that there is real risk of re-offending. This consideration weighs heavily against the Applicant.

    PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

22. Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

23. Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".

24. This primary consideration is relevant in circumstances where (paragraph 8.2(2)):

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).

25. Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

    a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));

    b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));

    c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):

    (i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));

    (ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));

    (iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and

    d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).

26. The conduct of the Applicant has not involved acts of family violence. His first sexual conviction related to a girl with whom he had a previous relationship, but she would not qualify as a family member. This consideration is not relevant in this matter.

    PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

27. Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).

28. Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

29. Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

    a)the nature and duration of the relationship between the child and non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

    b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

    c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

    d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));

    e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

    f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

    g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

    h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct (sub-paragraph 8.3(4)(h)).

30. The Applicant has no children. However, he has three nephews namely JT born 17 June 2002; LT born 8 May 2005; and FT born 4 October 2011. The younger two of these children reside with their parents in rural New South Wales. The eldest child’s interests have not been considered in the application of this paragraph, as he is not a minor.

31. The evidence establishes that the Applicant has met such children at family gatherings infrequently. The Applicant stated that in the past five years contact has been difficult “due to COVID”. The Applicant saw his nephews on two occasions whilst he was in jail.

32. There is no evidence of any established close relationship in the sense of a parental relationship with any of his nephews. The Applicant’s sister asserted, in her oral evidence, that the Applicant spoke to his nephews by telephone on a weekly basis. This however does not seem to accord with the Applicant’s recollection. If the Applicant were returned to England, he could continue having contact by telephone with his nephews.

    Finding on Primary Consideration C

33. The Tribunal considers that the best interests of the two younger nephews weighs only slightly in favour of the revocation of the original decision.

    PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

34. Paragraph 8.4(1) of the Direction provides that:

    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 not to allow such a non- citizen to enter or remain in Australia.

35. Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be 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 or elsewhere, of the following kind:

    (a)   acts of family violence; or

    (b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

    (d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)    worker exploitation.

36. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

37. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

1. This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.

2. It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

   Finding on Primary Consideration D

3. In this case, the Tribunal accepts that the Australian community’s expectations would prima facie weigh against the Applicant. As already referred to, the Applicant has been found to be a repeat sexual offender. The offences were committed against women. The last offence involved an act of premeditated violence against a stranger and indicates a substantial increase in the seriousness of the offending. His conduct, by definition in paragraph 8.4(2)(c), raises serious character concerns. The Applicant steadfastly refuses to acknowledge that he has been a sexual offender.

4. The other matters with which the Applicant has been convicted demonstrate that he has paid little regard to the requirements of the law. Whilst the offences of driving whilst disqualified on two occasions and of resisting a police officer in the execution of their duty occurred many years ago, they display a disregard for the requirements of the law.

5. The Tribunal considers that this consideration weighs strongly against the revocation of the original decision.

   OTHER CONSIDERATIONS

6. The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.

   International non-refoulement obligations

7. This consideration is not relevant in this matter.

   Extent of impediments to the applicant if removed from Australia

8. Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the non-­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the non-citizen's age and health;

   (b)whether there are substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to them in that country.

9. The Applicant has resided in Australia since he was nine years of age. However, whilst a period of readjustment would be required if he were returned to the United Kingdom, he has three cousins residing in England.

10. The Applicant states that he hardly knows his father’s family who reside in United Kingdom and that he only has bad memories of United Kingdom since his mother and uncle passed away there. He stated he will be homeless with no support network, and would not be financially able to support himself.

11. In response, it should be noted:

    ·the Applicant is 44 years of age and there is no evidence to suggest that he is in ill health;

    ·he is unlikely to face any cultural or linguistic barriers in United Kingdom;

    ·he has transferable skills. The Applicant has worked in the hospitality industry as a chef and has completed courses in warehousing and construction. As such, his experience and qualifications will enable him to find gainful employment;

    ·the Applicant would have access to the same social, medical and other economic services in the United Kingdom;

    ·the Applicant has relatives in the United Kingdom and has visited United Kingdom as recently as September 2015.

12. The Tribunal notes that the Department of Home Affairs Movement History of the Applicant records that the Applicant has departed from Australia on five occasions since his arrival in June 1986. The majority of such travel has been to the United Kingdom.

13. The Tribunal finds that this consideration weighs minimally in the Applicant’s favour, recognising that any removal to a different country may impart difficulties on the removed.

    Impact on victims

14. Paragraph 9.3(1) of the Direction provides:

    Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

15. This consideration is significant. With respect to the last sexual offence committed by the Applicant, the evidence establishes that the victim has suffered significant psychological trauma. The victim suffered lacerations and bruising, scratches and abrasions. The victim impact statement, which was not challenged by the Applicant, was summarised by Acting Judge Armitage as follows:

    She suffers grinding of her teeth during her sleep. For some time after the attack she could not handle anyone being behind her. For the first two weeks after the offence she lived with her brother at [a Sydney suburb] and barely left the house other than by going to the police station. She returned to her flat which she loved but only stayed two weeks and then handed in her notice due to not feeling safe in her own home. She was terrified being alone and could not expect her housemate to be there all the time. She got taxis to and from work to ensure that she did not have to walk anywhere.

    She spent another month at her family’s home in [a Sydney suburb] before returning to Scotland for a month as she did not feel settled in Sydney anymore. However she returned from Scotland and decided to live in a new area far from Randwick. For almost a year she suffered from mild panic attacks. She then spent over a year trying to forget about what happened on the night in question, but since the trial she has had to relive every second of it. She has sought some counselling from [a counsellor] to help her cope better with what has happened to her. No report from the counsellor has been obtained.

16. The Tribunal finds that this consideration weighs strongly against revocation of the original decision to cancel the Applicant’s visa.

    Links to the Australian community

17. The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).

    Strength, nature and duration of ties to Australia

18. Under paragraph 9.4.1 of the Direction:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i)less weight should be given where the non-citizen began  offending soon after arriving in Australia; and

    ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

    How long the Applicant has resided in Australia

19. The Applicant provided a detailed statement which establishes that he has resided in Australia for 35 years. He arrived in Australia on 4 June 1986. His first offence was on 11 July 1995, namely offensive language (then aged 18 years); the next offence was 24 July 1997 being the first sexual offence. Thereafter four driving offences were committed on 9 December 1999. On 2 November 2000 he was convicted of three driving offences and driving while disqualified from holding a licence. His disqualification from holding a licence was extended for a further two years. On 7 November 2001 he was convicted of for driving offences and disqualified for driving to two years (the offence being committed whilst he was still disqualified from the previous offence committed on 9 December 1999).

20. Thereafter other offences were committed as detailed previously in this is reasons.

21. The Respondent has stated that the Applicant has misled the Respondent by stating in his incoming passenger cards that he had no criminal convictions. The Applicant, in his response stated that in respect of the incoming passenger card dated 23 September 2015, he did not mark the correct box as:

    … I believed that the card was asking me to declare criminal convictions in the country that I had departed from. I was assuming that I was declaring for the United Kingdom and believe that Australia would not want me to declare information pertaining to Australia. This appears to be an error on my part in not understanding the question on the incoming passenger card, and not a disregard for Australian laws. I apologize [sic] for any error on my part for failure to understand the question at the tome [sic-time] of completing the incoming passenger card. I did not at any time set out to provide miss-information [sic] or false information at any time, and I can assure the decision-maker that as I now understand that question, I will not be repeating the error, as I have no reason not to answer the question openly and honestly.”

22. The Tribunal notes that the misinformation was provided not only on 23 September 2015, but also on five occasions. The question is not limited to convictions in any specific country: it states “Do you have any criminal convictions?” The Applicant responded: “No”. The Tribunal finds it difficult to accept that the question was not understood.

23. The Applicant’s early offending was attributed by him to naïveté. He expressed some contrition following the first and second sexual offences. The Applicant expressed contrition and remorse for the conviction on 17 June 2013 and that he stated to his counsel that he never wished to return to court. His Counsel stated that the Applicant had “let himself down, he’s let the community down and he’s let the victim down”. However, the subsequent record shows that such contrition must be regarded as having little weight in view of the later 2017 offence. These offences leave the Tribunal to believe, as was considered in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [44] – [45] that the history “further confirms the seriousness of his offending and potential risk to the community”.

24. The Applicant stated he contributed to the Australian community through his work, offering work to others, and by paying tax. No other contribution is apparent to the Australian community.

    Family ties and social links

25. The Applicant claims to have strong ties to several immediate and extended family members in Australia. They are as follows:

    ·RLM (his father, who provided both oral and written evidence). RLM’s statement (dated 13 February 2020) speaks of the Applicant’s troubled childhood; the drugs and alcohol have taken “its toll and shone a totally different light on Alan…”.He states that the Applicant is remorseful and is aware of his poor decisions and behaviour. The Applicant and his father would see one another regularly in the period around 2010. The Applicant then moved away from his father and contact thereafter was more difficult. They would see each other three or four times a year at family functions and the occasional visit. RLM told the Tribunal that he came to Australia for a better life for his children. He was aware of his son’s offending, but did not believe his son committed the offence which has led to his imprisonment. RLM did not condone the other offences although he indicated that there were extenuating circumstances for each offence. RLM claimed that his son was “a changed person”.

    ·DM (his sister who provided oral and written evidence), (statement dated 20 February 2020). DM asked that consideration be given to the deleterious effects of him being removed to another country; that the Applicant had a troubled life following the failure of his parents’ marriage in 1987/88; that the Applicant had an unstable childhood moving between parent houses; that there was a loss of their grandparents in 2008 and 2010; that the Applicant’s mother died at a relatively young age unexpectedly in 2013 and the Applicant found it difficult to cope. This witness spoke of the Applicant’s conviction in 1997, and stated that it came of a relationship which the Applicant had with a former girlfriend and stated “the case was thrown out of court due to her lies and promiscuous ways”. She stated the last occasion when the Applicant met with the family for Christmas was in 2014.

    ·AH (his colleague who provided oral and written evidence) (statement undated): this witness referred to the Applicant’s loyalty as a friend; to his very good work ethic; that he was a hard worker and qualified as a chef; that his convictions are astounding “as this is 100% outside Alan’s good character and caring nature”. This witness visited the Applicant once a month during his incarceration at St Heliers Correctional Centre in Muswellbrook and they communicate payphone usually fortnightly. He considered that the Applicant should not have been charged with the last offence; he stated that the Applicant was not a heavy drinker and use recreational drugs only.

    ·DD (his colleague who provided oral and written evidence) (statement undated). DD speaks of the Applicant’s talent as a chef and proprietor of a restaurant in regional New South Wales where he will offer a work position for the Applicant as a lead chef. DD last saw the Applicant in St Heliers Correctional Centre about 18 months ago. He described the Applicant as an exemplary worker. He has known the Applicant for approximately 16 years and speaks to him approximately 2 to 3 times per week. DD says that he has a zero tolerance for drugs and alcohol and would not permit the Applicant to resort to such substances if he were employed by him.

    ·SC (his stepsister who provided oral and written evidence) (statement dated 28 January 2020). SC considered that the Applicant was innocent of the last offence; she stated that her father (the Applicant’s stepfather) treated the Applicant very poorly; that the Applicant had resorted to drugs and alcohol because of his unhappy circumstances; that she speaks to the Applicant once every couple of months. She last saw the Applicant in 2014.

    ·PC (stepsister) and JC (stepfather), who did not provide written statements testifying as to the good character of the Applicant.

26. The Applicant was extensively cross-examined. He has visited England on several occasions in recent years and has worked in Spain as a chef. He stated he enjoyed having conversations with his nephews. He states that in his 20s, he would consume speed, ecstasy, ice and cocaine and consume alcohol. He stated that he is now a “different person” and that he is committed to not reoffending.

27. The Tribunal notes at the Applicant has provided a Statement of Attainment at TAFE dated 24 March 2018; a statement of National WHS General Construction Induction Training dated 24 February 2020; a Certificate of Completion of Equips Foundation for attending a course; other certificates relating to addiction programs and a certificate of proficiency issued on 25 March 2019 by the Commissioner for Vocational Training certifying that the Applicant has completed a term of traineeship in the vocation of construction.

28. The Tribunal also notes the seven references provided by numerous former employers. . All such references attest to the sound work performed by the Applicant.

29. The Tribunal notes that the Applicant arrived in Australia at the age of nine, and has spent most of the years following residing in Australia.

30. However, the Tribunal also notes that the Applicant has made no discernible positive contributions to the Australian community other than those related to his work as a chef and paying tax, and that the Applicant has an extended history of offending in Australia, beginning from a relatively young age with a demonstrated disregard for the law, albeit with some periods of non-offending. As such, as per paragraph 9.4.1(2) of the Direction, weight given to this part of the consideration is lessened.

31. The Tribunal has taken the above factors into consideration. The Tribunal considers the strength, nature and duration of the ties of the Applicant to Australia are such as to weigh in favour of the revocation of the original decision.

    Impact on Australian business interests

32. This consideration is not relevant in this matter.

    Finding on Links to the Australian community

33. The Tribunal has taken these factors into consideration. The Tribunal finds that, overall, this consideration weighs moderately in favour of the revocation of the original decision.

    CONCLUSION

34. In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that the considerations which weigh in favour of revocation of the decision to cancel the Applicant’s visa are notably outweighed by Primary Considerations A and D, and the other consideration of impact on victims.

35. The Tribunal is not satisfied that there is another reason why the original decision to cancel the Applicant’s visa should be revoked.

    DECISION

36. The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.

    
    

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy, AO QC

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

Associate

Dated:  7 September 2021

Date(s) of hearing:	19 August 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms G. Ho, Clayton Utz