Musumeci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2885

Musumeci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2885 (2 September 2022)
Division:GENERAL DIVISION
File Number: 2022/4894
Re:Vincenzo Musumeci
APPLICANT

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

Decision
Tribunal:Deputy President J Sosso
Date:2 September 2022
Place:Brisbane

The decision under review is set aside and, in substitution, the Tribunal decides that the cancellation of the Applicant’s Class BW Subclass 857 Regional Sponsored Migration visa is revoked.
..............[SGD]...................
Deputy President J Sosso
Catchwords
MIGRATION — cancellation of visa — where Applicant does not pass the character test — carnal knowledge of a child — family violence — whether the discretion in section 501(1) should be exercised — consideration of Ministerial Direction No. 90 — decision under review set aside and substituted
Legislation
Criminal Code (Qld)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Cases
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1252
Secondary Materials
Ministerial Direction No. 79 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION
Deputy President J Sosso
2 September 2022
INTRODUCTION

Mr Vincenzo Musumeci (the Applicant) is an Italian citizen and was born in Sicily in December 1974 – Exhibit 5 G2 p. 4. He first visited Australia in May 1998 on holidays to visit relatives in Mareeba and stayed for eight months. He moved back and forth between Australia and Italy between 1999 and 2003. He eventually moved to Australia in March 2003 – Exhibit 5 G5 p. 42, G20 pp. 208 – 209. The Applicant was the holder of a Class BW Subclass 857 Regional Sponsored Migration visa, which was granted to him on 2 July 2010 – Exhibit 1 p. 2 para 3, Exhibit 5 G3 p. 12.
On 23 June 2008, the Applicant was sentenced in the Mareeba Magistrates Court for the crime of carnal knowledge of a girl under 16. He was ordered to perform 240 hours of community service, and no conviction was recorded against him – Exhibit 5 G4 p. 37.
On 26 June 2020, the Applicant was issued by the Department of Home Affairs (the Department) with a Notice of Intention to Consider Cancellation (the Notice) of his visa – Exhibit 5 G7 p. 56, Exhibit 5 G10 p. 99.
On 10 June 2022, a Delegate of the Minister administering the Migration Act 1958 (Cth) (the Act) determined to exercise their discretion under s 501(2) of the Act to cancel the Applicant’s visa – Exhibit 5 G3 pp. 12 – 36. A detailed statement of reasons was provided – Exhibit 5 G3 pp. 18 – 36.
On 13 June 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Delegate’s decision – Exhibit 5 G2 pp. 3 – 8.
Subsection 501(2) of the Act provides that the Minister (or the Minister’s Delegate) may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The particular ground that the Delegate suspected that the Applicant failed to pass the character test and, subsequently, failed to satisfy the Delegate that he, in fact, passed the character test, was s 501(6)(e), namely:
“(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found the charge against the person proved for such an offence, even if the person was discharged without a conviction…”
BACKGROUND
As noted above, the Applicant was born in Sicily in 1974. The Applicant’s father (born 1941) and mother (born 1946), as well as a brother and sister, still reside in Italy, as do one uncle and aunt and a number of cousins and second cousins. The Applicant remains close to his family and extended family in Sicily – Exhibit 5 G8 p. 71, Transcript (Tr.) 8.8.2022 pp. 8 – 9.
It would appear that the Applicant’s parents lived in Australia for approximately seven years, having become permanent residents of Australia on 21 March 1968. However, they permanently left Australia for Italy on 24 May 1973. The Applicant is the middle child, having an older brother who was born in Australia in 1972 and a younger sister who was born in Italy – Exhibit 5 G8 pp. 64, 71, G12 p. 120.
In his s 501 Personal Circumstances Form, the Applicant stated that he had three uncles/aunts and 13 cousins residing in Australia. The Applicant’s mother has three siblings in Australia: two brothers living in Mareeba and a sister living in Melbourne – Exhibit 5 G8 p. 71, G12 p. 120
The Applicant completed the equivalent of Year 12 schooling in Sicily, and then worked on his grandfather’s fruit farm, as well as his father’s cabinet-making business – Exhibit 5 G5 p. 42. Following his father’s retirement, the Applicant’s brother took over the cabinet-making business, and still operates it – Tr. 8.8.2022 p. 10.
At the age of 18, the Applicant completed 12 months compulsory service in the Italian Army – Exhibit 5 G5 p. 42, Tr. 8.8.2022 p. 9.
As noted above, when the Applicant was 23, he travelled to Australia for the first time, visiting his two maternal uncles in Mareeba. He worked on Uncle Antonino’s tobacco farm for approximately six months before returning to Sicily – Exhibit 5 G5 p. 42, G12 p. 120.
The Applicant missed the Australian lifestyle and returned to Mareeba, again, working with his Uncle Antonino – Exhibit 5 G12 p. 120.
While working for his uncle in Mareeba, the Applicant met his first wife, whom he married in 2003. Due to irreconcilable differences, the marriage collapsed within a period of twelve months – Exhibit 5 G5 p. 42, G12 pp. 120 – 121.
Since approximately 2007, the Applicant has worked at, and eventually became the manager, on the Ravanello family “Gunnado Farm” – Exhibit 5 G8 p. 73, G11 p. 104.
The Applicant met the mother of the child complainant while both were working at Gunnado Farm and, at some time thereafter, the mother asked the Applicant if he would like to move into her home with her and her two children. The mother was divorced, and her ex-husband resided at another location – Tr. 8.8.2022 p. 16. The following exchange occurred on the first day of the Hearing – TR. 8.8.2022 p. 15:
“I understand that you’d known the family for about five years at the time that you committed that offence?---Yes.
You were staying with the family at that time?---Yes.
How did you come to live at that house?---Because the mother asked me to. I was really, really good friends with the mother and with the daughter. The daughter, she was talking more with me than the mother.
So when the offence was committed how long had you been staying at the house for?---I don’t remember. It was a long time ago.
How many bedrooms did the house have?---Three…
You were staying in the same bedroom as the victim?---Yes.
…
DEPUTY PRESIDENT: Sorry, Mr Musumeci, were there two single beds in that room?---Yes.
…
She had her own bed and you had your own bed?---Yes, yes.”
During the Hearing, I asked the Applicant why he shared the same bedroom as the child complainant and the following exchange occurred – Tr. 8.8.2022 p. 18:
“…Why were you in the bedroom with the daughter, not the bedroom with the son? ---Because the mother ask me to look after her and to try to talk to her because she was talking to me all the time, telling me everything.”
It would appear that the Applicant was very close to the child complainant’s family, and used to go out together watching football and soccer games. The Applicant stated that he treated the child complainant like his little sister, and the child complainant had developed a “crush” on him – Tr. 8.8.2022 p. 16, Exhibit 5 G5 p. 42.
From the evidence, it would appear that the Applicant’s relationship with the mother was purely platonic, and that although the child complainant was only 13, her mother had permitted her to consume alcohol – Exhibit 5 G5 p. 42.
The Tribunal has been presented with a redacted statement given by the then de facto partner of the mother. The gentleman, at that time, had been living with the mother at her home for approximately eight months. The gentleman stated that the Applicant used to refer to the mother as “Mum”. He also stated that the Applicant and the complainant child “always got along really well and always wanted to do things together. If Enzo didn’t want to go to any of her soccer games [she] would get upset because she wanted him to go… Enzo would try and act like the father figure.” Further, the gentleman knew that the Applicant was sleeping in the same bedroom as the child complainant and “[a]lthough I didn’t feel comfortable with it I didn’t say anything because I didn’t want to cause conflict” – Exhibit 5 G6 p. 52.
On the night of the offence, the Applicant had gone to a pub where he consumed two or three beers. On his return to the home, the Applicant had another beer with the mother and then he went to bed – Tr. 8.8.2022 p. 17.
The child complainant also left the home that night and consumed alcohol with her friends. The Applicant testified that the child complainant would drink most weekends with her friends and that she would “sneak out” – Tr. 8.8.2022 p. 17.
According to the Applicant, some time after he went to bed, the child complainant came home, undressed and “jumped on top” of him. Sexual relations then occurred, with the Applicant placing his penis into the child complainant’s vagina for a very short time; most probably less than a few minutes – Tr. 8.8.2022 p. 18. The Applicant then removed his penis, got out of the bed, went into another room and slept on the couch overnight. The child complainant did not follow him, and no further interactions occurred – Tr. 8.8.2022 p. 19.
When the child complainant was interviewed by Police on 17 October 2017, she provided the following version of what occurred that night – Exhibit 5 G6 p. 55:
“…The complainant child disclosed that she and the defendant were lying together on her bed in her bedroom when she ‘pushed herself onto him’ and was kissing the defendant before she got on top of him. The child disclosed that they started having sex while she was sitting on top of him and the defendant placed his penis in her vagina. The act lasted less than two minutes when the defendant pushed the child off him and stated ‘Stop, this isn’t right.’ before leaving the room.
The complainant child disclosed that on this occasion she had been drinking Vodka Cruisers…”
Ms Tattersall, on behalf of the Minister, asked the Applicant the following questions – Tr. 8.8.2022 p. 19:
“MS TATTERSALL: You either slept on the couch or went back into the bedroom that night. The next day you went to work?---Yes.
Then you continued to live at the house after that?---Yes.
You continued to live in the same bedroom?---Yes.
Did you ever talk about it?---No but I was really ashamed for what happened, you know.
So you never had a conversation with her about what had happened?---No and I don’t want to – me and her, I don’t want to talk about it.
What about your relationship with her after that time?---It was okay like before but I told her it was – I told her once it was wrong, what happened, what we did.
So you did have a conversation about it?---Just once, yes.
When was that?---After a few days.
After a few days you have a conversation so what happened---I told her that it was wrong what we did and I wanted to – I didn’t want it to happen again because it’s wrong.”
In September 2007, Police from the Mareeba Child Protection and Investigation Unit (CPIU) received information from the Mareeba State High School Police Liaison Officer in regards to a 14 year old child having a sexual relationship with a 33 year old male. It would appear that the witnesses were friends of the child complainant, and over the past 12 months, she had disclosed to them that she had sex with the Applicant, that she and the Applicant loved each other, and that when she turned 16, they were going to announce their engagement – Exhibit 5 G6 p. 51.
The child complainant was interviewed on 10 October 2007 by officers of the CPIU. Initially, the child complainant denied she had a sexual relationship with the Applicant and stated that they were just good friends. However, after the formal interview was concluded, the child complainant made disclosures with respect to having sexual intercourse with the Applicant.
The Applicant was also interviewed by the Police and he was subsequently arrested.
The Applicant pleaded guilty and was sentenced by Magistrate Braes on 23 June 2008 at the Mareeba Magistrates Court.
The sentencing remarks of Magistrate Braes are as follows – Exhibit 5 G5 p. 49:
“…As a 33 year old, mature man, you shouldn’t be having sex with a 14 year old girl. You run today the very real risk of having a period of imprisonment imposed upon you and, of course, the recording of a criminal conviction. I take into account your plea of guilty and the submissions which have been put forward on your behalf. The circumstances of this case are such that I am prepared not to impose a custodial sentence. In your favour, you have, as I said, pleaded guilty at what, in effect, is the very first opportunity to the particular charge. You have no criminal history. You were not, it would appear, the aggressor. And you desisted of your own volition. Perhaps if there had been no alcohol involved or if you had not been affected to whatever degree it was by alcohol, you may have had the good sense to avoid the situation altogether.”
The Applicant was ordered to perform 240 hours of unpaid community service, which he complied with “promptly” – Exhibit 5 G10 p. 101.
The Applicant married Ms Graziella Barone on 25 August 2012 in Sicily – Exhibit 5 G13 p. 141.
They had known each other for many years, having both grown up in the same town in Sicily and had similar friendship groups. In 2008, the Applicant and Ms Barone interacted via Facebook and she travelled to Australia in October 2009, staying for two to three months. At this point, a relationship developed between the couple – Tr. 8.8.2022 pp. 29 – 30, Exhibit 5 G12 p. 123.
The Applicant and Ms Barone have two daughters: the first born in 2011 and the second born in 2014 – Exhibit 5 G13 pp. 143 – 144.
The couple built a home, raised their two daughters, and travelled to Italy on a yearly basis. Nonetheless, the relationship was troublesome and, in 2015, his then wife decided to remain in Italy for approximately five months – Exhibit 5 G12 p.123.
The following account of what followed comes from the report of Dr Hatzipetrou of 21 October 2020 – Exhibit 5 G12 p. 123:
“During this period of time, he received contact from friends suggesting his wife was ‘spending time with other men’. Mr Musumeci acknowledged he was envious and noted he became increasingly suspicious when his wife asked to stay for another two months. After seven months, Mr Musumeci’s wife and children returned to Mareeba and he met them at the airport. Mr Musumeci recalled observing changes in his wife’s demeanour and claimed she ‘didn’t hug [him]’. To this end, Mr Musumeci acknowledged his suspicions had rapidly escalated to a sense of jealousy. Nonetheless, they maintained their relationship for another eighteen months, yet he recalled his wife was often angry at him ‘due to (his) jealousy’. Mr Musumeci recalled his wife had placed a Domestic Violence Order on him. Mr Musumeci was later informed that his partner made this threat to escalate the separation…”
Ms Barone, in a Statutory Declaration deposed on 11 November 2020, gave the following account of the events leading up to her application for a Protection Order – Exhibit 5 G16 p. 165:
“10.In January 2015 I developed health problems and was hospitalized in Mareeba. When I was discharged I decided to go to Italy with the children to recover with the help of my parents. Enzo stayed behind. I stayed in Italy for about 6 months.
11.When I returned our relationship deteriorated. Enzo started accusing me of having affairs and behaved in a very jealous manner. I discovered that he had been following me and that annoyed me very much.
12.I eventually decided that I had enough of his baseless accusations and reported the matter to the police.
13.The police made an application for a Protection Order on my behalf even though I stated that I was not really in fear of him.
14. We eventually separated after that and on 6^th March 2017 The Federal Circuit Court of Australia approved a consent order in relation to our two daughters…”
In the Application for a Protection Order form, the following information was provided about the Applicant’s behaviour towards Ms Barone – Exhibit 5 G17 pp. 173 – 174:
“On the 24^th of December 2015, the Aggrieved attended the Mareeba Police Station in a distressed manner. She stated that she and her husband have been sleeping in separate bedrooms for the last few months and that their relationship is deteriorating.
The Aggrieved stated that she was sleeping in bed with one of her children when the Respondent has entered and [sic] bedroom and woke her up. The Respondent then began asking ‘Where is he’ and ‘Who else is in here with you’. The Aggrieved stated that the Respondent was irrational and suggesting that she was committing adultery. The Aggrieved reassured the Respondent that it was just her in the room with their child and the Respondent has left.
This is the latest in a series of concerning acts by the Respondent in the last few months. The Aggrieved stated that the Respondent has frequently accused her for [sic] infidelity and is of the belief that she is seeing another man. The Aggrieved emphatically denied this; however the Respondent has commence stalking the Aggrieved when she is both at home and out.
The Aggrieved stated that several days ago, the Aggrieved went into town and a short time later, she became aware of the Respondent following her around in his vehicle. The Aggrieved tried to ignore this behaviour but has become extremely concerned as it progressed and when she learnt that their children were in the vehicle at the time, unrestrained.
The Aggrieved stated that a few weeks ago, she was in the bedroom with her daughter when she heard a noise outside the door. She stated that has she opened the door to find the Respondent utilising the audio recording device on his phone to record her conversation with her child.
The Aggrieved has stated that the Respondent enters her bedroom every second night and either demands to know where the ‘other man is’ or wakes her by touching and stroking her hair…
The Aggrieved stated that the Respondent calls her constantly throughout the day and sends text messages demanding to know her location. The Aggrieved stated that she would receive about ‘100 text messages and calls’ from the Respondent. She states that she is being constantly harassed by the actions of the Respondent and Police are concerned as to the escalation of his behaviour.
The Aggrieved stated that several weeks ago, the Respondent has used a knife and placed against his chest, telling the Aggrieved to stab him. The Aggrieved has become fearful and pleaded with the Respondent to stop; after a time he has done so.
…
The Aggrieved is reluctant to proceed with this application as she is worried that his behaviour may escalate into more serious acts. Police believe that an Order is warranted as the Respondent is displaying serious harassing and stalker behaviour and he has used the threat of self-harm as a means to engage with the Aggrieved. The Aggrieved stated that she does not want the Respondent to leave the residences; she just wants the behaviour to stop.”

On 25 January 2016, by consent, a Protection Order was made pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). The Applicant was ordered to be of good behaviour towards Ms Barone and their two children and not commit domestic violence, or associated domestic violence, towards Ms Barone and their children. The Protection Order was to continue in force until 24 January 2018 – Exhibit 5 G18 p. 196.
Apart from the proceedings in the Mareeba Magistrates Court on 23 June 2008 and the Protection Order made on 25 January 2016, the Applicant has not come adversely to the attention of the Police in either Australia or Italy.
THE HEARING
A Hearing was convened in Brisbane on 8 and 9 August 2022.
The Applicant was represented by Mr Frank Lanza and the Minister by Ms Elle Tattersall.
The Applicant appeared in person and was cross-examined by Ms Tattersall on the first day of the Hearing.
Mr Lanza called the following witnesses on the first day of the Hearing:
(a)Ms Graziella Barone;
(b)Mr Alessandro Coppo;
(c)Mr Marco La Perna;
(d)Ms Pat Woodcock;
(e)Mr Giovanni Ravanello;
(f)Mr Salvatori Girgenti;
(g)Ms Morena Nucci; and
(h)Dr Luke Hatzipetrou.
On the second day of the Hearing, the only person who gave evidence was Mr Giorgio Magnaghi. Telephone contact was made with Mr Renato Dalla Pria; however, due to language and hearing issues, Mr Dalla Pria was unable to give evidence.
Ms Tattersall did not call any witnesses.
The parties were given leave to provide written closing submissions, and the Tribunal received Submissions on Behalf of the Applicant (SBA) on 15 August 2022 and Respondent’s Closing Written Submissions (RCWS) dated 17 August 2022.
Finally, Mr Lanza filed Applicant’s Closing Submissions in Reply (ACSR) on 19 August 2022.
ISSUES
It is not contested that there are two issues for the Tribunal to resolve, namely:
(a)whether it has a reasonable suspicion that the Applicant does not pass the character test and, if so, whether the Applicant can satisfy the Tribunal that he passes the character test, as defined in s 501(6);
(b)whether the discretion in s 501(2) should be exercised to cancel the Applicant’s visa.
It will be noted that the power vested in the Minister under s 501(1) is discretionary. The Minister may cancel a visa if a person does not pass the character test. In short, there is two-step process required to be addressed. The first is whether, by the operation of s 501(6), as a matter of law, a person fails the character test. The second, is whether the discretion vested in a decision-maker should be exercised, nonetheless, in favour of an applicant. In this matter, s 501CA does not apply.
THE CHARACTER TEST
Subsection 501(6) sets out a number of scenarios whereby persons are deemed not to have passed the character test. In this matter, as previously noted, the relevant scenario is to be found in s 501(6)(e), namely, where a person has been found guilty of a sexually based offence involving a child, even though the person was discharged without a conviction. The Applicant was discharged without a conviction being recorded; however, s 501(6)(e) is drafted in a broad manner with the apparent purpose of ensuring that, prima facie, a person who has committed a sexually based crime will be deemed to have failed the character test, no matter how low the act or acts in question are on the scale of seriousness.
It is not contested that the Applicant does not pass the character test because he pleaded guilty to a sexually based offence involving a child, namely, Carnal knowledge with or of children under 16. Subsection 215(1) of the Queensland Criminal Code provides as follows:
“(1) Any person who has or attempts to have unlawful carnal knowledge with or of a child under the age of 16 years is guilty of an indictable offence.”
Although the term “sexually based offence” is not defined in the Act, it is clear that a breach of s 215(1) constitutes a sexually based offence. Further, s 215 is to be found in Chapter 22 of the Criminal Code which is headed “Offences Against Morality”.
Having failed the character test because of the operation of s 501(6)(e), the Tribunal is required to determine whether, nonetheless, the discretion vested in it should be exercised in favour of the Applicant.
In reaching a conclusion on this question, attention must be given to the operation of s 499 of the Act.
Subsection 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, pursuant to s 499(2A), a person or body must comply with a direction made under s 499(1).
A failure by a person or body to comply with a direction made pursuant to s 499(1) may constitute a jurisdictional error – BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9].
In this matter, the relevant Direction is Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
DIRECTION NO. 90
Section 5.1 of the Direction set outs its Objectives. In particular, the following subsections are of relevance in this matter:
‘(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test… is liable for refusal of a visa or cancellation of their visa.
(2) …Under subsection 501(2), non-citizens may have their visas cancelled if the decision-maker reasonably suspects that they do not pass the character test, and non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.”
The overarching Principles that guide decision-makers when, inter alia, determining whether to cancel a non-citizen’s visa under s 501 are contained in s 5.2.
The Principles are set out below:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.”
The Direction also provides specific guidance on how to exercise the discretion. Relevantly, s 6 provides that a decision maker, informed by the Principles quoted above, must take into account the considerations identified in ss. 8 and 9, where relevant to the decision.
Further, s 7 provides guidance on taking the relevant considerations into account.
This section provides that primary considerations should generally be given greater weight than the other considerations – s 7(2). Further, one or more primary considerations may outweigh other primary considerations – s 7(3).
Before turning to the primary and other considerations, it is important to consider the evaluative task required of a decision-maker. Reference can be made to the following observations of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
“The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
This interpretation is consistent with the observations of the Full Federal Court in Minister for Home Affairs v HSKJ (2018) 266 FCR 591at [34] – [35].
Section 8 sets out the four primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
The other considerations are set out in s 9 of the Direction, namely:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including;
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
I will consider each of the primary considerations and other considerations in turn.
PRIMARY CONSIDERATION 1 – the protection of the Australian community from criminal or other serious conduct
Introduction
Subsection 8.1 of the Direction provides the following general guidance to a decision-maker when considering the protection of the Australian community:
“(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.”
As will be noted, whilst s 8.1(1) outlines broad public policy considerations, s 8.1(2) focuses the attention of a decision-maker on two specific considerations. Each of these will be dealt with below.
First, a decision-maker must consider the nature and seriousness of a non-citizen’s conduct to date – s 8.1(2)(a). Subparagraph 8.1.1 outlines the following matters that a decision-maker must have regard to:
“8.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crime or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crime or conduct described below are considered by the Australian Government and the Australian community as serious:
(i)     causing a person to enter into or being a party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent on the decision-maker’s opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).”
Second, a decision-maker is required to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – s 8.1.2.
In considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the community’s tolerance for any risk of future harm is lower as the seriousness of potential future harm increases. Some conduct, and the consequential harm caused, if repeated, is so serious that any risk it may be repeated is unacceptable – s 8.1.2(1).
In assessing the risk posed by the non-citizen to the community, decision-makers must have regard to, cumulatively – s 8.1.2(2):
“a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non-citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…”
Consideration will now be given to the two overarching issues outlined in s 8.1(2) namely:
(a) the nature and seriousness of the Applicant’s conduct to date; and
(b) the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the Applicant’s conduct
Sexual crimes
It is not contested that the Applicant committed a sexual crime, and this is viewed very seriously by the Australian Government and the Australian community – s 8.1.1(1)(a)(i), Exhibit 1 p. 5 para 7.
Mr Lanza, quite properly, drew the Tribunal’s attention to the following sentencing remarks of Magistrate Braes – Exhibit 1 p. 5 para 7, Exhibit 5 G5 p. 49:
“It is a serious offence. In the higher court, it carries a penalty of up to 14 years imprisonment. As I’ve already indicated, it would appear, from my own research, the courts to impose a wide range of penalties for this offending. Ordinarily, I would have thought to impose a custodial sentence, albeit possibly suspended…”
Clearly, the commission of a sexual offence, no matter the circumstances, is a very serious matter, and, as Magistrate Braes observed, would ordinarily carry with it a custodial sentence.
The seriousness of a sexual crime is even more so where it is committed against vulnerable members of the community, in this case, a girl of only 13 years of age – s 8.1.1(1)(b)(ii).
Looked at in the abstract, a decision-maker would ordinarily view the commission of a sexual crime against a child as, not only very serious and reprehensible, but also as a matter that should weigh heavily against an applicant. However, it is essential to dispassionately evaluate the evidence presented and to understand the context in which the crime or crimes was or were committed.
The legal representatives of the Minister initially made the following submissions – Exhibit 3 pp. 5 – 6 para 22:
(a) the offence is plainly serious as it was a sexual one involving a child;
(b)there was a significant age gap of 20 years between the Applicant and the child;
(c) the Applicant described the relationship with the child as akin to a daughter or little sister;
(d)the crime involved a significant breach of trust;
(e)this type of crime could lead to long-term trauma for the child; and
(f)the child’s mother was distraught after learning of the offence.
At the conclusion of the Hearing, the following written submissions were made on behalf of the Minister – RCWS pp. 1 – 2 paras 3 – 4:
(a)the Applicant’s offence and conduct can only be found to be extremely serious;
(b)the Applicant’s crime was not only a sexual crime, but one committed against a vulnerable child with whom he had been placed in a position of trust;
(c)he had a friendship with the child and her mother for a number of years prior to the offence;
(d) he had come to the child’s home at the invitation of the mother and stayed in the child’s room so that she could talk to him;
(e) he was viewed as a family member, and would drive the child around and participate in family activities including watching football; and
(f)he would hold hands with the child on occasion.

Mr Lanza, on behalf of the Applicant, made the following submissions – SBA pp. 13 – 14:
(a) Police records disclose that the Applicant has only been charged with one offence;
(b)he pleaded guilty to the charge of carnal knowledge of a child under 16 years;
(c)he was ordered to perform 240 hours of unpaid community service, and no conviction was recorded;
(d)the crime did not involve violence;
(e)the child was not overborne, but was a willing, if not, a proactive, “player”;
(f)the Applicant was not an aggressor;
(g)he desisted of his own volition; and
(h) both the Applicant and the child had consumed alcohol.
Before dealing with the evidence, it is appropriate that the Tribunal deal with its observations of the Applicant when he gave testimony.
The Tribunal was impressed by the way in which the Applicant testified. He attempted to answer all questions asked of him in a straightforward way, no matter how embarrassing or intimate. It was obvious to the Tribunal that the Applicant was very nervous, and he appeared to be unwell. The trauma of the proceedings and the long delays before his visa was revoked have had an obvious impact on his health. The same could be said of Ms Barone who was also extremely emotional during the proceedings.
The Tribunal had no reason to doubt the veracity of the Applicant’s testimony and formed a positive view of him as a witness.
Turning now to the evidence, the starting point is that the Applicant pleaded guilty to the commission of a sexual offence against a 13 year girl, and in so doing, not only breached the trust reposed in him by the child’s mother, but also engaged in conduct that could have had disastrous consequences for all involved, not the least, an immature and vulnerable girl.
The evidence discloses that the Applicant knew the child complainant’s mother for some time, as they worked together. It was the mother who had invited the Applicant to live in her home, and it was the mother who suggested that the Applicant share the same bedroom as her underage daughter.
This was a very strange arrangement, and the Tribunal has not been given any sensible reason why the mother would have wanted a man over the age of 30 years sleep in the same room with her daughter, when, ostensibly, he could have shared the son’s bedroom. This was a strange arrangement, and the mother’s de-facto partner who lived with her, made this statement to the Police – Exhibit 5 G6 p. 52:
“When I started living with [redacted] at [redacted] Enzo was sleeping in the same bedroom as [redacted]. Although I didn’t feel comfortable with it I didn’t say anything because I didn’t want to cause conflict.”
Clearly, the de-facto partner had concerns about the Applicant and the child sharing the same bedroom. Why the mother would not have the same concerns is not obvious to the Tribunal.
Next, the mother not only allowed her 13 year old daughter to consume alcohol, but, it would appear, to go out with friends and consume alcohol without her supervision and counselling. On the night of the offence, the child complainant had left the family home and went drinking with friends at some other location. The child complainant informed investigating Police that she had been drinking Vodka Cruisers – Exhibit 5 G6 p. 55.
In short, the mother not only allowed, but apparently encouraged, a man over 30 years of age share the same bedroom as her underage daughter, and then allowed the same daughter to drink alcohol outside of the family home, and when unsupervised.
It is not disputed that the Applicant knew the complainant’s age as he had been a family friend for five years – Exhibit 5 G6 p. 54.
It is also not disputed that, on the night of the offence, both the Applicant and the child complainant had been drinking, and, as Magistrate Braes observed – Exhibit 5 G5 p. 49:
“…Perhaps if there had been no alcohol involved or if you had not been affected to whatever degree it was by alcohol, you may have had the good sense to avoid the situation altogether.”
The consumption of alcohol, of course, does not absolve the culpability of the Applicant, but it puts the commission of the offence in context.
It is also not dispute that it was the child complainant who instigated the chain of events that led to the commission of the offence. Again, Magistrate Braes observed – Exhibit 5 G5 p. 49:
“You were not, it would appear, the aggressor.”
The child complainant gave the following account to CPIU officers – Exhibit 5 G6 p. 55:
“…The complainant child disclosed that she and the defendant were lying together on her bed in her bedroom when she ‘pushed herself onto him’ and was kissing the defendant before she got on top of him…”
Again, this account, in no way, justifies or downgrades the seriousness of the offence, but it does highlight that the Applicant did not behave in an aggressive, intimidatory or even initiatory manner.
Next, it was the Applicant who voluntarily desisted from engaging in further sexual activity. As Magistrate Braes observed – Exhibit 5 G5 p. 49:
“And you desisted of your own volition.”
The uncontested evidence is that the Applicant left the bedroom and did not engage in any further sexual activity with the child complainant on that night, or any time thereafter. Although the Police records refer to the Applicant and the child complainant engaging in sexual relations on two occasions, the only evidence before the Tribunal relates to the occasion set out above. Indeed, Mr Henry SC (as he then was) made the following submission to the sentencing Magistrate – Exhibit 5 G5 p. 42:
“The third aspect is that, as is now accepted and reflected in the charge amendments historically, there was only one episode involving the offence.”
Regard must also be had to the sentence imposed by the Court for the sexual offence that was committed – s 8.1.1(1)(c).
In this matter, the presiding Magistrate did not record a conviction against the Applicant and only ordered him to perform 240 hours of unpaid community service.
Normally, except where otherwise provided (as with s 8.1.1(a)(ii), (a)(iii) or (b)(i)), the sentence imposed by a Court for a crime or crimes is a relevant factor to be taken into account when assessing the seriousness of a crime or crimes. It follows logically that the longer the sentence, the more serious a crime that has been committed.
As his Honour, Magistrate Braes, observed, the maximum penalty in a superior court for the commission of the crime the Applicant was charged with is 14 years imprisonment. The fact that the Applicant not only did not receive a custodial sentence, but, in fact, did not have a conviction recorded, suggests that the sentencing Magistrate was of the opinion that the offence was at the lowest end of the scale.
Of relevance, in this regard, are the following submissions of Mr Henry SC at the sentencing and the response of Magistrate Braes – Exhibit 5 G5 pp. 44 – 45:
“MR HENRY: …I’ve explained to my client this is the difficulty, of course, that no matter what happens, there’s still going to be the exercise of discretion on the part of the authorities. Certainly if your Honour’s persuaded of the view that you can consistently with authority opt for a non-custodial option then it’s not automatic. I’d certainly ask that your Honour consider the non-recording of conviction for these reasons – well really for this reason: it will plainly bear upon the exercise of the authorities discretion in determining whether or not he’s going to be permitted to remain in Australia… But plainly it will to be my client’s significant advantage that he will be able to mount a more reasonable argument to authorities if there’s no conviction recorded… well he’s made a life for himself here in Australia but stands with all of that in jeopardy before you as result of the one act in which he desisted…”
After an exchange with Mr Henry SC about the range of sentencing options available, his Honour the made the following observation – Exhibit 5 G5 p. 46:
“No, I’ve been contemplating imprisonment, but whilst you that ultimately it’s a discretion of the other authorities in respect of what happens with his visa, I was also concerned about the recording of a conviction.”
It is abundantly clear that, when his Honour determined not to impose a custodial sentence and not to record a conviction, he took into account the possible visa consequences as outlined by Mr Henry SC. In short, the transcript of the Magistrate Court proceedings disclose that his Honour specifically determined a sentence which would not carry with it a second penalty, namely, the cancellation of the Applicant’s visa.
Also, of interest, are the remarks of the Police Prosecutor, Sergeant Hafner. After Mr Henry’s submissions, Sgt. Haefner said that he did not wish to counter the submissions that Mr Henry SC had made and said – Exhibit 5 G5 p. 47:
“Certainly there are aspects to this case that may be unique…”
Sgt. Haefner referred to the age disparity between the Applicant and the child complainant, but did not advance an argument against a non-custodial sentence, nor the non-recording of a conviction.
This is a unique case where the sentencing Magistrate was presented with specific submissions about the visa consequences and of the sentence imposed, and, it would appear, took that into account when handing a lenient sentence.
Family violence
The next matter concerns acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed. The term “family violence” is defined, relevantly, in s 4(1) of the Direction as follows:
“family violence means 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. Examples of behaviour that may constitute family violence include:
…
c) stalking…”
The legal representatives of the Minister initially submitted that the Applicant had engaged in serious conduct constituting family violence, and which, led to the making of a Protection Order in January 2016 – Exhibit 3 p. 6 para 24.
The Applicant suspected his wife of infidelity which resulted in him – Exhibit 3 p. 6 para 24:
(a)waking Ms Barone up in the middle of the night to ask ‘where is he?’ and ‘who is in here with you?’;
(b)stalking her movements, including by following her even while he was looking after their children;
(c)recording her conversations with their children; and
(d) presenting a knife to her and requesting that she stab him in the chest.
In written submissions after the Hearing, the legal representatives of the Minister challenged Mr Lanza’s submission that the Applicant’s domestic violence was of a very minor nature, and drew the Tribunal’s attention to the following aspects of Ms Barone’s testimony – RCWS pp. 2 – 3 para 6:
(a) the Applicant became “obsessed” with her when she returned from Italy;
(b) she tried to talk to him about his behaviour about twice a week and get him to cease but he would not;
(c) his behaviour was unfair and “too much for me” and she eventually went to the Police because she did not know how to stop him;
(d) everything she told the Police was the truth;
(e)the Applicant would enter the bedroom she was sharing with one of their two children and wake her up and ask “where is he” and “who else is in here with you” but the children would not wake up;
(f)the Applicant frequently accused her of infidelity and seeing another man;
(g)the Applicant would follow her when she had the children and had done so “a few times”;
(h) the Applicant had attempted to record conversations she had with their children and she had also done so in response;
(i)the Applicant would text or call her approximately 40 times a day, although some of the messages and calls were relevant to the day to day happenings of the children; and
(j) the Applicant had placed a knife against his chest and had told her to stab him.
The Tribunal accepts that this represents an accurate account of the testimony of Ms Barone.
The Tribunal has some difficulties with the following submission of the Minister – RCWS p. 3 para 7:
“Whilst Ms Barone stated that the applicant was never violent to her she did state that she was scared of the applicant.”
The Tribunal agrees that Ms Barone testified that the Applicant was never violent towards her. For example, Ms Barone stated under cross-examination – Tr. 8.8.2022 p. 30:
“…I mean, he was never violent with me.”
However, the second half of the submission is more problematic. Ms Barone gave the following testimony – Tr. 8.8.2022 p. 30:
“…I been in Italy for six months so our relation was a little bit, you know, broke down and then when I came back and it was definitely changed and obsessed of me, like, a jealous man, a typical Sicilian one. And but I wasn’t at all scared of him. I was just of his, you know, mental issues just in case…”
Later, when questioned about an incident when the Applicant held a knife against his chest, Ms Barone gave the following testimony – Tr. 8.8.2022 p. 33:
“Then there’s also a report that you’d said that he’d used a knife and placed it against his chest and told you to stab him?---Yes, this one was – I wasn’t scared of him – of me but I was scared of him because he played to say, ‘Well, if you don’t – if you have actually enough of me, just bring the knife and kill me.’ And in that time I say, ‘No, I’m not going to do this. You are the father of my kids, of course we can talking and, you know, sort out this situation as a good parents.’
So you’re saying that it caused you fear but not for your personal safety? Is that what you’re saying?---Not for my personal one because Enzo was very depression that time…”
It is tolerably clear that Ms Barone was not scared of the Applicant, but was actually concerned about his welfare as he was depressed and not acting rationally.
The Minister invites the Tribunal to accept that the Applicant engaged in conduct consistent with both the Police records and Ms Barone’s testimony – RCWS p. 3 para 8.
In reaching a conclusion on this submission, it is necessary for the Tribunal to state its view on the testimony given by Ms Barone. Ms Barone was extremely emotional when giving evidence. It was clear to the Tribunal that, in the period leading up to the Hearing, she has been under considerable stress. Nonetheless, despite her obvious difficulties with aspects of the English language, she gave solid and direct responses to the questions posed. She appeared to the Tribunal to be an honest, straightforward person and a witness of credit.
In these circumstances, the Tribunal accepts the veracity of her testimony, and insofar as there are differences between Ms Barone’s recollection of the events leading to the making of a Protection Order, and those of the Applicant’s, the Tribunal prefers the recollection of Ms Barone.
However, even proceeding on this assumption, the evidence before the Tribunal discloses that the Applicant did not cause or threaten harm to either Ms Barone or their children, or, for that matter, any other person. The evidence discloses that, on one occasion, he did threaten to harm himself and that Ms Barone was scared for him because he was suffering from depression. However, she was not scared of him.
The issue of family violence appears in both Primary Consideration 1 and 2. The Tribunal is required to properly consider and assess the question of family violence in the context of the wording of each Consideration. The issue of double counting does not arise.
With respect to the issue of the Protection of the Australian community in Primary Consideration 1 when assessing the nature and seriousness of the conduct, the Tribunal is required, inter alia, to determine if there has been an act or acts of family violence, and then:
(a) the frequency of the offending;
(b) whether there was any trend of increasing seriousness; and
(c)the cumulative effect of repeat offending.
Family violence under the Direction is viewed very seriously irrespective of whether a conviction has been recorded or a sentence imposed – s 8(1)(a)(iii).
It is clear that the Applicant behaved inappropriately on Ms Barone’s return from Sicily. His jealousy and obsessive behaviour, born from his misplaced belief that his wife was having an affair, led him to engage in behaviour that ultimately destroyed the marriage. No excuses can be made that would justify the behaviour of the Applicant during that time, and the fact that he was following his wife and making repeated telephone calls and texts, does not go in his favour.
It is important to note that the Direction focuses on family violence. The examples given in the definition of that term in s 4(1) include:
(a)an assault;
(b)a sexual assault or sexually abusive behaviour;
(c) stalking;
(d)repeated derogatory taunts;
(e)intentionally damaging or destroying property;
(f)intentionally causing death or injury to an animal;
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
(h)unreasonably withdrawing financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
(i)or preventing the family member from making or keeping connections with his or her family or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Examples (a), (b), (e) and (f) all involve acts of physical violence. Examples (g) to (j) involve behaviour designed to control a family member’s life to their detriment, either physically, financially, emotionally or culturally. Looked at overall, then, the definition of family violence is designed to capture what is commonly referred to as an abusive relationship.
With the exception of stalking, none of the other examples is of relevance to the facts of this matter. It is clear that Ms Barone was not in an abusive relationship of the type contemplated by the drafters of Direction.
It is critically important, then, to closely assess Ms Barone’s testimony as to her perception of her relationship with the Applicant and why she sought the assistance of the Police.
Ms Barone testified that the Applicant repeatedly messaged and contacted her, and she became desperate – Tr. 8.8.2022 p. 30:
“And I try to go to the police really because I was just – I don’t know the way to stop him to do this.”
When questioned about the Applicant stalking her, Ms Barone testified as follows – Tr. 8.8.2022 p. 31:
“And that he stalked you?---Well, in that time I thought this, I mean, because he was upset of me, I thought it was probably too much but this is probably not the right word the police use for that but – yes.
So what did you mean then?---I mean when you have someone, you know, in your life push you too much and probably I don’t have any specific word to say something, probably the police in that time did just suggest to me that word and then write down but really it wasn’t just – I think the moment we’d been separated for a long time and of course for me was just a little bit too much but still after these things we lived still together another year with no problem.
You reported to the police that you became aware that he was following you around in his vehicle?---He was probably scared I took the kids away from him.
So did you tell police that he was following you with his vehicle?---Yes, yes, I told of course but he just follow me when I got the kids with me and I believe he was just scared, you know, I can take the kids out of him.
Because the police records say that you tried to ignore it but you became concerned because you learnt that the children were in his vehicle at the time he was following you and that they weren’t restrained?---He was in with the kids because I think he came to me one day when I was working and I just ask him, ‘Why you come in here with the kids, you know, without shoes,’ but because he’s, you know, I think just Italian thinking they can’t come out with the shoes because I’m very protective of my kids.
So how often was he following you then?---Look, I don’t really remember. It’s a long time ago. It’s probably a few times, two times.”

Whilst it is not contested that the Applicant was following Ms Barone at times, and engaging in petty controlling behaviour, the “stalking” in question, based on Ms Barone’s testimony, was of a relatively mild variety. It was not regular, it was not threatening, and it involved no violent undertones.
A further key matter is the behaviour of the Applicant once the Protection Order was made. The following testimony was given by Ms Barone – Tr. 8.8.2022 p. 30:
“So you were in a relationship at that time?---I was in a relationship, yes, yes. We were in a relation after also, yes, the – oh my God, in January 25 I think we done the court, Mareeba, about this and it was agree and we actually still living for another year together as a family. So from that time he never, you know, he calmed down. He never done the same behaviour anymore.”
Later, Ms Barone testified as follows – Tr. 8.8.2022 p. 33:
“Our relationship finish in 2015 and but after the court order in January 2016 we still live together one year with our kids and I never had any violent act from Enzo and my kids was happy to live together, even if me and Enzo was already separated in the same house.”
Accordingly, it would appear that, following the issue of the Protection Order, the Applicant and Ms Barone, together with their two children, lived in the same house for another year without the Applicant engaging in any further inappropriate conduct.
False or misleading information
Although not raised in the Respondent’s Statement of Facts, Issues and Contentions (Exhibit 3), Ms Tattersall raised, at the Hearing, the Applicant’s incorrect answers in his citizenship application form and incoming passenger cards wherein he failed to disclose his carnal knowledge offence – Tr. 8.8.2022 p. 23.
First, in his Statutory Declaration of 16 November 2020, the Applicant provided the following information – Exhibit 5 G10 p. 99:
“12. I have never interacted with the Australian government or State or Territory governments in deceitful manner or practise deception or fraud in dealing with them other than stating in my application for Australian Citizenship that I had no prior convicitons [sic].
13.I have previously explained in my earlier statutory declaration the reasons why I made that statement. I believed that I did not have to disclose it on account of the fact that the sentencing Magistrate, at the time of my plea of guilty, had ordered that no conviction be recorded. I am trying to explain my action not to justify it.”
In his Statutory Declaration of 18 February 2021, the Applicant gave the following account of how and why he answered the citizenship application form in the manner he did – Exhibit 2:
“3. My knowledge of legal terminology, requirements and matters is very limited, even more so when it comes to legal terminology in English.
4. When I applied for Australian citizenship by conferral I did so online. My wife Grace Barone helped me to fill in the answers. She also has no legal training. I did not reflect, as I should have, upon possible consequences when answering the questions contained in the ‘Character declarations’ part of the application. It was wrong of me to do so.
5. I also neglected to carefully read the ‘Consent declarations’ and ‘Declarations’ part of the application. Had I directed my mind properly, or had I sought the advice of a person with legal knowledge that would have directed my mind to it, both the seriousness and consequences of clicking the ‘agree’ button would have become obvious to me.
6. As previously stated, I am only trying to explain, not to justify myself or place blame on others for my wrongful actions.
7. After receiving the letter inviting me to comment on adverse information, I sought the help of a Migration agent who, I now know, is not a legally qualified person.”
At the Hearing, the following exchange occurred between the Tribunal and the Applicant – Tr. 8.8.2022 p. 23:
“DEPUTY PRESIDENT: …I suppose the question I would like to ask you, Mr Musumeci, is did you deliberately lie in your rooms [sic], your incoming passenger forms - - -?---No, I never lie.
- - - and your application. Did you intend to mislead the government by the answers you gave?---No.
Did you answer them to the best of your ability and honestly?---Yes.
Do you accept that you may have incorrectly answered them?---Yes.”
As previously noted, the Tribunal formed the view that the Applicant was a witness of credit, and he attempted to answer the questions asked of him in an honest and direct manner.
Clearly, English is his second language, and he does get confused at times when questions are asked of him, particularly, if the questions are of a quasi-legal nature.
The Tribunal has proceeded on the basis that the Applicant honestly, but mistakenly, answered the relevant question in the citizen application form and incoming passenger cards in the manner he did, and, accordingly, no adverse inferences are drawn against him.
Conclusion
It is not contested that the Applicant committed a sexual crime, and such a crime is viewed very seriously by the Australian Government and the Australian community.
However, the sexual crime committed by the Applicant was at the lowest end of the spectrum and resulted not only in the sentencing Magistrate not awarding a custodial sentence, but also not recording a conviction. This sentencing outcome was made specifically after Mr Henry SC referred the sentencing Magistrate to the possible visa implications of recording a conviction.
Second, although the Applicant did engage in acts of family violence, including stalking, it is clear that he did not commit any acts of violence on members of his family and the conduct that led to the making of the Protection Order was out of character, short in duration, and completely ceased once the Protection Order was made.
Both the sexual crime and the family violence, the subject of these proceedings, are at the lowest end of the spectrum, and the Tribunal takes that into account in the ultimate weighing exercise.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
As previously explained, a decision-maker is required, when assessing the risk posed to the Australian community by the offending non-citizen, to have regard to, cumulatively – s 8.1.2(2):
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of re-offending and evidence of rehabilitation achieved.
As also explained, that assessment is predicated on the Australian community’s tolerance for any risk of future harm being lower as the seriousness of the potential harm increases – s 8.1.2(1).
Turning to the first issue, namely the nature of the harm should the Applicant reoffend, the Tribunal accepts the Minister’s submission that it would involve physical and psychological harm to members of the Australian community, including children – Exhibit 3 p. 7 para 27.
However, the key issue is the likelihood of the Applicant engaging in further criminal or other serious conduct.
Before turning to the evidence of Dr Luke Hatzipetrou, it is not contested that the Applicant has no criminal history other than the sexual offence discussed above. There is no evidence that the Applicant has been the subject of criminal proceedings whilst he lived in Italy, nor is there is any evidence of any other criminal charges laid against him while he has resided in Australia. Further, the Tribunal was not presented with any evidence of his traffic history, and, in the absence of such evidence, the Tribunal proceeds on the assumption that, overall, the Applicant has obeyed the traffic laws of Queensland.
The Tribunal was presented with a detailed report prepared by Dr Hatzipetrou, Clinical Psychologist, dated 21 October 2020. Dr Hatzipetrou interviewed the Applicant at his Brisbane Clinic on 11 September 2020 for three hours, and the interview incorporated a risk assessment – Exhibit 5 G12 p. 119, 125.
First, Dr Hatzipetrou utilised the Psychopathy Checklist: Screening Version (PCL:SV), consisting of 12 items which are assessed through the use of collateral information and a structured interview. The PCL:SV, according to Dr Hatzipetrou, possesses good reliability as a screening tool in forensic and non-forensic environments and is correlated with the Psychopathy Checklist – Revised (PCL-R). The PCL:SV is implemented in clinical practice to assist in the assessment of general reoffending and a screen of psychopathy – Exhibit 5 G5 pp. 127 – 128.
Dr Hatzipetrou provided the following analysis based on the information provided by the Applicant – Exhibit 5 G5 p. 128:
“Based on the available information and assessments, Mr Musumeci did not present with superficial charm or grandiosity. Likewise, he did not present with an inflated view of himself or his abilities. He did not present with a pervasive pattern of deceitful or dishonest behaviours. In contrast, he did present with remorse and empathy. To this end, he had demonstrated contrition regarding the offence that occurred in 2007 and possessed an understanding of the potential harm that his actions may have caused the child complainant. In addition, he did not present with a serious mental health disorder and referred to prior substance abuse that emerged in Italy during his early adulthood and prior to his travels to Australia. To this end, there was no evidence Mr Musumeci persisted in his abuse of illicit drugs or had demonstrated an alcohol abuse disorder.
…
With regards to the prior offending, Mr Musumeci did not justify or condone his behaviours. The evidence indicates Mr Musumeci’s actions lacked self-control and judgment, yet appeared to be uncharacteristic. He did not present with previous criminal convictions and there had been little evidence of pervasive problems with impulsivity or behavioural problems emerging in childhood and adolescence. Moreover, Mr Musumeci had returned to Australia on two prior occasions with the specific goals to gain employment and embrace a better life. He had support from his family. There had been no evidence to confirm antisociality or clinical features of psychopathic personality traits. On this occasion, Mr Musumeci’s score on the PCL:SV fell well below the diagnostic cut-off for psychopathy. As such, the estimated risk of general reoffending was likely to be low and, importantly, there was no evidence of psychopathy or antisocialitiy.”
Dr Hatzipetrou then dealt with the risk of the Applicant reoffending and, in so doing, considered the Applicant’s sexual violence history, psychological adjustment, any mental disorder, social adjustment and manageability. His conclusion was as follows – Exhibit 5 G12 p. 130:
“In summation, Mr Musumeci’s overall risk of sexual recidivism was likely to fall within the low range. Given the span of time that had elapsed and the contextual factors associated with the offending, Mr Musumeci’s risk of recidivism was likely to have further decreased. Whilst he was charged, he was not convicted of carnal knowledge with the child complainant. Furthermore, he completed the court ordered community service. Mr Musumeci has not reoffended over the past thirteen years and, importantly, did not possess attitudes or beliefs that condoned or justified the offending behaviour. However, at the time of the reported offending, the facts indicate that Mr Musumeci was under the influence of alcohol, as was the child complainant. Furthermore, he had been sharing a bed with the child complainant which was condoned and known to the complainant’s mother. Whilst the offending was reported to the police several months after the actual incident, Mr Musumeci was not involved in subsequent sexual acts with the child complainant.”
Having considered all of the material before him, and having conducted a three hour interview and assessment of the Applicant, Dr Hatzipetrou concluded with the following analysis – Exhibit 5 G12 pp. 130 – 131:
“Based on the available information and current assessment, Mr Musumeci’s risk of general reoffending is likely to be low. The risk of reoffending in a sexually abusive manner is also likely to be low. The risk assessment tools provide estimates of risk based on the available clinical interviews and collateral information. The risk assessment tool allows forensic clinicians to integrate findings into a comprehensive clinical evaluation whereby contextual factors are considered and formed into a risk formulation. While Mr Musumeci’s risk cannot be considered negligible, the current risk assessment and evaluation confirms a low risk of reoffending. Importantly, the available findings indicate Mr Musumeci has not offended since this offence and there was no evidence of abnormal sexual preferences or paraphilias.
Within the literature one must consider the protective factors possessed by offenders. These protective factors are important to managing offenders in the community and the process of rehabilitation. With regards to Mr Musumeci, he has a secure attachment to his parents and siblings who continue to live in Sicily, yet he has established accessible social supports in Mareeba and Victoria. He has demonstrated prosocial behaviours and strong connections to the community. There was evidence of well-established social judgment and moral reasoning. Likewise, he did not present with a pervasive history of impulsivity or a learning disability. Importantly, there was no evidence of antisocial personality disorder or psychopathic personality traits.
Mr Musumeci did not present with a serious mental health disorder, substance abuse or engagement with criminal networks. Furthermore, Mr Musumeci has demonstrated the capacity to maintain stable employment and has been part of a regional community in excess of twenty years. He has described and maintained a credible work history and a penchant for regional communities. He maintains regular child custody payments and there were no indications of irresponsibility. To this end, he had abstained from illicit drug use and there was no evidence of relapse. Furthermore, Mr Musumeci had accepted full responsibility for his offending behaviour and understood the potential impacts on the child complainant and her family.”
The Tribunal also had the benefit of listening to Dr Hatzipetrou give testimony on the first day of the Hearing. Ms Tattersall asked a number of very pertinent questions; however, from the Tribunal’s perspective, there was one apparent inconsistency in his report. Dr Hatzipetrou opined that the Applicant’s risk of reoffending was low, but then went on to state that it was not negligible. The following exchange occurred between the Tribunal and Dr Hatzipetrou – Tr. 8.8.2022 pp. 92 – 93:
“Now, excuse me for being confused here. You say the risk can’t be considered negligible but then you said there’s a low risk. So what’s the difference between the two. What’s the difference between a negligible risk and a low risk?---I think the point is that, you know, people won’t (indistinct) there’s assumption that the risk assessment should tell us that there’s no risk. And the two of them are not – that, you know, they don’t have that predictive power. That’s in terms that we understand, you know, human behaviour and - - -
Doctor, I know that but I’m just asking, are you saying a negligible risk is basically zero? Is that what you’re saying?---Yes. Yes.
Because I want to understand why you’re saying in your considered opinion, he has a low risk of reoffending but saying it’s not negligible because in normal English, that means the same thing. So you’re saying you can’t say there is no risk of reoffending but it’s only a low risk based on your considered opinion. Is that what you’re saying? ---Yes, I’m saying it’s a low risk because I can’t say zero risk. The tools are not designed to tell us that and - - -
Okay. That’s all I needed to know. Thank you?---But it would be – you know, it wouldn’t be a good practice and it would be unjustified to say he is zero risk because, you know - - -
All I need to know… Doctor, is a very simple proposition. Is your negligible risk equating to zero risk?---Yes.”
It is tolerably clear that no professional person, when giving their considered opinion on the question of future risk assessment, can opine that any person carries with them a zero risk of reoffending. To do so would be speculative, other than in the most extreme of circumstances. No mortal person is perfect, and with that inherent imperfection carries with it the risk of imperfect behaviour.
It was also clear to the Tribunal that Dr Hatzipetrou was of the view that the Applicant poses little, if next to no, risk to the Australian community of reoffending. He obviously could not opine that there was no risk, because that is an absolute judgment which cannot be rendered on any person. Nonetheless, it was very clear that, in his professional opinion, the Applicant poses an insignificant risk to the Australian community.
The Minister submitted that the Tribunal should view the opinions expressed by Dr Hatzipetrou with caution for the following reasons.
First, it was submitted that as Dr Hatzipetrou was unable to advise how much the Applicant had drunk on the night of the offence, it is difficult to see how, or the extent, alcohol intake affected his behaviour – RCWS p. 4 para 10.1
The Tribunal does not agree with this submission. The uncontested evidence is that the Applicant had consumed alcohol on the night of the offence. There is no suggestion that he was drunk or incapable of forming a judgment. Alcohol coloured his judgment, rather than rendering him incapable of discerning right from wrong. A fair reading of Dr Hatzipetrou’s report is to the like effect and the Tribunal cannot see any error either in Dr Hatzipetrou’s report or testimony with respect to alcohol intake.
Second, it is submitted that Dr Hatzipetrou expressed, under cross-examination, concerns with the relationship of the Applicant and the child complainant, including the age differential and the time spent together. Further, it is submitted that Dr Hatzipetrou accepted there was some lack of insight by the Applicant in the lead up to the offence and at the time of the offence – RCWS p. 4 para 10.2.
The Minister’s submission is correct as far as it goes; however, it needs to be put in context. Ms Tattersall asked Dr Hatzipetrou to comment on his opinion that there had been no clear evidence of physical or psychological coercion during the course of the offending. Dr Hatzipetrou provided the following testimony – Tr. 8.8.2022 p. 90:
“…with what was available to me, there had been no evidence that he had forced or used intimidation to engage in sexual acts with the child complainant. Certainly there had been no evidence available to me that indicated that he had been grooming the child complainant or using any sort of means to manipulate his role as an adult to gain control of the situation. That’s what that statement means.”
Subsequently, Ms Tattersall asked if Dr Hatzipetrou had any concerns with the Applicant’s then relationship with the child complainant prior to the commission of the offence – Tr. 8.8.2022 p. 90:
“…he was an older male and he seemed to, I suppose, not – I suppose, I won’t say over-familiarised. I think he described her as just – it sounded like he – they spent a fair bit of time with this young girl whilst he was living with her or had forged a friendship with the mother. And I think (indistinct) see that she was – I described that, you know, he had spent time and there was a close (indistinct) a close bond but not necessarily as an intimate one. And what he described – it’s difficult to say if that’s – how unusual it is given the circumstances where he was living. I think they were at Mareeba in the Mareeba region. You know, whether it was (indistinct) the context of (indistinct) this friendship with the complainant’s mother and then it became, you know, they’ve had a great – a good friendship and often going over there for barbeques and, you know. So look, it can seem a little bit odd. But I didn’t see – it didn’t seem to me to be sinister from what was described.”

His Honour highlights the discretion vested in a decision-maker. The fact that a non-citizen has broken the law does not lead inexorably to the result that the mandatory visa cancellation will be upheld. In this matter, there are a number of factors that need also be inserted into the weighing process:
(a) no conviction has been recorded against the Applicant;
(b) no custodial sentence has been handed down;
(c) there are no instances of crimes of violence;
(d) the Applicant has only once been charged with a criminal offence;
(e) he has no history of traffic infringements;
(f)he has been in continuous employment since his arrival in Australia;
(g)there is no history of sustained family violence, the only instances that occurred were for a small period in 2015;
(h)the Applicant consented to the Protection Order and complied with its terms; and
(i)the Applicant has a deep and loving relationship with his children and a mature and respectful relationship with his ex-wife.
Critically, consideration now needs to be given to the first sentence of s 8.4(2) (previously the third sentence of cl. 13.3(1) of Direction No. 79). Stewart J, in FYBR, made these observations (at [98]):
“It means that in any particular case the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. This is to say no more than that in the case of a particularly egregious offence, or a particularly severe character assessment, that alone will be sufficient basis to refuse the visa. It is the one end of the spectrum. But that does not detract from the community's expectation that there must be an assessment as to “appropriateness” that is required by the second sentence.”
His Honour then went on to provide this helpful plain English summary of community expectations (at [101]):
“Understood in this way, community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.’ This limited expression of ‘community expectations’ by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.”
The wording of Direction No. 90 makes it abundantly clear that acts of family violence and serious crimes against women and children raise serious character concerns. In the words of Stewart J, the more serious the breach, the more serious it will be held against a non-citizen, and, in the case of family violence and serious offences against women and children, it will often be decisive.
This conclusion is buttressed by s 8.4(3) which provides that the expectations discussed apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. In short, even when a non-citizen does not pose a measurable risk of physical harm to the community, the commission of acts or crimes which raise serious character concerns is sufficient to conclude that the Australian community would expect that a non-citizen should not retain a visa and remain in Australia.
The wording of this Consideration is different in a number of respects to Direction No. 79. Direction No. 90, for example, specifically draws decision-makers attention to the seriousness that family violence is viewed by the Australian Government. A decision-maker properly applying Direction No. 90 must give due consideration to this principle, which, as previously discussed, is reflected in a number of Considerations.
In this matter, the criminal offence committed by the Applicant was at the lower end of the scale of seriousness and, in the case of the family violence, was also at the lower end of the scale, and, in both instances, involved no violent acts and, in both cases, neither the child complainant or Ms Barone were threatened by, or in fear of, the Applicant.
Conclusion: Primary Consideration 4
A sensible reading of Primary Consideration 4 links the expectations of the Australian community to the protection of the community. Primary Consideration 4 requires a decision-maker to evaluate the evidence presented with a view to determining if the personal circumstances of a non-citizen weigh more heavily than the criminal history of the non-citizen and the risk of that person reoffending. The focus of the decision-maker, when undertaking this weighing exercise, remains focused on the best interests of the Australian community.
The Tribunal concludes that although the Applicant was guilty of a serious breach of its expectations when he committed a sexual crime against a minor child, and engaged in low-level acts of family violence for a limited period of time; nonetheless, the Applicant does not pose a risk to the Australian community, and, in fact, contributes to the community through his work and his exemplary behaviour as a father and a member of the community.
For the reasons outlined above, the Tribunal finds that Primary Consideration 4 is of neutral weight.
OTHER CONSIDERATIONS
Introduction
Section 9 contains a non-exhaustive list of other considerations, which include:
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i) strength, nature and duration of ties to Australia; and
(ii) impact on Australian business interests.
International non-refoulement obligations
The Applicant has not made any claims with respect to Australia’s non-refoulment obligations, and the evidence presented does not disclose the existence of such obligations – Exhibit 5 G9 p. 94.
In these circumstances, the Tribunal finds that this Consideration is not relevant and is of neutral weight.
Extent of impediments if removed
Introduction
Section 9.2 of the Direction provides that a decision-maker must take into account the extent of any impediments that a non-citizen may face if removed from Australia to (in this case) Italy, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Italy) 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 the non-citizen in that country.
Age and health
The Applicant was born in December 1974 and is currently 47 years of age – Exhibit 5 G8 p. 63. The Tribunal is not aware that the Applicant suffers from any diagnosed medical or psychological conditions – Exhibit 5 G8 p. 74. It is the case that, in the months leading up to the making of the Protection Order, the Applicant was behaving in an obsessive and delusional manner and Ms Barone held fears for his well-being. However, following the making of the Protection Order, he appears to have recovered, and there is no contemporary material before the Tribunal that indicates that he has any mental health issues. Nonetheless, the Tribunal observed that, at the Hearing, the Applicant appeared to be extremely stressed and looked unwell.
Mr La Perna, a friend of the Applicant for the past five years, made these observations about his current mental health – Exhibit 2:
“5. I am aware that his visa has been cancelled and that he is waiting for his case to be heard in the Administrative Appeals Tribunal.
6. I notice lately that he has become even quieter and pensive. He told me that he is preoccupied with the outcome of his appeal. He feels that he would have no reason to live if he were to be sent away from his two daughters. I am worried about him.”
In short, the Applicant is still relatively young, and the Tribunal has not been presented with any professional medical evidence that he is suffering from any diagnosed physical or mental ailments. He has worked in the agricultural industry since arriving in Australia, and from the Tribunal’s observations of him when giving evidence in Brisbane, he appeared to be in good physical condition. From an age and medical perspective then, there are no prima facie impediments that the Applicant faces if he were to return to Sicily.
Language and cultural barriers
The Applicant has lived in Australia on a permanent basis for more than two decades. He is used to the Australian culture and would, prima facie, experience some difficulties re-integrating into the Sicilian culture; at least, in the short-term.
Conversely, the Applicant has visited Italy on a regular basis since he first arrived in Australia. As previously observed, the Applicant and Ms Barone used to visit Italy on a yearly basis with their children and visit their extended families – Exhibit 5 G12 p. 123.
The Applicant speaks both the Italian language, as well the Sicilian dialect of the Italian language. He was born in Sicily and spent the first 23 years of his life in Italy.
In terms of language and culture, there is no evidence before the Tribunal that he would suffer significant barriers or impediments to re-integrating into Italian society in the medium term.
Social, medical and/or economic support
It is not disputed that the Applicant’s father and mother are still alive and living in Sicily and that he has maintained regular contact with them. Further, his brother and sister live in Sicily, as do other members of his extended family – Exhibit 5 G8 p. 71.
The Applicant expressed some concerns about what would happen to him if he were forced to return to Sicily – Exhibit 5 G8 p. 75:
“It will be very difficult for me to find work – I will have to get my parents’ support. They are now old and cannot help me financially or physically.”
These concerns were also re-iterated by Mr Lanza – SBA p. 31:
“He has his parents living in Italy however, the father is over 80 years old and now retired. Securing employment there would be extremely hard and his parents could not afford to support him financially. His life will be miserable as he will miss his children and will find it hard to have any meaningful father-daughter relationship if he is in Italy and they are in Australia.
Overall, I respectfully submit that the Applicant would suffer significant hardship if he were returned to Italy, which weighs in favor of non-cancellation of the visa.”
The Applicant, in response to a question in the Personal Circumstances Form asking if there were any other problems he would face if he had to return to Italy, said – Exhibit 5 G8 p. 75:
“I will cry for years because I will not have the children near me.”
The Tribunal agrees with the following submissions of the Minister – Exhibit 3 p. 12 para 43:
(a) the Applicant has previously worked in Italy, including on his grandfather’s farm and commenced a carpentry trade;
(b) the Applicant’s lengthy employment in agriculture in Australia would assist in finding employment in Sicily;
(c) the Applicant has a family network that would offer him support, though it would likely to be of a non-financial nature; and
(d) as an Italian citizen, the Applicant would have the same access to social, medical and other economic support as fellow Italian citizens.
The Minister also conceded that the Applicant would be likely to face initial difficulty in re-establishing himself in Italy due to his long-term residence in Australia, but any impediments would be minimal and short-term – Exhibit 3 p. 12 para 44.
The Applicant has lived in Australia for an extended period of time and, although he has returned to Italy for family visits, it is tolerably clear that he has formed a close affinity and love of Australia and the Australian way of living.
The Applicant’s parents are elderly, and it is not clear what support he would obtain from other members of his family. Moreover, the Tribunal has no information before it on the state of the Sicilian economy, and, in particular, the agricultural sector.
The biggest impediment to the Applicant re-integrating into Italian society would be the emotional problems that he would face having been removed from his children. It is tolerably clear to the Tribunal that the ordinary difficulties the Applicant would face in attempting to fit back into Sicilian society after an absence of two decades would be compounded by the mental anguish he would be suffering having been removed from his two children.
In conclusion, the Tribunal notes the following observations of Dr Hatzipetrou in his report of 21 October 2020 – Exhibit 5 G12 p. 120:
“When pressed about the potential cancellation of his Visa, Mr Musumeci was overtly distraught and feared the potential impact of this decision. Mr Musumeci claimed the cancellation of the Visa would ‘kill [his] life’ as he referred to the adverse outcomes associated with disconnecting from his children, friends and community connections. Mr Musumeci referred to a sense of ‘devastation’ when ruminating about the potential separation from his children and, more so, the fear of returning to Italy. Specifically, Mr Musumeci noted that he would not adjust to the lifestyle in Italy after establishing his adult life in Mareeba over the past twenty years. Moreover, Mr Musumeci claimed there were no work opportunities or friendships established in Sicily. Mr Musumeci noted his family and former friends had a different lifestyle. Furthermore, Mr Musumeci noted the supportive friendship that he had with his former wife and co-parenting would be affected by the cancellation of his Visa.”
The Tribunal has formed the opinion that there would be some significant impediments faced by the Applicant if he were removed from Australia.
Conclusion
Overall, the Tribunal finds that this Consideration weighs in the Applicant’s favour and the Tribunal ascribes it moderate weight.
Impact on victims
The Tribunal has not been presented with any information concerning the impact of the visa cancellation on the child complainant and members of her family.
After the child complainant’s mother was informed of the commission of a sexual offence by the Applicant, he was asked to immediately move out of the family home – Exhibit 5 G6 pp. 52 – 53. There is no evidence before the Tribunal that the Applicant had any further social contact with the family, other than that the child complainant continued to write letters to him.
In these circumstances, the Tribunal ascribes neutral weight to this Consideration.
Links to the Australian community
9.4.1 Strength, nature and duration of ties to Australia
Subsection 9.4.1(1) requires decision-makers to consider any impact of the decision on the non-citizen’s immediate Australian family members, where those family members are Australian citizens, permanent residents or have a right to remain in Australia indefinitely.
It will be noted that this Consideration limits the focus of the inquiry to family members who have a right to reside in Australia indefinitely, whether by virtue of citizenship or other legal status.
Ms Barone is an Australian citizen, and her two daughters were born in Australia, and, accordingly, have Australian citizenship.
It is clear from the material before the Tribunal that the removal of the Applicant from Australia will have immediate and long-term detrimental impacts on Ms Barone and their two children.
The Applicant and Ms Barone have an extremely good relationship and the Applicant is a loving father of his children. The reports of Ms Woodcock highlight the emotional damage that would be suffered by the Applicant’s daughters if he was removed from Australia. As Mr La Perna highlighted in his Statutory Declaration of 3 August 2022 – Exhibit 2:
“…Both Vincenzo and Graziella have done a great job at keeping the family together even though they are now divorced. They both have kept Vincenzo’s current situation from the two girls. They are unaware of his hearing and the possible consequences.”
As caring parents, the Applicant and Ms Barone have not told their children that the Applicant is at risk of being deported and, accordingly, they remain in blissful ignorance of these proceedings. No doubt, if they had been told and comprehended the magnitude of the revocation decision, they would be extremely distressed.
One friend of the family, Ms Nucci, in a Statutory Declaration of 11 May 2021, deposed – Exhibit 5 G11 p. 115:
“I am writing this Statutory Declaration in support of Enzo. I am told he may have his visa cancelled because of his prior conviction. I hope that will not happen because it would be devastating for their daughters.”
Apart from the Applicant sharing a parental role in bringing up his children, he also assists by providing financial assistance. At the Hearing, Ms Barone gave the following testimony – Tr. 8.8.2022 p. 36:
“What financial support does Mr Musumeci give you?---Enzo pass me the kids’ support by Centrelink as well and he help me to get, you know, whatever the kids want, like, dancing, sport, gymnastic, clothes, whatever the kids love to do.
Does he give you money every week?‑‑‑He give me money every month.
Every month?---Plus extra money to support me on the sports and, you know, whatever we decide for kids because everything we decide, it’s a such together decision.
So how much financial support each month would he give you approximately?---He give me $500 with Centrelink, I think it’s around four hundred and something, and eighty-nine, something like that. And plus extra money, probably I would say 800.
$800 a month you get from him?‑‑‑Yes.
Thank you. That’s from Mr Musumeci?‑‑‑Yes.”
Ms Barone went on to testify that her “kids just can’t survive without” the Applicant – Tr. 8.8.2022 p. 36.
The Delegate, in the reviewable decision, found that the Applicant’s immediate Australian family “would experience emotional, practical, financial hardship” if the Applicant were removed from Australia – Exhibit 5 G3 p. 34.
The Tribunal agrees with this finding. It comports with the evidence presented. In summary, the uncontested evidence illustrates:
(a) the Applicant and Ms Barone have developed a mature and strong bond;
(b) the Applicant is a loving father to his children;
(c) the Applicant visits his children on a weekly basis and interacts positively with them;
(d) the children love their father and look forward to his visits;
(e) the Applicant provides emotional, financial and practical support to Ms Barone and their children;
(f) the removal of the Applicant from Australia would have deleterious consequences for both Ms Barone and her two daughters; and
(g) the psychological damage the children would suffer if the Applicant is removed from Australia is impossible to ascertain at this juncture, but it likely to be severe and will negatively impact them throughout their lives.
Subsection 9.4.1(2) requires a decision-maker to consider the strength, nature and duration of any other ties to the Australian community, with regard being had to the following:
“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 the 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.”
The Applicant has been permanently residing in Australia for approximately two decades, and first arrived in Australia when he was 23 years of age (1998).
The only offence committed by the Applicant occurred between 19 June 2007 and 12 October 2007 when the Applicant was 32 years of age (he was born in December 1974) – Exhibit 5 G6 p. 54, G8 p. 63.

In short, the offence occurred nine years after the Applicant first visited Australia (May 1998), and four years after he commenced permanently residing in Australia (March 2003) – Exhibit 3 p. 1 para 3. The Applicant, accordingly, did not start offending soon after residing in Australia, and the carnal knowledge offence is the only time that he has been charged with a criminal offence.
The many references given in the Applicant’s favour, as well as the various persons who testified, all point to the Applicant being a person who gives willingly to the community and who has a good circle of friends.
Ms Nucci provided the following information about the Applicant, who she has known for approximately three years – Exhibit 5 G11 p.115:
“…He is a very nice man. He is always kind to every body and willing to help. I can see he helps the elderly couple with whom Grace lives with in Tinaroo, Mr and Mrs Magnaghi. He has done some tiling and carpentry at their property.”
Mr Girgenti, who has known the Applicant since he first arrived in Australia in 1998, made the following observations about his community spirit – Exhibit 5 G11 p. 106:
“4. He is a true gentleman. He is always willing to land [sic] a hand to anybody in need. He is quite a handyman and is always willing to share his knowledge with anyone asking for advice. He does all that without ever asking or wanting any recompense.”
Mr Magnaghi, whose house is shared with Ms Barone and her children, made these comments about the Applicant, whom he has known for more than five years – Exhibit 5 G11 p. 103:
“6. Enzo is a good man. He always help us with fixing things around our house. He never asks for any payment. He does it because he has a good heart and he genuinely wants to help.”
Another friend of the Applicant, Mr La Perna, deposed as follows – Exhibit 2:
“3. The best way I could describe him is as a gentle person who is always willing to lend a hand to anyone that would ask for help.”
The evidence before the Tribunal suggests that the Applicant has a broad circle of friends and work associates, and he is held in high regard as a decent human being and a person willing to help anyone in need. In short, the Applicant positively contributes to the Australian community and he has strong, enduring and positive ties with Australian citizens and non-citizens in the Mareeba region with whom he associates.
So far as the impact of the visa cancellation decision on the Applicant’s immediate Australian family members and the broader Australian community, the Tribunal finds that these matters weigh heavily in favour of revocation of the visa cancellation decision.
9.4.2 Impact on Australian business interests
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Attention must first be given to the word “generally” in s 9.4.2. This suggests to the Tribunal that while the focus of this paragraph is on major projects and important services, nonetheless other business interests may be taken into account if the removal of a person from Australia may have, for example, a deleterious impact on that business with consequent economic implications for (in this instance) a local economy. Each matter has its own factual matrix, but this paragraph is seemingly worded to ensure that decision-makers are given the charter to consider the economic implications of deportations, which implications may be relatively small, but nonetheless could be catastrophic to a particular business and the local economy it serves.
The Tribunal has the benefit of receiving both written and oral evidence from Mr Giovanni Ravanello who, with his father, is the owner/operator of “Gunnado Farm”.
Gunnado Farm comprises a total of 500 acres under cultivation. Crops include avocados, lychees, pumpkins, sugar cane and hay. Throughout the year the workforce ranges from five persons up to approximately 25 – Exhibit 5 G11 p. 110.
In his Statutory Declaration of 13 November 2020, Mr Ravanello deposed that the Applicant, at that time, had been working on the family farm for the past 17 years. Mr Ravanello deposed as follows – Exhibit 5 G11 p. 104:
“2. In that time Enzo has always been a very hard working, reliable and trustworthy person.
3.Enzo is effectively the Second in Command and as such plays an important role in its day to day management. He can be trusted to organize staff rosters, train and teach them, maintain all sorts of machinery and of course make decisions on his [own] in the best interest of the farm.
4.Enzo and my father often discuss farming matters. Both of them coming from Italy, it makes it easier for my father to explain himself.”
In a subsequent undated statement, Mr Ravanello added the following information – Exhibit 5 G11 p. 110:
“He plays an important role in the day to day operations of the farm. He organizes rosters, he hires and trains staff, maintains machinery, he supervises tree injections etc. He is an indispensable part of our operations.
Should his visa be cancelled and therefore forced to leave us, it will result in a huge detriment to us. There is no doubt that our business will suffer as it will be highly unlikely that we will be able to find a replacement for him. As far as we can see he is indispensable to our business.”
At the Hearing, the following exchange occurred between Mr Lanza and Mr Ravanello – Tr. 8.8.2022 p. 66:
“How difficult would it be to find a replacement?---To find managers in farming is…difficult. I know other people who have been looking for years to find managers.
And your farm is 550 acres, all under cultivation?---Yes.
So his absence would cause disruption in the production of those 550 acres, is that right?---Yes, it would.”
The Minister made the following submission – Exhibit 3 p. 13 para 49:
“…Although the owner of Gunnado Farm states that it is ‘highly unlikely’ that they will be able to find a replacement for the applicant, notably, there is no evidence as to whether the Farm had advertised for the position, what skills are involved, and what the Farm has done since the applicant’s visa was cancelled. Given the lack of evidence, the Minister contends that the impact on Australian business interests should be given no weight.”
The Minister’s submission was made before Mr Ravanello gave his testimony, and it was tolerably clear to the Tribunal that the Applicant is uniquely able to undertake a managerial role on Gunnado Farm due to:
(a) his ability to fluently converse with Mr Ravanello’s father in Italian;
(b) his experience of having worked on the farm for almost 20 years;
(c) his ability to maintain machinery;
(d) his capacity to hire and train staff; and
(e) his intimate knowledge of the crops grown, including supervision of tree injections etc.
Mr Ravanello testified that obtaining the services of an experienced manager in the sphere of agriculture that pertains to Gunnado Farm is very difficult.
The Tribunal, therefore, proceeds on the basis that Gunnado Farm is a relatively large enterprise, employing up to 25 employees in any given year, and is an important part of the economy of the Mareeba region. The Tribunal also proceeds on the assumption that the removal of the Applicant from Australia would have a negative impact on, and seriously comprise, the efficient operation of, Gunnado Farm.
The Tribunal finds that so far as the impact on Australian business interests is concerned, this weighs in favour of the revocation of the cancellation of the Applicant’s visa.
Conclusion
Having considered all of the matters in s 9.4.1 and 9.4.2, the Tribunal concludes that, overall, this Consideration weighs in heavily in favour of the revocation of the cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal makes the following findings:
(a) Primary Consideration 1 weighs moderately in favour of non-revocation;
(b) Primary Consideration 2 is of neutral weight;
(c) Primary Consideration 3 weighs heavily in favour of revocation;
(d) Primary Consideration 4 is of neutral weight;
(e) Other Considerations – International non-refoulement obligations is of neutral weight;
(f) Other Considerations – Extent of impediments if removed weighs moderately in favour of revocation;
(g) Other Considerations – Impact on victims is of neutral weight; and
(h) Other Considerations – Links to the Australian community weighs heavily in favour of revocation.
The factual matrix in this matter is unusual, if not, unique. The Applicant was charged with a sexual offence involving a minor. In most instances, this would count very heavily against a person. However, as explained at length above, the particular circumstances of the crime were such that the sentencing Magistrate determined not to give a custodial sentence, and, in fact, did not record a conviction. The reasons for this quite unusual result are explained above and do not require repetition.
The only other time that the Applicant came to the attention of the Police was when his then wife sought their assistance to prevent him engaging in unacceptable behaviour because of his jealousy and unstable mental state.
As with the sexual crime, the instances of family violence actually involved no acts of violence or threatened violence.
The Tribunal accepts that the Applicant is truly remorseful for both the carnal knowledge against a child offence, as well as his acts of family violence.
The Tribunal, when weighing up the various Considerations, places the health and safety of members of the Australian community at the apex. It is with this is mind, that the following comments are made.
Since arriving in Australia in 1998, the Applicant has been continuously in gainful employment. He has been a hard-working and useful member of the community. His good deeds and decency have been the subject of comments in numerous Statutory Declarations. It is sometimes the case that a letter or Statutory Declaration in support of a person can be given little weight because the writer or deponent has known the person for a short period of time or does not know key information that may otherwise change their opinion.
In this matter, almost all of the persons who have provided statements or Statutory Declarations in favour of the Applicant also gave testimony and subjected themselves to cross-examination. All of the persons had some knowledge that the Applicant had committed a sexual offence, and whilst most did not know all of the details, they were still prepared to speak in favour of the Applicant.
The witnesses who were called and gave evidence were all credible, and all appeared to the Tribunal to be ordinary persons giving honest and heartfelt testimony. In every instance, they spoke highly of the Applicant as a friend, father and member of the community.
Ms Barone, Mr Coppo and Mr La Perna travelled from Mareeba to Brisbane to give evidence and to support the Applicant. The Tribunal then had the added benefit of observing each of these persons give evidence in-person. Each of them were witnesses of credit.
This matter is also unique in that, although the Applicant and Ms Barone have divorced, they remain on the best of terms and clearly have a close and positive relationship. Both put the interests of their children at the pinnacle of considerations.
In her Statutory Declaration of 16 July 2022, Ms Barone made the following plea – Exhibit 2:
“7. Many years ago, Vincenzo committed a criminal offence for which he was sentenced and punished by a Judge. He has paid his debt to society. Society has forgiven him. I have forgiven him. Why can’t the Immigration Minister forgive him? Why does he still owe a debt to the Minister? This is the question that I continuously ask myself, but I am unable to find in my head a reply that would make sense.”
The evidence presented satisfies the Tribunal that the removal of the Applicant from Australia would have a deleterious impact on Ms Barone. She relies on the Applicant for emotional, practical and financial support.
Importantly, the removal of the Applicant from Australia would deprive his two young daughters of a father that they love and, based on Ms Woodcock’s reports, could result in them being emotionally damaged for life.
Next, the Applicant is a useful member of the community, and his deportation would deprive Gunnado Farm of a valued employee and manager, and the broader Mareeba community of a person who has integrated into that community and plays a positive role for that community.
There is no evidence that the Applicant poses a risk to society. On the contrary, his removal from Australia would have an extremely negative impact on his family and would be loss to the Mareeba community.
The Applicant is guilty of a major lapse of judgment for a very short period of time in 2007, and of stupid behaviour for a few months up to the making of the consent Protection Order.
The Applicant does not have an extensive criminal history, and, on the contrary, has been, on the whole, a quiet achiever and solid hard-working member of the community.
The Tribunal is satisfied that the damage that would be inflicted on the Applicant’s children and ex-wife by his removal of Australia far outweighs any residual concerns about his offence in 2007 and his behaviour in the lead up to the Protection Order. This conclusion is reached because, apart from the best interests of minor children, the Tribunal accepts Dr Hatzipetrou’s assessment that the Applicant poses a low risk of reoffending
The Tribunal is satisfied that the health and safety of members of the Australian community would not be compromised by the Applicant remaining in Australia.
After considering all of the Considerations and giving them due weight, I have decided:
(a)the best interests of minor children;
(b)extent of impediments if removed; and
(c)links to the Australian community;
cumulatively weigh in favour of revocation, and those Considerations outweigh considerably the Consideration in favour of non-revocation.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that the cancellation of Mr Musumeci’s Class BW Subclass 857 Regional Sponsored Migration visa is revoked.

I certify that the preceding 442 (four hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..............[SGD]......................................
Associate
Dated: 02/09/2022

Dates of Hearing:

Date Final Submission Received:

8 and 9 August 2022

19 August 2022

Applicant:

Representative for the Applicant:

In-person

Mr Frank Lanza
Lanza Legal

Representative for the Respondent:

Ms Elle Tattersall
Sparke Helmore Lawyers