NRFX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1577
•1 June 2021
NRFX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1577 (1 June 2021)
Division:GENERAL DIVISION
File Number: 2021/1483
Re:NRFX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date of Decision: 1 June 2021
Date of Written Reasons: 2 June 2021
Place:Brisbane
The Tribunal sets aside the decision made by the delegate of the Respondent on 5 March 2021 and exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.
.........................[SGD]...............................................
Member Rebecca BellamyCATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 - Five Year Resident Return visa- where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – isolated offending – exceptionally low risk of re-offending – best interests of minor child – decision under review set aside
LEGISLATION
Criminal Code 1899 (Qld)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Harkin v R (1989) 38 A Crim R 296
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99
R v. Rae [2008] QCA 385Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
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
Member Rebecca Bellamy
2 June 2021
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 60-year-old citizen of United Kingdom. In June 1978, when he was 17 years old, he moved to Australia.[1] The most recent visa granted to him was a Class BB Subclass 155 - Five Year Resident Return visa (“visa”).[2]
[1] Exhibit G1, Section 501 G documents, G2, page 43.
[2] Ibid, page 46.
On 12 October 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 16 October 2020 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 9 November 2020 and 4 March 2021 the Applicant provided further information to the Respondent in support of his revocation request.[5] On 5 March 2021 the Respondent decided not to revoke the cancellation.[6]
[3] Ibid, page 46 to 52.
[4] Ibid, pages 65 to 84.
[5] Ibid, G5 pages 162 to 221 and G11 pages 229 to 280.
[6] Ibid, G2, page 14.
The Applicant subsequently lodged an application for review in this Tribunal on 12 March 2021.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[7] Ibid, G1, pages 3 to 9.
The hearing of this application proceeded on 20 and 21 May 2021. The Applicant gave evidence via videoconference. The Applicant’s partner gave evidence by telephone. Dr Gavan Palk and Ms Angela Elia gave evidence by telephone The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[9]
[8] [2018] FCAFC 151.
[9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[10]
[10] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 15 September 2020, the Applicant was sentenced to a term of imprisonment of 12 months to be suspended for two years after serving two months.[11] What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[12]
[11] Exhibit G1, Section 501 G documents, G2, page 30.
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[13]
[13] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other 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.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(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.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant has lived in Australia since June 1978. Since relocating here he has had steady employment and he has been in three long-term relationships. He has an adult daughter from his first marriage, “Ms E”, no children from his second long-term relationship and a teenage daughter, “Child A”, from his current long-term relationship which commenced in 2005. During that relationship the Applicant lived with his partner, Child A, and his partner’s two children from a previous relationship.
The Applicant has been assessed as having an IQ of 79 which means he has limited intellectual ability. He has also been diagnosed with a communication disorder and social anxiety disorder. I will go into these diagnoses in more detail later in these reasons. For present purposes, it is relevant to note that he lacks confidence and competence in social situations.
There is no evidence before me of any complaint ever having been made to police about the Applicant, or of any charges or convictions against him, except in relation to the conduct that led to the cancellation of his visa. Nor is there evidence that he has committed any traffic infringements.
The conduct that led to the cancellation of the Applicant’s visa took place on the afternoon of 22 August 2017 at the home he shared with his partner and Child A who was ten years old. His partner, “Ms S”, was overseas at the time.
The Applicant had brought his daughter and her nine-year-old school friend (“the victim”) home from school for a play date. He had never previously been involved in his daughter’s play dates. Previously, when Child A had friends over, Ms S or her adult daughter were always there, and he mainly kept to himself as he considered there was no need for him to be involved.[14] Ms S gave evidence corroborating this.[15] He said the play date with the victim came about because the victim kept “nagging” Child A to come over. He would have said no but for the fact that they once dropped the victim off at her home and, seeing the conditions that she was living in (“a total pigsty”), he felt sorry for her - he thought she might need a good friend like his daughter.[16]
[14] Transcript, page 47, lines 24 to 46.
[15] Transcript, page 86, lines 17 to 26.
[16] Transcript, page 48, lines 3 to 44.
The Applicant’s account of what happened that afternoon differs in important respects from the Crown’s account. Both accounts are set out below.
The Crown’s Statement of Facts alleged the following:[17]
[17] Exhibit G1, Section 501 G documents, G11 pages 233 to 234.
·The Applicant, Child A and the victim were the only ones in the house at the time of the offending. The victim was wearing a pair of jeans shorts and a top. The two girls played together in the garage of the house where Child A showed the victim her pets.
·The Applicant came into the garage and suggested the girls have showers. The victim had a shower first. Whilst Child A was in the bathroom the victim was sitting on the couch. The Applicant asked if she wanted to play the adult version of 'Murder in the Dark'. The victim said "no". The Applicant touched the child's vaginal area on the outside of her clothing for approximately 3-5 seconds with his hand (Count 1).
·The victim moved her hand in an attempt to remove the Applicant's hand and he subsequently removed his hand and said "so have you touched anyone there?" The victim responded "no". The Applicant said "the person that's it touches someone anywhere in the body part and wherever they touch you have to touch them in the same place." The Applicant said to the victim "Don't tell [Child A] cause she doesn't need to know about this."
·The Applicant's daughter came out of the shower and she and the victim played on her iPad for a short time. All three then started playing “Murder in the Dark”. The Applicant was ‘it’ first which required him to find and then ‘tag’ one of the children by touching them. The Applicant found and tagged the victim by touching her on her arm.
·The victim was now ‘it’. She found and tagged the Applicant who was hiding in a doorway. She tagged him on his shoulder. The Applicant touched her on her vaginal area with his fingers on the outside of her clothing (Count 2).
·The Applicant pulled down the victim’s top and touched her breast for three or four seconds on the inside of her clothing (Count 3).
·The Applicant grabbed the victim’s wrist and moved her hands so that they touched his face, his shoulder and his penis or genital area on the outside of his clothing for approximately two seconds (Count 4) before moving her hands up towards his shoulder area.
·Child A came up to the Applicant and victim and said words to the effect "Why are you just standing there?" The Applicant said "I was waiting for her to say my name cause she tagged me."
·The Applicant drove the victim to her home. There she disclosed the offending to her mother. The victim’s parents subsequently attended the Applicant's home and confronted him before contacting police and making a complaint.
·The police separately interviewed both children and the Applicant.
·During the interview the Applicant agreed that he asked both children to have a shower. He stated that approximately 15 to 30 minutes after the victim had a shower, he was standing in the lounge room as was the victim and he noticed that the zip on her shorts was undone. He said he pointed to her zipper and that he touched the front of her shorts for a 'micro-second' but that it was unintentional.
·He also said they played 'Murder in the Dark' and that he was the first person to be 'it'. He said the only rule was that when you found someone you had to say their name when you touched them as part of the game. He said he found the victim near the front door and that he called out [her name] and touched her on her breast with his right hand but it was unintentional. He accepted that it may have been on skin because her top was a bit low and loose. He accepted he did not say anything to her at this point and that they continued playing the game.
·When the victim's statement was put to him he agreed that he asked her about an 'adult' version of 'Murder in the Dark' and that he said that the game involved people being able to touch anywhere and that he had also asked her not to tell his daughter about the adult version. When asked why he did not want his daughter to know he accepted that it was because it was an inappropriate subject matter for his daughter.
·When the separate incidents described by the victim were put to the Applicant, he said "I don't remember that happening".
The material tendered by the Respondent includes a statement from each of the victim’s parents.[18] Her mother’s statement indicates that the victim was unusually quiet after returning home and, after her mother asked her several times over an extended period if there was anything wrong, she told her mother what had happened. Her mother then told her father (who lived elsewhere) by phone what the victim had told her. The victim’s mother’s statement contained some speculation and some allegations that differ from the allegations made by the Crown. It was the victim’s mother who told her father what had happened.
[18] Exhibit R2, Respondent’s Bundle of Summons Material.
The Respondent did not refer to these statements in submissions and did not put the contents to the Applicant at the hearing. In fairness, I do not take any part of the statements into account in a way that is adverse to the Applicant. However, I do take into account both parents’ evidence that they each angrily accused the Applicant of touching the victim, that the victim’s father threatened to give him a “hell of a hiding” if he did not go to the police station, that the Applicant responded passively to all of this, merely saying he did not mean it and that he could not go to the police station as there was no-one to look after Child A, and that Child A who witnessed the confrontation said words to the effect that the Applicant “doesn’t do that”.
After being interviewed by the police, the Applicant was charged and held on remand. Five days later he was granted bail and he remained in the community until he was sentenced on 15 September 2020.[19] His bail conditions included that he could not have any contact with Child A. There is no evidence of him having breached his bail conditions or of having committed any offences while out on bail.
[19] Exhibit G1, Section 501 G documents, G2, page 41.
The Applicant initially pleaded not guilty but he ultimately pleaded guilty to four counts of indecent treatment of a child under 16 with the statutory aggravating features that the victim was under 12 and she was in the Applicant’s care at the time.
The learned Judge’s sentencing remarks included the following[20]:
[20] Ibid, pages 32 to 35.
“Initially, the girls had a shower. There was then some discussion between you and the complainant, I think, in your daughter’s absence, of playing “murder in the dark” or an adult version of that game, and the complainant initially indicated that she was unwilling to participate in that. Thereupon, a version of that game did take place, during which the offences were committed.
Count 1 was you touching the complainant’s vagina on the outside of her shorts for three to five seconds. Afterwards, you asked her not to tell your daughter about that occasion. Count 2 was another touch on the vagina area. Count 3 was touching her breast for three to four seconds outside her clothing, but there may have been some skin on skin conduct, because she had a relatively low neckline. Count 4 was putting her hand on your penis for about two seconds outside your clothing.
After these events had occurred, the child went home to her parents, where she immediately disclosed to them these events. They came to your house and there was a confrontation, whereupon the parents were understandably angry, in particular, the girl’s father. You were, in any event, interviewed by police. You made admissions to them of some misconduct, but you gave a slightly different version of the events. They were certainly not express admissions, but, then again, there were no real substantive denials by you, either.
…your offending might be seen as opportunistic, but to a degree, engineered, particularly initially speaking to the child in the absence of your daughter; there was some partial grooming of her; there was touching, mostly outside the clothing, fleeting contact, but definitely a breach of trust.
…
I am required by the legislation to have regard in the sentencing process, primarily, to a number of features: the effect of the offence on the child, which, in my conclusion, is substantial and somewhat ongoing; the age of the child – she was only nine at the time; and the nature of the offence – there was no physical harm or threat of physical harm to the child. I take into account the need to protect that child and other children from any risk of you reoffending, and the need to deter similar behaviour by others towards children, to protect them.
…
I do take into account the principle in the legislation that in sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances…You do have a lack of prior criminal history, but it is not an early guilty plea, I find it difficult to conclude that there is genuine remorse, although the offending is at a relatively low level.”
(Underlining added)
I have underlined three passages in the quoted sentencing remarks where the learned sentencing Judge appears to have made findings that differ from the Crown’s allegations. First, the Statement of Facts alleged that the Applicant committed Count 1 before the game commenced, not after. Second, it indicates that the Applicant asked the victim not to tell Child A after telling her about the adult version of the game, not that he specifically asked her not to reveal that he had touched her vagina. Third, the victim’s mother’s statement indicates that the victim did not immediately disclose the offending but rather that it was some time before she made the allegations. The sentencing remarks do not indicate that His Honour intended to make findings that differed from the Crown case, and the differences seem inadvertent.
In reaching the appropriate penalty, His Honour took into account:
·The Applicant’s consistent work history;
·His financial support of his family while living away from them due to his bail conditions;
·His low IQ, communication disorder, social anxiety/social phobia and the fact that, apart from the offending, he had never displayed anti-social behaviour; and
·The low level of the offending, his health issues and his late pleas of guilty.
His Honour sentenced the Applicant as follows:
·Counts 1, 2, and 4: 12 months imprisonment, suspended after serving two months for two years; and
·Count 3: two months imprisonment and probation for three years.
The Applicant has consistently maintained that he did not mean to touch the victim inappropriately.
After the Applicant was charged, he was assessed twice by Dr Gavan Palk, forensic psychologist, at the request of his criminal lawyer. The purpose was to canvass the impact of the Applicant’s communication problems on the answers he gave in the police interview and pre-trial hearing.[21] Dr Palk provided reports in April 2019 and August 2020.
[21] Exhibit G1, Section 501 G documents, G5, pages 177 to 186; A4.
In the first report, Dr Palk reported that the Applicant had denied any inappropriate touching and indicated that he touched the victim while playing a game of murder in the dark where participants were blindfolded.[22] He said that if he had touched the victim inappropriately it was not intentional and was an accident. The Applicant adhered to that account in subsequent interviews, including in May 2021 when Dr Palk interviewed him for the purpose of assessing his risk of re-offending.
[22] Ibid, G5, page 188.
In his revocation request the Applicant addressed the offending in the following way:
“I was not going to plead guilty, I had a meeting the night before the trial with my lawyer he mention that if I go ahead with the trial because what I said and the practical joke with the toy the jury would most likely find me guilty and get a longer sentence, he mentioned if I plead guilty I would get less of a sentence so I decided to plead guilty just to get a less sentence. So now I’m going to get deported for saying something that I said without even thinking about it and playing a practical joke”[23]
(Errors in original)
[23] Exhibit G1, Section 501 G documents, G2, page 68
When asked in the hearing to explain what the practical joke was, he said there was a little soft toy that the girls were throwing to each other and he pushed it down the back of the victim’s shirt and into her shorts and said “Hey, look, she’s done a big poo”. He said he realised that he should not have done that. He said it was a spur of the moment practical joke. When asked if he would have been okay with another man doing that to his daughter he said “No. I wouldn’t, no.” When asked if he realised it was the wrong thing to do at the time, he said it was spur of the moment and he did not think about it, it just happened. But, he said afterwards he realised “Shit, shouldn’t be doing that”[24] None of the charges related to this incident.
[24] Transcript, pages 19 to 28.
In the hearing the Applicant said the following about the offending:
· “I wasn’t in the right mindset and wasn’t thinking what I was doing which, you know, I deeply regret plus I’m not that type of person”[25]
[25] Transcript, page 5, lines 40 to 45.
· In relation to one of the touches, the victim’s zip was down and because he always points he said “Your zip’s down” and without thinking he pointed and touched it with the tip of his fingernail.[26] As he gave this evidence he demonstrated a motion with his arm in which he swung and extended it at the same time.
[26] Transcript, page 6, lines 35 to 42.
· He did not touch the victim on the outside of her clothing on her vagina for three to five seconds.
· He told the victim about the adult version of Murder in the Dark because he says things without thinking. Straightaway he was disgusted and he said “We won’t be playing that” when he realised what he had said because he says stupid things at times without thinking.[27]
· He did not suggest to the victim that they practice the adult version of Murder in the Dark. They played the normal version because Child A wanted to play it.
· The touching was unintentional as he was blindfolded, he did not know where he was touching.[28]
· He should not have played games like that or put himself in that situation.[29]
· “I shouldn’t have been playing that game, because you know, I don’t know where I’m touching.”[30]
· When asked if he remembered what he touched, he indicated the arm but said “I could be wrong. I had the blindfold on.”[31]
· He saw video footage of the victim recounting what happened and “things had changed. Like, she said she never played on the park with [Child A] but they were playing on the park.”[32]
· It was possible that he had put his hand on the victim’s breast because “I might have touched a bit lower down if she had a loose top on… It could have been lower down than what I thought”. He said he felt material. He assumed he must have touched her there because “her father was carrying on. So I assumed I must have” [33]
· He did not grab the victim’s wrist and place her hand on his face, shoulder and then his penis. He said “Well, I don’t know about the face, but I could have knocked a hand down there…because we were in such a close proximity, between the bookshelf and the couch. It was, yes, like, I could have knocked her hand and she could have brushed against me. So maybe that was right.”[34]
[27] Transcript, page 8.
[28] Transcript, page 6, lines 20 to 25.
[29] Transcript, page 6, lines 25 to 35.
[30] Transcript, page 20 lines 24 to 25.
[31] Transcript, page 20 line 30 to 31.
[32] Transcript, page 20 lines 41 to 46.
[33] Transcript, page 24 to 25.
[34] Transcript, page 25 line 22.
With respect to entering a guilty plea to the charges he said “Yes, I did, because I think, well, you know, more than likely I could have touched her. So I had to plead guilty.”[35]
[35] Transcript page 26 lines 17 to 22.
I pause to note that if the Applicant believed that merely touching the victim in the places alleged made him guilty, he was mistaken, and I will address that in more detail later in these reasons.
In May 2021, Dr Palk interviewed the Applicant and administered psychometric tests over a total of seven hours. Dr Palk gave evidence in the hearing. He said he did not think the Applicant was attempting to present an unrealistic or inaccurate impression when being interviewed. Referring to the Applicant’s account that he did not intend to touch the victim inappropriately, Dr Palk said:
“I interviewed him probably four or five times at different occasions and over the phone and of course being forensic you come at it in different ways to try and test whether they’re minimising or whether they’re serious or whether they’re faking but no, he never wavered from the position obviously until the last minute with his instructions to the lawyers”.[36]
[36] Transcript, page 66, lines 20 to 25.
Dr Palk’s reference to the Applicant’s instructions to his lawyers was a reference to his late guilty plea.
Dr Palk opined that:
“The Applicant does not fit the profile of a child sex offender. He is very low risk and that’s why I concluded that he’d be situational. In other words, he someone who is not - he doesn’t fit the criteria of someone who is attracted to children...”
He added that “…there was no evidence that he has any underlying attraction to or sexual interest in underage children of any kind”.[37]
[37] Transcript, page 68, lines 22 to 43.
I asked Dr Palk for the basis of his opinion that the Applicant is not attracted to children. He said it was based on the Applicant’s history, his interviews with the Applicant, his clinical assessment of the Applicant and the scales that he administered to the Applicant. When I asked if the Applicant could have cheated on the tests that were administered, Dr Palk said the Applicant lacked the intellectual capacity and memory to have done that.[38]
[38] Transcript, page 77, line 22 page 78, line 3.
Dr Palk said that the Applicant’s communication disorder, that had developed into “a social disconnect from other people” caused him to have difficulty picking up cues about what is appropriate and inappropriate and:
“engaging in odd or silly behaviour without thinking it through. So whilst he may do order or silly things, like touching people inappropriately, he may-there may well be no sexual intention at all. And it just happens in that spur of the moment thing. That’s my [belief] as to what’s occurred in this situation”. [39]
[39] Transcript, page 74, lines 25 to 31.
Dr Palk has a great deal of relevant experience. The Respondent did not challenge his credentials or methodology. In addition to his previous professional interactions with the Applicant, Dr Palk spent a total of seven hours interviewing the Applicant for the purposes of the risk assessment.[40] Dr Palk’s evidence deserves significant weight. His evidence supports the Applicant’s position that he did not mean to touch the victim inappropriately.
[40] Exhibit G1, Section 501 G-Documents, G5, page 187.
Further support is found in the evidence of Ms Angela Elia, registered psychologist, who treated the Applicant for anxiety, depression, stress and trauma between September 2017 and October 2018. She provided a report dated 12 May 2021 and she gave evidence in the hearing. She described the Applicant as having been shocked, confused and distressed by what had occurred (meaning the charges against him)[41] and she said he remained in shock for quite a while.[42] She described him as “…overwhelmed because he couldn’t express a lot of what was going on, and was very uncertain what to do”[43] and that he said he was “unaware that he did anything inappropriately, and he was shocked that the parents had come over and started insulting him”.[44]
[41] Exhibit A11, Psychologist Report of Angela Elia, Registered Psychologist dated 12 May 2021, page 1.
[42] Transcript, page 55, lines 15 to 20.
[43] Transcript, page 57, lines 19 to 28.
[44] Transcript, page 58, lines 1 to 5.
In answer to a question from me, Ms Elia said that it was plausible, given the Applicant’s IQ and his particular issues in relation to social situations and communication that he could have accidentally engaged in inappropriate touching.[45] Ms Elia treated the Applicant for a little over a year and her evidence seemed impartial. It deserves some weight.
[45] Transcript, page 60, lines 7 to 14.
Implicit in the Applicant’s evidence, and the evidence of Dr Palk, with some support from Ms Elia, is that the Applicant had no interest, certainly no sexual interest, in touching the victim on her breast and on her vagina through her clothes. The Applicant explicitly denied having meant to touch the victim’s breast or vagina.
However, it is implicit in the convictions that the touching was not innocent. The relevant offence provision, being s 201(1) of the Criminal Code 1899 (Qld) (“Criminal Code”), provides that:
(1) Any person who—
(a) unlawfully and indecently deals with a child under the age of 16 years; or
…
is guilty of an indictable offence.
The word “indecently” bears its ordinary, everyday meaning, being what the community regards as indecent, what offends against currently accepted standards of decency. Indecency must always be judged in the context of the time, place and circumstances in which the conduct occurred.[46]
[46] R v. Rae [2008] QCA 385 (4 December 2008) at [28].
In R v. Rae[47] the Queensland Court of Appeal considered whether a sexual motivation was required for the touching to be indecent. In reaching the conclusion that it was not as long as there was an objective sexual connotation to the touching, Daubney J (with whom Muir JA, Mackenzie AJA concurred) applied the reasoning of Lee CJ at CL that is set out in the following passage of the New South Wales Court of Criminal Appeal judgment in Harkin v R[48] at [31]:
“It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.”
(Underlining added)
[47] Ibid.
[48] (1989) 38 A Crim R 296
Accordingly, there must be something more than unintended contact with a sexual area: there must be an intention to touch that specific area or intention to gain sexual gratification. The Applicant’s account is therefore not consistent with his convictions.
Further, the learned sentencing Judge said, of the offending, that it “might be seen as opportunistic” and “to a degree, engineered, particularly initially speaking to the child in the absence of your daughter” which implies that His Honour considered the Applicant to have intended to touch the victim in those places on her body. However, His Honour did not expressly find that there was a sexual motivation to the offending, and it is not clearly implied in his sentencing remarks. Nor was it alleged in the Statement of Facts.
The Full Federal Court decision in HZCP v Minister for Immigration and Border Protection[49] (“HZCP”) considered whether a Tribunal may make a finding of fact that is contrary to a finding made by a criminal court in the context of a decision by the Minister not to revoke a mandatory visa cancellation. Their Honours were unanimous in their view that where a Tribunal is invited to make a finding that is contrary to a finding that was made by a court in a criminal matter, a heavy onus of proof applies and the Tribunal should exercise extreme caution in making any contrary finding.[50]
[49] [2019] FCAFC 202.
[50] Paragraph 43(b) where McKerracher J cited with approval a passage by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; per Derrington J at paragraph 150; per Colvin J at paragraph 180.
The majority[51] further held that where the factual finding underpins a conviction or sentence that grounds the decision-maker’s jurisdiction, the Tribunal is not permitted to make a contrary finding of fact. The convictions and sentence in that case did ground the decision-maker’s jurisdiction because they triggered the mandatory cancellation of the Applicant’s visa under s501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act thus enlivening the minister’s power under s 501CA of the Act to make the decision under review.
[51] McKerracher and Colvin JJ.
Derrington J dissented on the latter issue. Her Honour did not consider that previous authority provided:
“[A] rationale for a strict rule to prevent the Tribunal considering facts underlying a conviction that has no basis in the text of the AAT Act. And it would not promote “public trust and confidence” in the Tribunal for it to proceed on factual bases that are obviously false.”[52]
[52] HZCP at [151].
Having previously examined the decision of the Full Federal Court in Minister for Immigration and Ethnic Affairs v Gungor[53] in which the court held that, in a case where there are serious and obvious doubts about a conviction, it would be wrong to recommend revocation influenced by a conclusion that the person should not have been convicted, Her Honour said that it was “not merely “improbable” that is what the legislature intended: it is expressly contrary to the AAT Act.”[54]
[53] [1982] FCA 99.
[54] HZCP at [152].
It is not uncommon for persons seeking to have their visas returned to them to claim that they are innocent of offences of which that they have been convicted. The Tribunal is cautious about such claims and often the heavy onus of proof is not discharged. However, in this case, there is no direct evidence that the Applicant meant to touch the victim on the breast or vagina. At best, intent can be implied from the fact that he did in fact touch her in those places. He is of low intellect and has a social anxiety disorder. There is no evidence of any similar conduct by him. He has maintained the same account from the outset. According to his evidence, he pleaded guilty believing that touching the victim’s private parts, of itself, made him guilty.
Dr Palk, a well-qualified, experienced forensic psychologist believes that the touching in those places was unintentional and that the Applicant has no sexual interest in children. Ms Elia, having treated the Applicant for a year, gave evidence of his shock and confusion about the allegations and his lack of awareness of what he had done wrong. This is, in totality, strong evidence that the Applicant did not mean to touch the victim’s vagina or breasts.
I do not consider that the authority of HZCP requires me to accept that the Applicant had a sexual motivation in touching the victim, and I do not accept that. However, if I do not accept that, I think I must accept that the touching was intentional despite the strong evidence to the contrary. I note that I do not have before me the victim’s recorded evidence, so I am not able to evaluate her side of it, and that is significant in terms of the caution that HZCP advises.
Possible Medical Conditions
While the Applicant was on bail, a spot on his lung was discovered and his prostrate was found to be enlarged. However, he said he did not get treatment because he wanted to deal with it after he went back home, and going to the hospital was very traumatic because it causes him stress and anxiety and he does not know what to do when he gets there.[55]
[55] Transcript page 44, lines 40 to 45.
There is a letter from the Royal Brisbane and Women’s Hospital Emergency Department dated 10 May 2021 which notes, among other things, that the Applicant presented to the hospital with “palpitations and “funny feeling in his chest” for “past 2/7”. The letter includes “6 mm pulmonary nodule in the left upper lobe on CT that was never followed up with further investigation, 40 pack year smoking”, and “increased volume prostate with central calcification, never followed up, advised to have US imaging”.[56]
[56] Exhibit A9, Applicant’s Summons Material, TB2 page 1.
The Applicant said that he was told to go back for a scan in relation to the lump on his lung six months after it was found but he has not been back. He also said he had not sought follow up treatment for his heart. He said he knows his prostate is getting worse because when he goes to the toilet it is extremely slow. He said it feels like his lung is probably getting worse because sometimes he is short of breath.[57]
[57] Transcript, page 43, lines 36 to 43.
The Applicant attributed his refusal to get treatment while in immigration detention to the stress of his visa situation. When asked if he had access to psychologists or counsellors to deal with his stress, he said he only wanted to see people he knew. When challenged about his claim that he was refusing treatment because of the stress at the same time as he was avoiding getting treatment for his stress, he indicated that talking on the phone was hard for him and he wanted to be able to get treatment on his own terms. After much probing it emerged that the Applicant had been taken to get medical treatment on one occasion by two guards who had not handcuffed him but he was afraid of being handcuffed. He said that if his visa situation was resolved, and he was back in the community, he would get treatment. He was adamant about that despite it being put to him that there could possibly be stressful situations while in the community.[58]
[58] Transcript, pages 15 to 18.
He conceded that his partner had tried to persuade him to get medical attention for his lung, his prostate and his heart saying “You got a letter from the hospital, you’ve got to go” and he responded with “No, just don’t worry about it-put it aside-I don’t want to think about it”. He said it was too much stress and so he pushed it to one side. He said once he gets rid of all the stress then he can look forward to taking care of his health.[59]
[59] Transcript, pages 44 to 46.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes 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 crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being 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 upon 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 has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen 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 non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant’s offending was not violent. It was objectively sexual and committed against a child. Those features make it very serious. While the Applicant did not have any sexual intent, it seems that the victim naturally felt sexually violated. The sentencing remarks refer to some lasting negative impacts on her. The victim was vulnerable in the sense that she was a child in the Applicant’s sole care inside his home.
The learned sentencing Judge considered the offending to be at the lower end of the spectrum of seriousness for the type of offending. Still, reflecting the seriousness of that type of offending, His Honour felt compelled to impose a sentence of imprisonment.
The Applicant had never offended before, and has not offended since. There is no issue of frequency of offending, escalation or cumulative impact.
Nor do factors (a)(iii), (b)(i),(iii) or (iv), (f) or (g) in paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The relevant matters in paragraph 8.1.1(1) of the Direction, in their totality, weigh moderately against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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.
Paragraph 8.1.2(2) relevantly provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further indecent touching of children of the kind that he has engaged in, the harm to the victims is likely to include emotional distress which could, in turn, lead to psychological harm. The family of the victims would likely suffer some emotional distress too.
Likelihood of engaging in further criminal or other serious conduct
In his risk assessment report dated 8 April 2019, [60] Dr Palk diagnosed the Applicant with a social anxiety disorder (social phobia) and a communication disorder that he thought had most likely contributed to his social anxiety disorder.[61] He opined that these things contributed to the Applicant misreading social cues and not realising the position he was placing himself in.
[60] Exhibit G1, Section 501 G documents, G5 page 193.
[61] Ibid, G5, page 194
Dr Palk considered that, even allowing for the Applicant’s communication disorder and social disorder, his IQ was still on the borderline, not at the intellectually disabled level but what is described as low intellect.[62]
[62] Transcript, page 65, lines 10 to 25.
In the Applicant’s revocation request, in relation to his risk of re-offending, he said:
“No risk of me saying things to people as I keep well away from young people and avoid them at all times”[63]
[63] Exhibit G1, Section 501 G documents, G2, page 81.
In a statutory declaration dated 12 May 2021[64] he expressed shame about the offending. He said since being incarcerated he had taken active steps towards rehabilitation and reflected on his actions. He had sought professional help for his mental health and he felt healthier, happier and more driven to lead a better life for his children, partner and family.
[64] Exhibit A13, Statutory Declaration of the Applicant declared 12 May 2021.
He said:
“I am disgusted by my past criminal behaviour and will never engage in the same behaviour, knowing the consequences associated with it”[65]
[65] Ibid, paragraph 24.
When the Applicant was asked what he felt remorse for, he said:
“I’m ashamed of what I did. I should have known better. My partner works with children and she is always telling me you can’t touch kids anywhere, you know. If you going to touch anyone you can only light touch on the arms. You know, I got a job at the school because I’d always wanted to be a school cleaner and I had my foot in the door and she says remember you know you can’t touch you know kids or anything. So yes, she always kept saying that, so I don’t make any mistakes.”[66]
[66] Transcript, page 30, lines 27 to 34.
He said this conversation with his partner occurred before the offending.
When the Applicant was asked if he agreed that his offending had hurt the victim and her family, he said yes and he was sorry for that.[67] Dr Palk noted in his May 2021 report that the Applicant had expressed deep sorrow for any harm caused to the victim, that he had displayed an understanding that his behaviour was inappropriate, and he had expressed a desire never to place himself in a similar situation again.[68]
[67] Transcript, page 32, lines 10 to 11.
[68] Exhibit A10, Psychologist Report of Dr Gavan Palk dated 9 May 2021, page 3.
When the Applicant was asked if he had tried to get some coaching on how to behave appropriately with children he said “No, no one’s even mentioned anything about that but I’ll do some coaching”.[69] When asked why he had not tried to get that sort of coaching he said he did not think of things like that and he thought it was a psychologist’s task to tell him what he needs.[70]
[69] Transcript, page 33, lines 15 to 28.
[70] Transcript, page 34, lines 4 to 10
In fact, Ms Elia subsequently gave evidence that in addition to treating the Applicant for his anxiety and distress, she had provided counselling aimed at preventing him from committing further offences. She said her therapy was impartial, and focused on supporting his emotional response and on educating him and helping him review and understand what had happened.[71] It included education around what was appropriate and not appropriate socially, especially around young girls. She said she thought the message had got through however it was difficult to tell because the Applicant’s disposition was “very blunted”[72]. From the Applicant’s evidence, it seems the message did get through as far as him realising where he went wrong at the time of the offending, however it seems that he does not feel confident about being around children going forward as his intention is to avoid children altogether.
[71] Transcript, page 58, lines 25 to 40
[72] Transcript, page 60, lines 20 to 38.
When asked how he could be confident that he would not reoffend. he said he would keep away from children, saying:
“While I was on bail I just - if I’m in the shops, if I see kids walking down with their parents I cross over to the other side. When I was out photographing I take pictures and show where the koala’s are and educate them but if they’ve got kids I’d walk away and go down a different path so I didn’t have to pass them. I just avoid being around kids now. I said [to Child A] the only kids I want to be around is you and my grandchildren, if I ever get to see them.”[73]
[73] Transcript, page 34, line 42 page 35, line 2
He said if his daughter had friends around, he would go out, that he is not interested in being around other children.[74]
[74] Transcript, page 35, lines 4 to 20.
While it may seem unusual and unrealistic to plan to avoid children on an ongoing basis, Dr Palk said that he advises all of the sex offenders he treats to avoid being alone with children, whether they are guilty or innocent, because once a person has that in their background, it is common sense to avoid situations where they could brush up against someone accidentally and it would be taken to have been done with sexual intent because of their history. He said it is a standard protective factor that he recommends for the rest of a person’s life.[75] Accordingly, the Applicant’s plan accords with expert advice. I note that it would not involve much change for the Applicant who was not interested in engaging in social situations with children before the offending.
[75] Transcript, page 75, lines 14 to 29.
The Applicant said that in order to better himself, he has arranged for continuous professional support from Dr Palk in terms of fortnightly meetings. Dr Palk confirmed this, adding that the sessions had not yet commenced due to COVID restrictions and him taking some personal leave.
In his May 2021 report, Dr Palk assessed the Applicant’s risk of reoffending as “exceptionally low considering his personality and overall lifestyle, remorse, and lack of previous offending”. He acknowledged that the Applicant had participated in psychological treatment since being charged and was aware of his mental health and social vulnerabilities. He had implemented strategies to ensure he would not place himself in a position that could lead to further offending.[76]
[76] Exhibit A10, Psychologist Report of Dr Gavan Palk dated 9 May 2021, page 12.
In the hearing, Dr Palk said that he did not think the Applicant would ever reoffend. He qualified that by saying that as a psychologist you “can’t say never never” because the measurement tools do not allow it, but you can say that the risk is exceptionally low both clinically and from a statistical point of view compared with other men the Applicant’s age who have committed similar offences. He believed that the Applicant was unlikely to ever put himself in a similar situation again and pointed to his fear of being away from his family as a strong motivator.[77]
[77] Transcript, page 69, line 42 to page 70, line 5.
Dr Palk’s identification of the Applicant’s family as a strong motivator accords with Ms Elia’s observation that when the Applicant started seeing her, he only wanted to be reunited with his family. She described his family as very close and supportive of each other.[78]
[78] Transcript, page 53, lines 7 to 15.
Ms S has been suffering psychological and emotional hardship since the Applicant’s arrest. Ms Elia described Ms S as presenting with a myriad of symptoms including excessive panic, fear and worry about her and Child A’s future, sadness and hopelessness, change in appetite causing weight gain, avoidance of normal everyday activities, catastrophising and obsessive negative thinking, restlessness, irritation and anger, bad dreams and nightmares, loss of interest in everyday activities, withdrawal from family and friends, concentration problems, churning gut pains, feeling disconnected and numb, mood swings, shock and denial, and hypervigilance towards other children together with fear of severe financial hardship. She diagnosed Ms S with an adjustment disorder with mixed anxiety and depression. She said the Applicant’s deportation would be devastating for the family unit, and would cause significant further strain, grief and trauma. The impacts on Ms S are somewhat militated by her supportive family.
The Applicant’s social and familial links, and the impact on Ms S of his removal from Australia, weigh significantly in his favour under paragraph 9.4.1(2)(b) of the Direction.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs significantly in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(e)international non-refoulement obligations: not relevant;
(f)extent of impediments if removed: limited weight in favour of revocation;
(g)impact on victims: neutral; and
(h)links to the Australian community: significant weight in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration 1 weighs to a limited extent in favour of non-revocation;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 weighs heavily in favour of revocation; and
·Primary Consideration 4 is neutral.
To the extent that Primary Consideration 1 weighs in favour of non-revocation, it is outweighed by the combination of Primary Consideration 3 and Other Considerations (b) and (d) which favour revocation.
Consequently, I exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal sets aside the decision made by the delegate of the Respondent on 5 March 2021 and exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
........................[SGD]................................................
Associate
Dated: 2 June 2021
Date of hearing: 20 and 21 May 2021 Solicitor for the Applicant:
Mr Tanguy Mwilambwe
Armstrong Legal
Solicitor for the Respondent Ms Emma Letcher-Boldt
Clayton Utz
ANNEXURE A – EXHIBIT LIST
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G13 pages 1 to page 285)
R
-
A1
Applicant’s Statement of Facts, Issues and Contentions
A
20 April 2021
23 April 2021
A2
Applicant’s Bundle of Identity Documents
A
-
23 April 2021
A3
Applicants Bundle of Character References
A
-
23 April 2021
A4
Briefing Letter to Dr Gavan Palk, Forensic Psychologist dated 3 March 2021
-
23 April 2021
A5
Psychological Opinion Report of Dr Gavan Palk, Forensic Psychologist dated 8 April 2019; and
A
8 April 2019
23 April 2021
A6
Addendum to Psychological Opinion Report of Dr Gavan Palk, Forensic Psychologist dated 31 August 2020
A
31 August 2020
23 April 2021
A7
Briefing Latter to Angela Elia, Registered Psychologist
A
21 April 2021
23 April 2021
A8
Applicant’s Supplementary Statement of Facts and Contentions
A
12 May 2021
12 May 2021
A9
Applicant’s Summons Material including Tender Bundle 1, Tender Bundle 2 and Tender Bundle 3.
A
-
12 May 2021
A10
Psychologist Report of Dr Gavan Palk dated 9 May 2021
A
9 May 2021
12 May 2021
A11
Psychologist Report of Angela Elia, Registered Psychologist dated 12 May 2021
A
12 May 2021
12 May 2021
A12
Statutory Declaration of Ms S declared 12 May 2021
A
12 May 2021
12 May 2021
A13
Statutory Declaration of the Applicant declared 12 May 2021
A
12 May 2021
12 May 2021
A14
Applicant’s Tender Bundle 4 - Further Summons Material
A
-
16 May 2021
A15
Applicant’s Tender Bundle 5 - International Health & Medical Services Records (IHMS)
A
-
17 May 2021
R1
Respondent’s Statement of Facts, Issues and Contentions
R
4 May 2021
4 May 2021
R2
Respondent’s Bundle of Summons Material (SM1 to SM2, pages 1 to page 14)
R
-
10 May 2021
1
9
0