Neil Hembrow and Minister for Immigration and Border Protection - [2013] AATA 827

[2013] AATA 827

Division General Administrative Division

File Number

2013/4462

Re

Neil Hembrow

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 22 November 2013

Place Perth
The decision under review is affirmed.
...........................[sgd]..............................
S D Hotop

Deputy President

CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a citizen of United Kingdom – applicant has lived in Australia from 2005 when aged 22 years – applicant convicted of sexual offences against child aged between 13 and 16 in 2011 – applicant sentenced to 2 years’ imprisonment – applicant does not pass character test – discretion to cancel visa – primary consideration of protection of Australian community outweighs other relevant primary consideration of applicant’s ties to Australia and other relevant considerations – risk of future serious harm to Australian community by applicant unacceptable – preferable decision is that visa be cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 501(2)
Direction no 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President S D Hotop
22 November 2013
Introduction

Neil Hembrow (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”), dated 26 August 2013, cancelling his Class BS Subclass 801 (permanent) spouse visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
The applicant was born in June 1983 in Wales and is a citizen of the United Kingdom.
The applicant first arrived in Australia on 20 November 2001 and he departed Australia on 21 February 2002. He returned to Australia on 4 October 2005 on a tourist visa, was subsequently granted a Subclass 820 (provisional) spouse visa on 9 November 2006, and was granted the visa on 17 March 2009. Since his return to Australia on 4 October 2005, the applicant has continuously resided in Australia, and was outside Australia for periods of between one and three weeks each year up to November 2010. He has not since departed Australia.
On 30 September 2011 the applicant, following his conviction of three counts of sexually penetrating a child over the age of 13 years and under the age of 16 years, was sentenced by Deane DCJ in the District Court of Western Australia to 2 years’ imprisonment on each count, to be served concurrently. He was made eligible for parole.
On 26 August 2013 a delegate of the respondent cancelled the visa under s 501(2) of the Act.
The Relevant Legislation
Section 501(2) of the Act provides:
“ The Minister 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 “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.
Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:
“ 6.2     General Guidance
(1)   The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”
The principles referred to in para 6.2 are set out in para 6.3 as follows:
“ 6.3     Principles
(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)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:
“ 7 How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
(b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
8Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.”
Part A (comprising paras 9 and 10) then refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to cancel a visa under s 501(2) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G20, pp 1–148) lodged by the respondent on 23 September 2013 (Exhibit R1);
·the applicant’s witness statement, dated 28 October 2013 (Exhibit A1);
·witness statement of Sarah Louise Hembrow, dated 23 October 2013 (Exhibit A2);
·statement of Reverend Graham Wright, dated 26 October 2013 (Exhibit A3);
·statement of Reverend John Meagher,dated 26 October 2013 (Exhibit A4);
·statement of David Bickley, dated 5 November 2013 (an unsigned copy of which was served on the respondent on 4 November 2013) (Exhibit A5); and
·the oral evidence of the applicant and of Sarah Louise Hembrow.
The Applicant’s Criminal Record
The applicant’s recorded criminal history in Australia comprises the three offences referred to in paragraph 4 above, and the following offences:
·three offences of stealing as a servant, and two offences of gaining a benefit by fraud, of which he was convicted in the Margaret River Magistrates Court and fined $1,000 on all charges on 9 June 2008. (G 16)
The Sentencing Remarks of deane DCJ
When sentencing the applicant on 30 September 2011 for the three offences referred to in paragraph 4 above, Deane DCJ, in the course of her extensive sentencing remarks, said:
“ Neil Christopher Hembrow, after a five-day trial before a jury on 16 September this year, you were convicted of three counts on an indictment, being counts 14, 15 and 16. Counts 14 and 16 allege that you penetrated the complainant, GM, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with your penis. And count 15 alleged that you sexually penetrated that same complainant by engaging in fellatio. Each of those counts occurred on 14 July 2010 at an address in Yokine where you were living with your wife.
You now come to be sentenced in relation to that offending. It should be noted that at trial you were acquitted of counts 1, 2, 3, 4, 5, 6, 9 and 11 on the indictment. The complainant failed to give evidence relevant to counts 7, 8, 10, 12, 13 and 17 and therefore, those particular charges were the subject of a successful no case submission by your counsel.
It is necessary to refer to the general background against which the offending of which you’ve been convicted occurred. The complainant was born on … August 1994 and so at the time of the offending in question she was about six weeks shy of her 16^th birthday. She moved to WA with her family, being her father and two older brothers, from Tasmania and the family eventually settled in a house in Alexander Heights in 2009. About that time the complainant’s stepmother came to live with the family. The complainant’s natural mother is deceased.
The complainant’s family and, indeed, the complainant herself, were very keen dart players, as were you. That is how you came into contact with the family and, in particular, you became a playing partner of the complainant’s father. The evidence at the trial, both from the complainant and members of her family, including her father, which was also borne out by the evidence of yourself and your wife, was that you became very friendly with the complainant’s family and you actually considered yourself to be part of that family.
The complainant’s father regarded you almost like a brother and you had a similar attitude towards him. In 2009, until March 2010, you were living in Margaret River with your wife, where you ran a business. You were heavily involved in the dart sporting fraternity and you would travel up to Perth often on a Monday to play competitive darts on Monday evening and on occasion you would stay at the complainant’s family home or with your parents-in-law who lived in Perth.
…
When you stayed at the complainant’s family home you would generally sleep in either the front lounge area or in a rear family room area and on some occasions you would sleep in a bedroom of one of the complainant’s brothers, who had left home. At trial, you gave evidence that you did not have a particular friendship with the complainant as such, but you regarded her as part of a family to whom you were close and you did, on occasion, assist the complainant to improve her dart playing skills and, on your recollection, you once obtained information for her in order that she could complete a school project.
The complainant gave evidence as to counts 14, 15 and 16, which she said occurred on a Wednesday, in the morning at your home in Yokine. She was able to place it on Wednesday morning because she said she had attended a darts evening the night before. On that Tuesday evening, the complainant’s evidence was that she was travelling in a motor vehicle with her father and stepmother, as well as you. It would seem that you were all returning from a darts tournament and, indeed, at trial you also gave evidence about that particular evening.
The complainant’s evidence was that whilst you and she were in the motor vehicle you sent her a text message from your phone to her phone, indicating that she should cough if she wanted to go to your house the following day. This was in the context of her allegations that there had been previous sexual contact between you which, of course, is not the subject of any convictions.
However, I refer to it only to place into context why it was that the complainant asserted you sent this particular text message and what presumably was proposed for the following morning; namely, some form of sexual contact between both of you. The complainant’s evidence was that she did not reply to the text message as she had no credit on her phone. Her understanding was, however, that you were suggesting that you could pick her up the following morning from her home and take her to your home.
She said that you then sent her another SMS text and in response she turned and nodded to you, in order to imply or indicate her agreement to the proposal which you had made. After this, she said that you were then dropped off at a home which she thought belonged to your parents but, in fact, it became apparent at trial that it was the home of your parents-in-law, where you were staying that evening.
The complainant then said the following morning you sent her another SMS message after 7 am, indicating that you would pick her up around 7.30 am. At this point in time, according to her, both her father and stepmother were at work. She was unsure where her two brothers were at the time. One of her brothers, she said, may have been at work or he may have had to go to court that day in connection with something to do with his driver’s licence.
…
Relevant to these three charges and convictions, the complainant said that you were waiting for her out the front of her house, in your car, which she described as a black Subaru. She said that you were dressed in a suit and wearing an aqua-coloured tie.
According to her evidence, you drove her to your home, which she estimated was about a five to 10 minute drive away. And you exited the car and both went straight to the bedroom. The complainant said that your wife was not at home at this time. The complainant made no mention of any dog or dogs being at the house. Once in the bedroom, she said that you both undressed and count 14 occurred, when you’ve had sexual intercourse on your bed by you placing your penis in her vagina as she straddled you.
…
Following count 14, the complainant said count 15 occurred, when she performed oral sex on you, by placing your penis in her mouth. She said that you ejaculated into her mouth in the course of that activity.
According to the complainant, you both then fell asleep for a time, and when you awoke she said count 16 occurred, being another act of sexual intercourse between you, where she said that you placed your penis into her vagina when you were leaning over her and her legs were over your shoulders as she lay in the bed.
After count 16 concluded, her evidence was that you each had a shower and dressed before going into the lounge room, where the complainant said you gave her an orange juice. She was unsure what time it was at that point, but estimated it was probably before noon, as her stepmother was coming home around that time and the complainant had to be at home when that occurred.
…
In sentencing you, the court has the benefit of a verbal pre-sentence report, presented to the court last week, in combination with your counsel’s plea in mitigation and a range of references submitted to the court on your behalf. The State has also made submissions in relation to the disposition of this matter, in oral and written form.
The presenter of the pre-sentence report noted that you are currently 28 years of age and you were born in Wales. Before being incarcerated following your convictions, you were living with your wife and her parents at their home in a Perth suburb. The history you gave to the presenter of the pre-sentence report was that the complainant is known to you because you are a friend of her father’s, and you confirmed that you played darts with her father, and that is how you came to know the family and its members.
Prior to these convictions, you believed you had a very good relationship with all members of the complainant’s family, and the complainant herself, describing yourself as being like part of the family. You confirmed that on occasion, when you came up to Perth to play darts in 2009, you would stay at times with the complainant’s family. You denied vehemently the offences of which you’ve been convicted, expressing anger towards the complainant on the basis that she has fabricated the allegations the subject of the offences of which you’ve been convicted.
You advised that you enjoy a stable and – you enjoyed a stable and happy upbringing in Wales, and that your parents remain living together in that country. There was evidence at trial, in fact, that in October 2009, you and your wife returned to Wales to visit your family on holiday. You also said that you have a younger brother with whom you share an excellent relationship.
It would seem that you were avidly involved in various sports throughout your childhood and adolescence, and said that you excelled in rugby and soccer, but later, in particular, cricket, and in fact that culminated in your playing semi-professional cricket between the ages of 16 and 20. You also played for England in the under-19 squad at that time.
Your participation and interest in cricket caused you to come to Australia, initially in 2001, as you were sponsored to play for a Kalgoorlie team, which you did for 12 months before returning to Wales. You then returned to Australia in 2005, as has previously been mentioned, because you were sponsored to play for a cricket team in the Margaret River area. That was how you met your wife, whom you married in 2008.
You advised that you and your wife share a positive relationship, and that has always been the case, although the stress of your current situation has taken a toll on both of you, and no doubt has caused stress within your relationship. It was clear, however, at trial, from your wife’s evidence, and indeed the lengthy letter she has written on your behalf to the court, that she remains extremely supportive of, and fiercely loyal to you, despite this offending and your convictions.
Whilst you have Australian residency, you are not an Australian citizen, and information obtained revealed that there is a possibility, as a result of these convictions, if you receive a term of imprisonment longer than 12 months, you may be deported.
You left school at 17 years of age after completing year 12. You then attended college and obtained a diploma in sports science, although you’ve not used that in an actual employment capacity. The evidence at trial suggests that you have done casual labouring work in the painting and decorating field, as well as casual landscaping work.
In addition, you clearly worked in the business you had with your wife in Margaret River for a period of time. There is no doubt that you have a positive work ethic, and that you are a hard worker, which is to your credit. Most recently, prior to your trial, you were working as a driver for a milk delivery company, but regrettably that employment was terminated due to your current situation.
From a financial perspective, you advise that you and your wife have suffered difficulties because of the cost of being involved in court proceedings, and you are concerned that, pending the outcome of this matter, that may be an ongoing difficulty for your wife.
You do not suffer any particular physical health complaints, but say that you were diagnosed with depression about 12 months ago, for which you’ve been prescribed anti-depressant medication, which you are still taking. It is evident that this diagnosis coincided with the time – in relation to which you were charged with these offences.
To your credit, you do not use illicit substances, but you do consume alcohol and commenced doing so from the age of 19 years. You began playing competitive darts at the age of 20, and that coincided with your alcohol increasing – alcohol consumption increasing over time. Your perception is that this led to a decrease in your physical fitness, which in turn adversely affected your participation in semi-professional cricket playing.
It is only of recent times, however, that you believe your drinking has become problematic, and it increased once you became involved in the court system, because you say you have tended to use alcohol as a coping mechanism. To your credit, you show some insight into this problem, as you advise that you had commenced attending meetings of Alcoholics Anonymous, with a view to addressing this particular problem in your life.
You do not come before the court as a first offender, although as an adult you say you have no convictions in your country of origin. You do have an offending history in Western Australia because in 2008 you were convicted of a fraud related offence or offences of dishonesty.
You advised that this offending occurred when you were working for a hotel in the south-west and you became involved in placing bets through the on-site TAB without paying for them. It would appear at the time that you had an issue with gambling but that has since been rectified and you state that your conviction for those matters was sufficient to deter you from continuing to offend in that way.
Although there is no formal clinical assessment in relation to your personal circumstances, the observations [sic] made that, given your stance of denial, in all likelihood you would be deemed unsuitable at this time to participate in a treatment program such as the Sexual Offender Treatment program. However, there are no factors which would prevent you becoming involved, if you were willing to do so, in programs directed at dealing with your depression and your alcohol use.
A number of positive references have been written on your behalf by family members, friends and former employers. Your wife has written a very lengthy and detailed letter to the court and, clearly, she is very distressed at your convictions. She speaks of the very negative impact upon your life and her life that these charges have had. She advises that since being charged you have struggled with depression and, in fact, have attempted suicide on occasion.
It was recommended that you pursue counselling in relation to your condition but according to your wife you did not have the funds to pay for such intervention. You have lost employment on occasion as you’ve needed to take time off work to attend court appearances. She is concerned at your behaviour, which she believes is an indication of the extreme stress she says she believes that you are and have been under.
She has had a recent tragedy in her own family with the death of one of her brothers and until your incarceration, you and your wife were living with her family, mainly out of financial necessity. Your wife claims that she has known you for a number of years and has always considered you to be a gentleman, with excellent manners, and so she has great difficulty in accepting your convictions in this matter. She speaks of your passionate interest in sports and the fact that you have been welcomed into her family.
You have a seven-year-old son from a former relationship in Wales and you maintain contact with this chid and no doubt support him to a degree, which is to your credit. Your wife continues to assert, as she did at trial, that she does not believe you had the opportunity to commit counts 14, 15 and 16 on the indictment. She maintains her support for you despite your current circumstances and it is clear that she continues to have faith in you.
…
In sentencing you the court is obliged to take into account the gravity of your offending, which is serious, as reflected in the penalty available by way of sentence upon conviction. All matters, both mitigatory and aggravating, relevant to your personal circumstances and those of your offending must also be taken into consideration and given appropriate weight. The need for specific and general deterrents [sic] must be taken into account.
In your case I do not consider that the need for specific deterrents [sic] must be emphasised heavily because, although you have a prior conviction or convictions, they relate to offences of dishonesty and you have not offended in a sexual manner in the past. Essentially, you come before the court in that regard with comparatively positive antecedents. Clearly you have a great deal of family support and support from members of the community who know you well, and these people maintain their support for you despite your current situation.
I accept that the offending of which you have been convicted is very much out of character for you. It is to your credit that you have in the past had a consistent employment record and you have contributed to the community in that way and also through your interest in various sports. You are fortunate to have grown up in a loving and supportive family environment, though no doubt you are concerned at the distress your convictions have caused other people.
You do not have the benefit that pleas of guilty would attract, so it cannot be said that you are remorseful and, in fact, you have continued to deny your guilt in relation to those matters of which you’ve been convicted. It is the case, however, that you cannot and will not be punished for exercising your right to trial by jury.
A very important factor in sentencing for offences of this type is the need for general deterrence. And for this reason, considerable emphasis must be placed on that aspect of the sentencing process. In the context of this type of offending this principle has been the subject of considerable comment and discussion by members of the Court of Appeal in this state in numerous cases.”
[Her Honour then referred to various Court of Appeal authorities in the course of which, referring to the present case, she said:]
“ …
I note in this case, comprehensive written submissions were filed by the State and at para 22 the State accepts that the complainant was a willing party to the sexual activity of which you’ve been convicted. The State acknowledged that they opened their case on that basis and that the complainant in her evidence did not contradict it.
They point out that further, in relation to the issue of consent, a document authored by the complainant dated 14 July 2010, which appears at pages 84 and 85 of the prosecution brief also supports that she was a willing party to the activity in question. Whilst that document does not refer to you by name, the complainant apparently confirmed to the prosecutor that the document related to you, and this was disclosed to your counsel prior to trial.
There is no suggestion that you used any force or applied any measure of pressure to the complainant to engage in sexual activity in question on 14 July 2010. But it is apparent that there was a significant age difference of some 10 years or so between you and the complainant at that point in time, and in that context you did take advantage of the immaturity of the complainant.
…
In this case there is no psychological report but it is evident that you have not offended in this way in the past. And your history, although you had recent difficulties in managing alcohol intake, does not suggest that you have any significant deficits relevant to your social and emotional functioning, save of course for the depression which you are currently suffering from.
…”
[Her Honour concluded her remarks as follows:]
“ In sentencing, each case must be considered on the basis of its individual circumstances, although the general principles of law applicable to sentencing for this type of conduct are relatively clear and well settled.
I do not consider in your case that a community based disposition or fine would be appropriate, as such a sentence would fail to mark the gravity of your offending, and in particular the need for general deterrence.
In my view the only appropriate sentencing disposition to address those matters, and other matters previously canvassed in these remarks, is a term of imprisonment to be imposed.
Having reached that conclusion, it is then necessary to determine whether or not, in all of the circumstances, which include but are not limited to your prospects of and desirability of your rehabilitation, any such sentence or sentences imposed should be suspended, that is, ordered not to be served immediately.
This is almost inevitably a finely balanced decision, and must be carefully considered by the sentencing court, as it has been in this case, taking into account all of those matters mentioned on your behalf by your counsel, and the circumstances of this case.
Notwithstanding your generally positive antecedents and your family support, as well as the prospects of your rehabilitation which are positive, I do not consider that this is a case where any sentence or sentences imposed should be suspended.
Having determined that to be the case, it is also necessary that the totality principle is observed in sentencing, because you are being sentenced for more than one matter, and any sentence imposed should not be so long or crushing as to give you no hope for the future.
Each of these three offences occurred on the same day, within a very short space of time, and in all of the circumstances, I consider that the sentences imposed in each case should be concurrent.
The sentence in relation to each of these counts is one of two years’ imprisonment, making a total sentence of two years’ imprisonment.
There is no reason, in my view, why you should not be considered for eligibility for parole in due course, which means that you must serve half or 12 months of that sentence, before being considered so eligible.
…” (G5, pp 45–48, 54–57, 60, 62, 63, 66–67)
The Applicant’s Evidence

The applicant confirmed that he had signed a statement, dated 28 October 2013, for the purpose of this proceeding and that its contents are true. The applicant’s statement is as follows:
“1. I was born in South Wales in 1983. My parents are Chris and Suzanne Hembrow and they still live in Wales, in the Uniting [sic] Kingdom.
2.I was educated in the United Kingdom to leaving age at high school level, and I lived with my family through my schooling.
3.Following school, I attended college and obtained a Diploma in Sports Science. I have not used this qualification in any employment since.
4.I was a skilled cricketer and footballer during my school years, and I played cricket for my local club. I was offered a contract in 2003 with my county club, the Morgan Cricket Club which is a professional club playing first class cricket.
5.In Wales I also engaged in competitive darts, with considerable success.
6.I had a relationship with [JF] and in 2004 we had a son, [D]. I have supported [D] since his birth, and his mother and I separated shortly after his birth. He is currently living with his mother in Wales. I looked after him for a year.
7.I first came to Western Australia in 2001 where I played cricket with the Hannan’s Club in Kalgoorlie.
8.I came to Australia again in October 2005 where I was looking at being engaged by the Margaret River Cricket Club as their overseas professional.
9.I went to Margaret River and met people at the club, but this did not occur.
10.At a night out with the club players I met Sarah Brennan, who is now my wife. We hit it off straight away and shortly after began dating.
11.My life changed dramatically after I met Sarah. We agreed that we were going to get married, and then went through some months of dealing with the immigration authorities.
12.As a result of what the immigration authorities told me to allow me to stay in Australia with Sarah, we got married in Australia on 8 June 2006 in a low key ceremony. We had agreed that we were going to get married anyway but had not intended to marry this soon. This first marriage ceremony was a small affair with a celebrant and a few close friends.
13.We agreed that we would get married ‘properly’ at a ceremony with the entire family and friends, and on 2 February 2008 we were married. My family attended from Wales and Sarah’s family attended, including her sister from America.
14.When I came to Margaret River in 2005 I began working as a labourer. I worked in various labouring jobs including for the local council. In 2010, I worked as a landscaping labourer for David Bickley.
15.When I first came to Margaret River my wife was working as a manager at the Dome Café. In 2008 we brought [sic] a share in the business. At that stage I was working for the local shire in road maintenance and was still playing cricket for the Margaret River club but not on a professional basis.
16.In 2009 my wife Sarah fell pregnant. In Christmas 2009 my wife had a miscarriage. It is our intention to have children and make a family.
17.In 2009, due to the stress of the business where my wife was working 12 hour shifts 6 days a week we decided to sell our share in the business. This was done and we moved to Perth in 2010. We did so, so we could start a family together.
18.In Margaret River I was playing darts, and was selected for the West Australian team to play at the Australian Championships in Brisbane.
19.I went to a darts tournament in the UK and was very successful there.
20.I was charged in 2010 with some 17 counts in relation to allegations made against me by a girl that I had sexual intercourse with her and she was under 16 at the time. At my trial in 2011 in September I was convicted of three counts, being acquitted of all other counts, some being subject of successful no case submissions.
21.I pleaded not guilty to these offences. Upon my conviction I appealed the conviction and was unsuccessful in that appeal.
22.The costs of my representation at the criminal trial were considerable, in excess of some $60,000. Much of this money was loaned from family and friends, particularly from my wife’s mother and father. They had loaned us money in relation to losses incurred by the sale of the Dome business in Margaret River.
23.I understand from my wife that we are indebted to her parents in an amount of approximately $60,000. We have other debts amounting to $100,000 or so.
24.I was sentenced to two years imprisonment. I was originally imprisoned at Hakea Prison, then at Acacia and Casuarina Prison.
25.I was unable to complete any of the sex offender courses in prison. I was told that these courses, except for one, require the offender to admit the offence which I was not prepared to do as I did no [sic] commit the offences for which I was charged and convicted.
26.I am told that there is a ‘deniers’ course, and that was to address offending tendencies. I did not do that course as I did not consider myself to be an offender.
27.I cannot say that I am remorseful for the offences, as I did not commit them.
28.I behaved myself in prison, and received one prison charge. I had some difficulties with inmates, who were aggressive and sometimes abusive towards me. I sometimes had words with them. I was charged in relation to one matter when two men came into my cell and roughed me up.
29.I met the prison Chaplain Graham Wright during my time in prison, and enjoyed his support and counsel during my time in prison. He supported me with the difficulties of prison life and with my anguish at being in prison.
30.I talked to Graham about my marriage from time to time, and he counselled me on this.
31.I was not granted parole and upon my release from prison was detained at the Immigration Detention Centre, where I still am.
32.My marriage has continued through this difficult period since I was charged, and my wife has supported me. She has continued our relationship by visiting me in prison, writing to me and talking to me on the telephone.
33.I remain committed to my marriage, and wish to stay with my wife. We wish to have a family together, and to make our life together.
34.I have not worked in the UK since I left in 2005 and I am not aware of the state of the job market there. I have no formal job qualifications, and would not be likely to achieve skilled employment.
35.My physical health is good, and I have no ongoing illnesses. I have had some mental health difficulties since I was charged in 2010, and have received some medication for depression. I continue to take that medication.
36.I was convicted in 2008 of some offences in relation to placing bets on the TAB at a hotel that I was working at, which I did not pay for. I had a gambling problem at the time, and these bets were made in an attempt to mitigate loses [sic]. I pleaded guilty to these offences, and have not committed any further offences of that type, or at all.
37.I have had a drinking problem since I was young in Wales, and this had continued while I was in Australia. I had shown initial promise in my sporting career, but I think that this drinking has had its effect both physically and in my commitment in developing my sporting prowess.
38.My imprisonment has, of course, stopped me drinking and I now understand that this can cause problems. Upon my release, it is my intention not to drink at all.
39.It is my intention upon my release to gain work, and I have been promised work to me by a former employer, namely David Bickley. I used to work for him in landscaping and he has told me that I can work for him when I am released.
40.It is also my intention to get a house with my wife, so that we may continue our relationship and live together.
41.I am committed to Australia, and notwithstanding what has happened I do appreciate this country.
42.I would not offend in any way again, at all. I have seen the misery that it causes and I would not like to put my wife and family through it again.” (Exhibit A1)
In cross-examination the applicant gave evidence to the following effect:
·most of the members of his immediate family continue to live in the United Kingdom (“UK”), namely, his parents, a brother, and a son (who is 9 years old);
·if he were returned to the UK, he would have “plenty of difficulties” – a lot of his friends would have moved on and, although he would have the support of his parents “to a degree”, they would not be able to find work for him or pay his bills;
·he has a good relationship with his parents and they would give him support;
·when he committed the stealing and fraud offences in 2008 he had a “gambling problem” for which he subsequently obtained counselling, and he repaid the money to the owner of the hotel;
·he is “absolutely” not responsible for the sexual penetration offences of which he was convicted in 2011 – those offences “did not happen”;
·because those offences did not happen, he has no remorse in relation to them;
·he was never ordered to undertake rehabilitation courses in prison and, although the Sex Offending Denier’s Program was offered to him, he did not undertake that course because it had been explained to him that its purpose was to enable acceptance of guilt and then to lead to the Sex Offenders course; also, he could not have been booked for that course because he had appealed against his convictions;
·he was denied parole because of his denial of guilt;
·while in Acacia prison he was charged with fighting in March 2012 when he was defending himself against two prisoners who came into his cell after learning what he was in prison for and started fighting him;
·he was released from prison in September 2013 and was then placed in immigration detention;
·prior to being imprisoned he visited the UK each year and spent time with his son;
·he used to have telephone contact with his son every week but that became more difficult when he went to prison;
·he has an amicable relationship with his son’s mother;
·if he were returned to the UK, having greater contact with his son “would be a priority”;
·his parents in Wales would support him by providing accommodation for him;
·his wife has met his son and family members and has a good relationship with them;
·when he was in Margaret River he worked for the Council doing road maintenance, and later worked as a kitchen hand in their café; he also did milk deliveries in Fremantle and meat deliveries in Perth;
·he wants to get back his truck driver’s licence because that would open up opportunities for him to work at mine sites;
·he and his wife have debts of $50,000 to the bank and $60,000 to her parents, and it would be impossible for them to pay off those debts and their bills if they were living in the UK;
·his wife is Australian and her family are in Australia – “why should she be kicked out of Australia?”
In re-examination the applicant said that he was refused parole partly because he had not done any prison rehabilitation courses. He said that he had been informed that doing those courses would increase his chances of getting parole but he was not going to admit guilt for something he had not done. As regards possible employment in the UK, the applicant said that he would have to take “any job that came along” and that, in the medium term, he would “try and get back on the road crew, laying bitumen”, which he had done before leaving the UK.
The Evidence of Sarah Louise Hembrow
Ms Hembrow confirmed that she had signed a statement, dated 23 October 2013, for the purpose of this proceeding, and that its contents are true. Ms Hembrow’s statement is as follows:
“ 1. I am married to Neil Hembrow. We were married on 2 February 2008.
2.I first met Neil on 5 October 2005, in Margaret River. Neil had come to Australia from Wales and was staying with friends of mine playing cricket.
3.Once we met we started dating and it was not long before I decided that I wanted to marry Neil.
4.We became engaged and contacted immigration regarding our plans to marry. We had planned later but immigration informed us that we needed to be wed sooner so that we could apply for a spouse visa for Neil. We were married on 8 June 2006. We had our second ceremony in 2008 for family coming from Wales and my family from country WA and America.
5.From 2006 we lived in Margaret River. We had brought [sic] into a business, Dome Café, that I was managing. Neil worked for the business as well and did other work in town. He worked for the Shire as well as labouring for a plasterer.
6.Because of the seasonal nature of the work in Margaret River Neil had to move to Perth for a while to help financially.
7.While we were in Margaret River Neil played cricket and darts for the town. He was a very accomplished dart player and was involved with darts most nights of the week.
8.Neil played for the State of Western Australia while we were in Margaret River, and attended the world championship in Hull England in December 2010 and was ranked 23 in the world.
9.Our marriage was good and we got on well with each other. In October 2009 I fell pregnant, and my brother’s health was deteriorating quickly due to his congenital heart problems. We decided to sell our share of the Dome Café in Margaret River to move to Perth to be with my family.
10.I miscarried in late February 2010. This had a distressing effect on myself and Neil and we supported each other with the help of our family through this tough time.
11.My brother died in June 2011. This was just before Neil’s trial.
12.In October 2010 Neil was charged with the offences for which he was later convicted.
13.We arranged representation for Neil with a legal practitioner, … This cost us a considerable amount of money, ultimately in excess of some $60,000. We did not have this money, and have borrowed it from family and friends.
14.I still owe money to family and friends including some $60,000 that I owe to my mother and father in relation to the money they lent us for Neil’s defence, and in relation to a business loan for the Margaret River business.
15.Neil was convicted at his trial in the District Court in September 2011, and was sentenced to two years imprisonment. He served the full term, and since he was released from prison had [sic] been held at the Perth IDC pending deportation.
16.Neil and I have maintained our relationship as husband and wife all of this time. I have visited Neil in prison, and supported him through this very difficult time. I consider our relationship as continuing, notwithstanding that Neil has not been able to be with me.
17.During this time I have lived with my mother and father, for financial reasons. I am not able to provide for a separate residence, given the expenses that we have incurred and the debts that I still have.
18.I currently work as a restaurant manager for … Restaurant in Inglewood. I manage the whole of the restaurant, dealing with staffing, day to day running of the restaurant and financial matters. I have worked in restaurants for a great deal of my professional life, for some 18 years.
19.I have done training in this area over the years, and I have done Tafe courses in hospitality. This is the only form of work that I am qualified for.
20.It is a difficult industry to work in, where jobs are referred by word of mouth. Most restaurants are stand alone small businesses, and there is a very personal relationship between management staff and the owners of the restaurant. This is the case of where I am, as the owners offered me a job where I was previously working.
21.Our marriage is continuing, and both Neil and I are committed to it. If Neil was deported, then I would need to follow him as I would like to continue my marriage, to have a family and to live with him.
22.In my view Neil did not commit the offences for which he was convicted, and while the stressors and strains of conviction and separation have affected us, our marriage still endures.
23.If Neil was deported then I would need to follow him to continue our marriage.
24.I am unaware of whether work would be available to me in the United Kingdom if I was to follow Neil. I have never worked in the United Kingdom and have only ever been there on holidays for short periods of time.
25.I am unaware of how the restaurant industry works there, but I envisage that it would be like it is in Western Australia and require personal contacts to do the management work that I am experience [sic] and qualified to do.
26.I certainly have no jobs that I know available to me in the United Kingdom.
27.If I left for the United Kingdom, I would leave the support of my family which has been crucial to assisting me since Neil was convicted and indeed prior to that stage. I am very close to my mother and father, and they are at retirement age, with my father now retired and my mother contemplating retirement shortly.
28.My father’s health is good, but my mother’s health is not good at the moment. My mother has had problems with depression and other physical ailments.
29.My brother’s death has hurt the family badly, as he was 31 years of age when he died. My mother and father grieved for his loss and I have assisted them.
30.I come from a large family of some 6 siblings, and we all support my mother and father but I have a definite role, especially as I currently live with them.
31.If Neil is deported then I would not be able to go with him immediately. I would need to wind down my current job, apply for a visa and hopefully meet some of the debts especially to my mother and father. I envisage this would take a minimum of 4 – 6 months, which we would then again be apart for.” (Exhibit A2)
In cross-examination Ms Hembrow gave evidence to the following effect:
·she has travelled to the UK three or four times for about two weeks each time;
·she has met the applicant’s parents and his son and she “gets on” with them;
·if the applicant is deported, she would join him in the UK – she does not want to give up their marriage;
·she and the applicant owe $60,000 to her parents and $50,000 to financial institutions – her main concern is the debt to her parents which she would be unable to clear from the UK;
·if she has to leave Australia, it will be devastating for her parents, not only because of the separation, but also because of the difficulty in repaying the debt;
·her parents are nevertheless supportive of her situation;
·she has never been out of work in Australia but her work prospects in the UK are uncertain.
Additional Evidence Tendered by the Applicant
Statement of Reverend Graham Wright
The applicant tendered in evidence the following signed statement of Reverend Graham Wright, dated 26 October 2013:
“1. I am an ordained Anglican priest. My current job is as Senior Prison Chaplain to the Anglican Diocese of Perth, coordinating Chaplain at Casuarina Prison and chairman of the Prison Chaplain’s Association for WA.
2.I do not disclose my residential address for security reasons.
3.I met Neil Hembrow when he was at Hakea Prison, where I was the Anglican Chaplain. I also got to know Neil further at Casuarina Prison as I was coordinating Chaplain at that prison.
4.I have come to know Neil well. I know the charges that he was convicted of, and I know that he asserts his innocence of those charges, evidently to me of a clear conscience.
5.I am aware of the various sex offender courses that are available to offenders in prison, and I am also aware that parole is usually contingent upon successful treatment [sic] of these courses. I am aware that these courses usually require an acknowledgement of guilt from the offender to complete, and except for the ‘deniers’ course, these courses are not open to those who do not accept their guilt.
6.I know that Neil is married to his wife Sarah and has been for some seven years. I am aware that their marriage is continuing as a solid relationship, and I know from my discussions with Neil that he values his relationship and desperately wishes it to continue.
7.I was first contacted to provide support to Neil, following his sentencing, by Sarah’s uncle, the Reverend John Meagher who is the Anglican Rector of South Perth.
8.My observations of Neil is that he is a young man of good character. He impressed me with this from the first day that I met him in prison.
9.From my discussions with him, I am sure that he is not embittered by the circumstances surrounding his conviction and sentencing, notwithstanding his assertion of innocence. He continues to be a well behaved young man, considerate to others and shows good character.
10.Neil has behaved himself in prison, notwithstanding the pressures that come from imprisonment itself and the difficulties in dealing with other prisoners. I know that he has not been the subject of any prison charges.
11.I am very impressed with the support that he is provided by his wife Sarah. She has shown great strength and to my observation continues to be very committed to her marriage with Neil. I know that she has a responsible position, working as a Restaurant Manager at … Restaurant in Inglewood.
12.I know too that Sarah has a supportive family who have continued to support Neil and Sarah following his imprisonment and who have provided considerable financial support. I know particularly that Neil feels the burden of this financial support, particularly from Sarah’s parents and that he wishes to repay the money when he is employed upon release.
13.I have some five years experience in dealing with prisoners, and in ministering to them. Based on this experience, while it is my observation that Neil is a proud man, he does seem to me to be of good character and sensible, and far away from a depraved character. He is exceptional amongst prisoners in his disposition and character, and I have no hesitation in forming an opinion that he is a most unlikely recidivist.
14.It is my considered opinion on my observations of Neil that he will be committed to his family. I know he and Sarah are anxious to have children. I am sure that he will look after his family and make an appropriate contribution to Australian society.” (Exhibit A3)
[The Tribunal notes that Rev Wright was not required by the respondent for cross-examination and his statement was admitted into evidence by consent.]
Statement of Reverend John Meagher

The applicant tendered in evidence the following signed statement of Reverend John Meagher, dated 26 October 2013:
“ 1. I am an ordained Anglican priest.
2.I know the appellant Neil Hembrow as he is married to my niece and goddaughter, Sarah.
3.I have known Neil since 2005 when he first met Sarah and came into contact with our family. Neil and Sarah’s wedding was a joy and delight to me personally.
4.I have come to know Neil as a young man as he has established his marriage with his wife and become a part of our family.
5.I have observed the marriage between Neil and Sarah, and it has been a strong relationship since it commenced.
6.This marriage has endured stress beyond most marriages and has endured and is still to my knowledge a very strong marriage. This has included the loss of an unborn child. It has also included some financial difficulties.
7.Most obviously, their marriage has also endured the enormous pressures of Neil’s trial and conviction, and subsequent imprisonment. I have observed Neil and Sarah through that process, and they have both remained strongly committed to each other.
8.I have observed Neil and have come to the view that he has a good moral character at many levels. All through the stresses of his trial and conviction and subsequent imprisonment, there has been no suggestion from Neil that he draw away from his marriage to Sarah.
9.From my observation of Neil I know him to have a good heart and strong personal morals. Indeed I have told dodgy jokes and he has objected to them coming from a priest.
10.He has also shown good moral character in his marriage with Sarah. He is gentle and loving with his wife and to my personal knowledge has endured great anguish about what his situation has put her through.
11.I know Sarah well, having known her since her childhood as my niece. Sarah is a very strong character, perhaps stronger than Neil.
12.I know that she has stood by Neil as she believes in him and particularly believes him to be innocent of the charges of which he has been convicted. Sarah has had to endure many privations as a result of what has happened to Neil, including the loss of his companionship and contribution to their financial wellbeing, the enormous costs of funding a defence to the charges and the loss of Neil’s companionship and day to day support while he has been in prison. She has had to visit him in prison and to give her strength to him to endure what he has gone through.
13.If Neil stays in Australia and continues his marriage, then I will support Neil and Sarah as they need me. My hope is that they will have the strength to endure in their relationship to which they are both obviously very committed, and with the help of their family and their own commitment I am sure that they will have the family that they both want and contribute well to this country.” (Exhibit A4)
[The Tribunal notes that Rev Meagher was not required by the respondent for cross-examination and his statement was admitted into evidence by consent.]
Statement of David Bickley
The applicant tendered in evidence the following signed statement of David Bickley, dated 5 November 2013.
“1. I am the proprietor of a business, Bickley Irrigation. This business has been in existence for some seven years, and contracts for reticulation and landscaping to builders and developers.
2.I first met Neil Hembrow some time ago, probably seven to eight years ago. I met him through darts, in the South West.
3.From when we met, we both become [sic] good friends.
4.Neil first worked with me after he and Sarah sold their business in Margaret River. He worked for me on and off for some 18 months.
5.Neil worked for me as a labourer. He has been a good, reliable worker who is not afraid to do all the jobs. I have very much appreciated his work when I have been able to employ him.
6.I have work available to me that Neil could do. When he is released, I intend to employ Neil on a fulltime basis to do the same sort of work again.” (Exhibit A5)
[The Tribunal note that Mr Bickley was not required by the respondent for cross-examination and his statement was admitted into evidence by consent.]
Additional Material Included in the G Documents
The Tribunal notes that the following material, supportive of the applicant’s case, is included in the G Documents:
·submission from applicant (G12, pp 92–95, 124–130);
·letter from Sarah Louise Hembrow, dated 19 February 2013 (G12, pp 101–103);
·letter from Rev John Meagher, dated 30 March 2013 (G12, p 90);
·letter from Robyn Brennan and Kevin Brennan, dated 19 April 2013 (G12, pp 96–97);
·letter from Chris and Susan Hembrow, dated 20 March 2013 (G12, p 98);
·letter from Reverend Graham Wright, dated 4 April 2013 (G12, pp 99–100); and
·letter from the applicant, dated 2 August 2013 (G18).
It is unnecessary to set out the contents of any of that material in these reasons.
Analysis
Application of the “character test”
By reason of the fact that the applicant was, on 30 September 2011, sentenced to 2 years’ imprisonment, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.
Should the discretionary power to cancel the visa be exercised in this case?
The primary considerations
Paragraph 9 of the Direction states as follows:
“ 9 Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The strength, duration and nature of the person’s ties to Australia;
(c)The best interests of minor children in Australia;
(d)Whether Australia has international non-refoulement obligations to the person.”
Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1 of the Direction states as follows:
“ 9.1     Protection of the Australian community
(1)   When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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 person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)   The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d)   The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
(f)   The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending;
(h)   Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i)    Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
(j)   Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a)   The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)   The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the person re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to 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).”
As regards the nature and seriousness of the applicant’s criminal offending to date, the applicant acknowledged that the sexual offences of which he was convicted in September 2011 were serious but he submitted that they were not at the top end of the scale of seriousness of such offences because:
·they comprised one episode on 14 July 2010;
·the complainant was close to 16 years of age at the time;
·there was no force or coercion on the part of the applicant – the sexual conduct was “strictly consensual”:
·there were no aggravating factors such as grooming, planning, persistent contact or persistent suggesting on the part of the applicant.
The Tribunal notes, however, that, while the relevant offences themselves may have been at the lower end of the scale of seriousness of such offences, they nevertheless fall squarely within the category of offences that, pursuant to para 9.1.1(1) of the Direction, are “viewed very seriously”, namely, “sexual crimes” (subpara (a)) which, furthermore, were “committed against vulnerable members of the community” (subpara (b)) - in this case, a child under the age of 16 years.
In the Tribunal’s opinion, the sexual offences of which the applicant was convicted in September 2011 are to be regarded as very serious offences for the purposes of para 9.1 of the Direction.
As regards the “nature of the harm to individuals or the Australian community should the [applicant] engage in further criminal or other serious conduct” (para 9.1.2(1)(a) of the Direction), there can be no real dispute that, should the applicant in the future engage in the kind of criminal conduct of which he was convicted in September 2011, the nature of the harm to the victim(s) would be very damaging and should be regarded as very serious for the purposes of para 9.1 of the Direction.
The more problematic matter for the Tribunal’s consideration is the “likelihood of the [applicant] engaging in further criminal or other serious conduct” (para 9.1.2(1)(b) of the Direction).
There is no specific objective evidence before the Tribunal regarding the risk of the applicant’s reoffending. The Tribunal notes, however, the opinion expressed by Reverend Graham Wright (see para 13 of his statement set out in paragraph 18 above) that the applicant is “a most unlikely recidivist”.
Furthermore, there is little objective evidence before the Tribunal regarding rehabilitation in respect of the applicant. That evidence comprises:
·a Department of Corrective Services Immigration Report, dated 8 March 2012, which states (inter alia):
“ 5     Program Participation
5.1      Comment on prisoner’s program participation.
Include program name, status and any issues if applicable.
Mr Hembrow was assessed and recommended for participation in the following:
SEX OFFENDING: Sex Offending Denier’s Program APPEAL. Mr Hembrow is appealing his conviction and therefore no suited until the outcome of his appeal.
SUBSTANCE USE: Pathways – high intensity DENIAL.
COGNITIVE SKILLS: Due to Mr Hembrow low score he was assessed as not requiring a cognitive skills program” [sic] (G8, p 79);
·A Department of Corrective Services Immigration Report, dated 22 July 2013, which states (inter alia):
“ 5     Program Participation
5.1      Comment on prisoner’s program participation.
Include program name, status and any issues if applicable.
On the 20/10/2011, Hembrow was recommended for the following programs:
SEX OFFENDING:
Hembrow was recommended to participate in a Sex Offending Denier’s Program. There are no programs available prior to Hembrow’s EDR.
ADDICTION OFFENDING:
Hembrow was recommended to participate in a Pathways program. There are no programs available prior to Hembrow’s EDR.” (G17, p 136)
Deane DCJ, in her sentencing remarks on 30 September 2011 (set out in paragraph 12 above) adverted indirectly to the risk of the applicant’s reoffending and his rehabilitation prospects when she said:
“ In your case I do not consider that the need for specific deterrents [sic] must be emphasised heavily because, although you have a prior conviction or convictions, they relate to offences of dishonesty and you have not offended in a sexual manner in the past. Essentially, you come before the court in that regard with comparatively positive antecedents. Clearly you have a great deal of family support and support from members of the community who know you well, and these people maintain their support for you despite your current situation.
I accept that the offending of which you have been convicted is very much out of character for you. It is to your credit that you have in the past had a consistent employment record and you have contributed to the community in that way and also through your interest in various sports. You are fortunate to have grown up in a loving and supportive family environment, though no doubt you are concerned at the distress your convictions have caused other people.
…
In this case there is no psychological report but it is evident that you have not offended in this way in the past. And your history, although you had recent difficulties in managing alcohol intake, does not suggest that you have any significant deficits relevant to your social and emotional functioning, save of course for the depression which you are currently suffering from.” (G5, pp 60, 63)
Her Honour subsequently described the prospects of the applicant’s rehabilitation as “positive” (G5, p 67).
On the other hand, the applicant has maintained that he was falsely accused, and wrongly convicted, of the sexual offences of which he was convicted in September 2011 and, accordingly, has declined to accept responsibility and express remorse for those offences. His categorical denial of guilt has also, according to his own evidence, caused him to decline the offer of a place in a prison rehabilitation program, namely, the Sex Offending Denier’s Program.
The Tribunal is not satisfied that, at the present time, the applicant has made significant progress towards his rehabilitation but it nevertheless accepts, on the basis of the evidence before it (including, in particular, the evidence of Sarah Hembrow, Reverend Graham Wright and Reverend John Meagher), that he has favourable rehabilitation prospects.
Having regard to the evidence before it, the Tribunal is of the opinion that the risk of the applicant’s reoffending in a similar, or other serious, manner is relatively low. In the Tribunal’s opinion, however, there remains a real, and not insignificant, risk that he may so reoffend.
Conclusion regarding protection of the Australian community
Notwithstanding the Tribunal’s opinion that the risk of the applicant’s reoffending in a serious manner is relatively low, the very serious nature of the sexual offences of which he was convicted in September 2011, and the very serious harm that would be done to the victim(s) should he engage in that kind of criminal conduct in the future, together with the existence of a real, and not insignificant, risk that he may reoffend in a similarly very serious manner, lead the Tribunal to conclude that the “primary consideration” regarding “protection of the Australian community from criminal or other serious conduct”, referred to in paras 9(1)(a) and 9.1 of the Direction, weighs strongly in favour of cancellation of the visa.
The strength, duration and nature of the person’s ties to Australia
Paragraph 9.2 of the Direction states as follows:
“ 9.2     Strength, duration and nature of the person’s ties to Australia
(1)   Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i)   Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.”
The applicant has (apart from various short absences) continuously resided in Australia from 4 October 2005 (when he was 22 years of age). He first offended in 2008 and subsequently committed the very serious offences, of which he was convicted in September 2011, on 14 July 2010.
The Tribunal accepts that the applicant has contributed positively to the Australian community, by way of his employment and sporting activities, since October 2005. He has, however, been in detention from 16 September 2011 to date. Accordingly, the period in which the applicant has contributed positively to the Australian community is relatively short.
On the other hand, the Tribunal is satisfied that the applicant has had strong family ties to Australia through his marriage to Ms Hembrow from 2006 to date. He has also had various employment links with Australian citizens from 2006 to September 2011 but none of his various employments has been of substantial duration.
Primarily because of the applicant’s strong family ties to Australia, the Tribunal is of the opinion that this “primary consideration” weighs against cancellation of the visa. Having regard, however, to the relatively limited duration of those ties (approximately 7 ½ years), and to the lack of other substantial ties to Australia, the Tribunal does not attach significant weight to this “primary consideration”.
The best interests of minor children in Australia

It is common ground that there is no minor child in Australia who would be affected by a decision to cancel, or not cancel, the visa.
Accordingly this “primary consideration” is not relevant to the applicant’s case and, consistently with para 8(1) of the Direction, the Tribunal has not taken it into account.
Whether Australia has international non-refoulement obligations to the person
Paragraph 9.4 of the Direction states:
“ 9.4 International non-refoulement obligations
(1) In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
…
(3)Australia has non-refoulememnt obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”
The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case. Accordingly, pursuant to para 9.4(1) of the Direction, the Tribunal is not required to consider such matters.
This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and, consistently with para 8(1) of the Direction, the Tribunal has not taken it into account.
Other relevant considerations
Paragraph 10 of the Direction states as follows:
“ 10     Other considerations – visa holders
(1)   In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact on Australian business interests;
(c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(i)   The person’s age and health;
(ii) Whether there are substantial language or cultural barriers; and
(iii) Any social, medical and/or economic support available to them in that country.”
Having regard to the evidence before it, it seems to the Tribunal that the considerations referred to in subparas (a) and (d) of para 10(1) of the Direction are relevant to the applicant’s case. The Tribunal notes, however, that the list of considerations set out in para 10(1) is not exhaustive.
Effect of cancellation of the visa on the applicant’s immediate family in Australia
The Tribunal accepts that cancellation of the visa would have a substantial adverse effect on Ms Hembrow, the applicant’s wife. The Tribunal accepts Ms Hembrow’s evidence that, in the event of the applicant’s removal from Australia, she would, after making the necessary arrangements, join him in the UK, thereby losing a successful career in the hospitality industry in Australia and facing the uncertainty of employment prospects in the UK, as well as being separated from her parents (with whom she presently resides) and her siblings in Australia.
The extent of any impediments that the applicant may face if removed from Australia to the UK
The applicant did not contend that he would experience any impediments in the UK by reason of his present age and state of health or by way of language or cultural barriers, and the Tribunal is satisfied that he would not experience any such impediments. The Tribunal accepts, however, that he would experience great disappointment at the loss of his opportunity to make a life for himself and Ms Hembrow in Australia.
As regards possible employment in the UK, the applicant indicated in his oral evidence that he would initially seek road maintenance work (which he was doing before he left the UK and which he did shortly after arriving in Australia in October 2005). The Tribunal is unable to predict what his prospects of obtaining such employment or other labouring employment in the UK would be but it is not satisfied that they would be significantly lower in the UK than in Australia. Furthermore, the applicant would have substantial support from his parents in the UK by way of the provision of accommodation and emotional support, and he would have physical access to his 9-year-old son and the opportunity to strengthen his bond with him and play a substantial parental role in his upbringing.
Conclusion regarding other relevant considerations.
As regards the effect of cancellation of the visa on Ms Hembrow, the Tribunal accepts that this consideration weighs against cancellation of the visa. As regards the effect on the applicant of his removal from Australia to the UK, however, the Tribunal, having regard to the matters referred to in paragraphs 50–51 above, does not regard this consideration as weighing significantly against cancellation of the visa.
Conclusion – the Preferable Decision
In the Tribunal’s opinion the “primary consideration” regarding “protection of the Australian community from criminal or other serious conduct”, which weighs in favour of cancellation of the visa, should, in the circumstances of this case (as discussed in paragraphs 26–37 above) be given great weight. On the other hand, the other “primary consideration” regarding the applicant’s ties to Australia, which weighs against cancellation of the visa, should, in the Tribunal’s opinion, having regard to the circumstances of this case (as discussed in paragraphs 39–42 above), be given relatively little weight. As regards the other relevant considerations in this case – in particular, the effect of cancellation of the visa on Ms Hembrow – the Tribunal attaches substantial weight to that consideration, but considerably less weight than it attaches to the former abovementioned “primary consideration”.
On balancing the relevant “primary considerations” and the other relevant considerations in this case, therefore the assessment of the Tribunal is that the “primary consideration” regarding "protection of the Australian community from criminal or other serious conduct”, which weighs in favour of cancellation of the visa, clearly outweighs the “primary consideration” regarding the applicant’s ties to Australia and the other relevant considerations – in particular, the effect of cancellation of the visa on Ms Hembrow – which weigh against cancellation of the visa.
Although the abovementioned balancing exercise points towards the ultimate outcome of this proceeding, it does not, of itself, determine that outcome. The outcome of this proceeding will ultimately be determined in accordance with the Tribunal’s obligation, pursuant to para 7(1)(b) of the Direction, to determine whether the risk of the applicant’s causing future harm to members of the Australian community is “unacceptable”. In making that determination the Tribunal must have regard to the principles set out in para 6.3 of the Direction.
Having regard, in particular, to the principles referred to in paras 6.3(2) and 6.3(4) of the Direction, and to:
·the very serious nature of the sexual offences against a child of 15 years and 10½ months of age of which the applicant was convicted in September 2011;
·the Tribunal’s opinion that, although the risk of the applicant’s reoffending in a similar, or other serious, manner is relatively low, there remains a real, and not insignificant, risk that he may so reoffend;
·the very serious nature of the harm that would be caused to a member or members of the Australian community if the applicant so reoffended; and
·the relatively short period of time in which the applicant has been participating in, and contributing to, the Australian community;
the Tribunal concludes that the risk of the applicant’s so reoffending and causing very serious harm to the Australian community is an unacceptable risk which should not be tolerated by the Australian community. Accordingly, the Tribunal determines that the applicant represents an unacceptable risk of very serious harm to the Australian community and that he has forfeited the privilege of continuing to hold the visa and of remaining in Australia.
The Tribunal concludes, therefore, that the preferable decision in this case is that the visa be cancelled under s 501(2) of the Act.
Decision
For the above reasons, the decision under review is affirmed.

I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

...........[sgd D Brodie]..........................................
Administrative Assistant
Dated 22 November 2013

Date of hearing 7 November 2013

Representative of the Applicant Mr M Cuomo

Solicitor for the Applicant Legal Aid, WA

Representative of the Respondent Mr A Gerrard

Solicitor for the Respondent Australian Government Solicitor

Division	General Administrative Division
File Number	2013/4462
Re	Neil Hembrow
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	22 November 2013
Place	Perth

Date of hearing	7 November 2013
Representative of the Applicant	Mr M Cuomo
Solicitor for the Applicant	Legal Aid, WA
Representative of the Respondent	Mr A Gerrard
Solicitor for the Respondent	Australian Government Solicitor