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

[2020] AATA 391

NWQR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 391 (3 March 2020)

Division:GENERAL DIVISION

File Number(s):      2019/8478

Re:NWQR

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC 

Date:3 March 2020

Place:Sydney

The decision under review is affirmed.

........................................................................

Senior Member M Griffin QC 

CATCHWORDS

MIGRATION – mandatory cancellation of visa – citizen of Tonga – failure to pass character test – offending history – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed

LEGISLATION

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

SECONDARY MATERIALS

Migration Act 1958 – Direction no. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

REASONS FOR DECISION

Senior Member M Griffin QC

3 March 2020

BACKGROUND

1. NWQR makes application for review of a decision dated 9 December 2019 not to revoke the mandatory cancellation of the Applicant’s Bridging visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).

   ISSUES

2. The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)That the Applicant passes the character test as defined by section 501 of the Act; or

   (b)

   There is another reason why the original decision should be revoked

   
   

   (s 501CA(4)(b)).

3. In this matter, it is common ground that the Applicant does not pass the character test.

   RELEVANT LEGISLATION AND POLICY

4. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

5. Subsection 501CA(4) provides that:

   4) The Minister may revoke the original decision if:

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

   and

   b)the Minister is satisfied:

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

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

6. Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

7. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

8. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction no. 79 which commenced 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.

9. The Preamble of Direction no. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:

   (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;

   (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;

   (c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;

   (d)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;

   (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, 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; and

   (f)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.

10. Part C of Direction no. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

11. Pursuant to Part C of Direction no. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

12. The three primary considerations are:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

    Primary Consideration 1 – Protection of the Australian community

13. Paragraph 13.1 of Direction no. 79 provides:

    (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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    (2)Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

14. The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

    The nature and seriousness of the conduct

15. Sub-paragraph 13.1.1 of Direction no. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:

    a)the principle that violent and/or sexual crimes are viewed very seriously;

    b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;

    e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

    f)the cumulative effect of repeated offending;

    g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    h)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; and

    i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.

    The risk to the Australian community

16. Paragraph 13.1.2 of Direction no. 79 states that decision-makers must have regard, cumulatively, to the following:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

    Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

17. Decision-makers must make a determination in respect of each relevant child under 18 years about whether revocation is in the best interests of that child.

18. In considering the best interests of the child, the following factors must be considered where relevant:

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

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

    c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e)Whether there are other persons who already fulfil a parental role in relation to the child;

    f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    Primary Consideration 3 – Expectations of the Australian community

19. Paragraph 13.3 of Direction no. 79 provides:

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

20. The principles to be applied, as set out in paragraph 6.3 of Direction no. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.

21. The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.

    Other Considerations

22. The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties to Australia;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extent of impediments if removed.

    International non-refoulement obligations

23. The considerations at paragraph 14.1 of Direction no. 79 include (but are not limited to):

    (a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;

    (b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;

    (c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);

    (d)Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;

    (e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.

    Strength, nature and duration of ties

24. The considerations at paragraph 14.2 include:

    (a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;

    (b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.

    Impact on Australian business interests

25. Direction no. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (paragraph 14.3(1)).

    Impact on victims

26. Paragraph 14.4 of Direction no. 79 provides:

    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

    Extent of impediments if removed

27. The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.

    DISCUSSION

    Character Test

28. It is clear according to the Act that because the Applicant has a ‘substantial criminal record’ (s 501(6)(a) of the Act) he does not pass the character test.

29. The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.

    Background, facts and aspects of evidence

30. The Applicant was born on 28 May 2000 in Tonga, arriving with his family in Australia at the age of 12. He has lived in Australia since that time.

31. The Applicant was convicted of three offences of a serious sexual nature on 20 September 2018.

32. The facts in relation to these offences are agreed between the parties as being adequately stated by the learned sentencing judge in the following terms:

    The facts state that the victim was raised by her adoptive parents. At the time of the offending, her parents had 11 children. Together, the family resided at an address in Mount Druitt. The young person and the victim are cousins, being related by the young person’s mother and the victim’s father who are brother and sister. The family spent a lot of time together. Some time during 2014 the young person’s family moved into a house in Mount Druitt.

    In relation to count 1 on the indictment the facts recite that on one occasion between January 2014 and 28 June 2015, when the victim was visiting the young person’s house, the young person told her to go into the garage in the back yard. She went into the garage and the young person told her to take her pants down. The victim took her pants and underwear off. The young person pulled his pants down, exposing his penis.

    The young person told the victim to lay down next to the pool table within the garage. The victim laid down on the concrete and the young person started kissing her on the neck and lips. He then inserted his penis into her vagina. The victim felt sore in, she said, her “private parts” and tried to move away from the young person. As she did this, his penis came out of her vagina. He again placed his penis into her vagina, which caused her pain. The young person ejaculated onto the chest and clothing of the victim. The victim felt that her shirt became wet. She asked the young person if he had “peed” on her and he said he had not. The young person pulled his penis out of the victim’s vagina, pulled his pants up and left the garage.

    The facts pertaining to count 4 on the indictment are as follows. On the evening of Sunday 11 September 2016 the young person’s family was visiting the victim’s family. The victim, the young person and a sister of the victim were upstairs. The victim’s sister went downstairs and the young person and the victim remained upstairs. The young person told the victim to go into a room. He followed her in and closed the door. The young person told the victim to pull her pants down and lie down on the bed. He pulled his own pants down. He was wearing underwear that had “Wednesday” written on the waistband. The young person kissed the victim on her neck and lips and then engaged in penile-vaginal intercourse with her. The young person ejaculated on the victim. The intercourse lasted a short time and finished when someone called out to the young person. The young person told the victim to pull her pants up. He left the room for a short time and then briefly re-entered to tell the victim to hurry up. He then left with his family.

    The facts pertaining to count 6 on the indictment are as follows. The next day, Monday 12 September 2016, the young person attended the victim’s house with his mother and brother. During that time the young person asked the victim to go into a room. He entered the room after her, locked the door and put a chair against it. He told the victim to lie down on the bed. The young person pulled down his pants. The victim was still clothed. The young person had similar underwear as the previous day, this time with “Tuesday” written on the waistband. The young person began to rub his crotch area against the crotch area of the victim. The actions of the young person only ceased when the victim’s sister unlocked the door from the outside and tried to enter the room. The young person, startled, got up from the victim. He pulled up his shorts, walked over to the door and closed it, turned to the victim and said it was over because they had been interrupted.

1. On 3 November 2016, the Applicant’s father contacted his sister to say that the Applicant had admitted certain aspects of his offending behaviour. It is highly relevant in this case to note, as will be discussed in length in detail later, that the Applicant has not admitted the particularly serious offence in relation to Count 1 and continues to deny that it occurred. This carries particular significance as will be discussed later in relation to the acceptability and weight to be attached to the psychological report of Howell. Initially, the Applicant denied any involvement in any offending. A Domestic Violence Order was issued on 4 November 2016 and the Applicant was on bail from that date until he was sentenced on 20 September 2018.

2. The Tribunal recognises, in the Applicant’s favour, that during the course of bail, which contained stringent conditions, that the Applicant behaved in an exemplary matter, pursued work, sporting and social activities, and there is nothing whatsoever in his behaviour to suggest further criminal activity. Furthermore, the Tribunal, upon hearing the submissions from the Applicant’s counsel, accepts the proposition that since the offending behaviour, the Applicant has been a model citizen, a model prisoner and a model of proper behaviour in immigration detention.

3. The Tribunal was taken during the hearing to a vast amount of material in Exhibit 1 (the Applicant’s filed material) which all went to this issue.

4. The Tribunal accepts that this is some evidence, amongst other things, of the fact that the Applicant has reformed, that he has matured, been rehabilitated and that he represents virtually no risk of re-offending again.

5. On 20 September 2018, for the three offences for which the Applicant was convicted, a trial sentence was effectively 18 months in prison with a non-parole period of 11 months.

6. The learned sentencing judge found that the Applicant’s risk of re-offending was low and that he had “favourable prospects of rehabilitation”. The learned sentencing judge also found that the offending resulted from the Applicant’s “immaturity and his knowledge or lack of sexual development and issues of consent in the context of his strict upbringing in the family environment in relation to sexual matters”. The learned sentencing judge also accepted that the Applicant had gained a greater awareness of the need for consent, of the difference in ages and the issues relating to the lack of knowledge of sexual matters of young children of the age of the victim.

7. The Applicant’s mother, father and brother gave evidence and other family members, his siblings, provided statements. Two statements were provided from a Bishop of the Church. All of these statements suggest rehabilitation on the part of the Applicant. There is no reason to ignore these statements as a general proposition, although the Tribunal does not accept certain details of the Applicant’s brother’s evidence because the Tribunal considered evidence relating to the Applicant accessing pornography was untruthful. It was, in fact, quite contrary to the father’s evidence that the Tribunal accepted. The brother also did not understand the Applicant to have been convicted of any “rape-type” offences. The Tribunal, on another topic, accepts that prior to incarceration, the Applicant worked hard and contributed to Australian society. Furthermore, the Tribunal accepts that the Applicant has a job to go to should he remain in Australia and this offer of work may operate in a way to be preventative of future offending.

8. During the time that the Applicant was in custody serving a sentence, the Applicant was assessed on a number of occasions and was regarded as being low risk and that his behaviour was effectively exemplary. He was allowed to participate in community outings without incident.

9. Various persons associated with his period in custody, including his caseworker, Allison, psychologist Porter, and the Assistant Principal of the Education Unit spoke in glowing terms of his behaviour. He was regarded as expressing genuine remorse. The psychologist, Porter, opined that his conduct did not indicate a heightened risk of sexually inappropriate behaviour and that he did not present with “the impulsivity entitlement that precipitated the offence”. She felt he had gained “knowledge, skills and motivation to manage risk”.

10. During his time in immigration detention, there is nothing to suggest that his detention conduct can, in any way, be criticised.

11. The Applicant’s father is presently on a Bridging visa awaiting determination by the review of this Tribunal of his application for a Protection visa. The outcome of those proceedings will, of course, affect the entire family, including the Applicant should the Applicant’s father remain in Australia as a result of these proceedings. It is the Applicant’s present Bridging visa on account of his father that is the subject of cancellation giving rise to the arguments before this Tribunal.

12. The matter was heard on 24 February 2020 and the 84^th day is 3 March 2020. Supplementary submissions were made by the parties on 25 February 2020 in relation to the statement of one witness which was received in evidence on 25 February 2020 and the issue of International non-refoulement obligations.

    Protection of the Australian community (past conduct and future risk)

13. The offences committed by the Applicant are extremely serious and they were committed on three separate occasions. The victim was a child, aged between 5 and 7 years of age on the first occasion and 8 years of age on the second and third occasions which were separated by a day. The Applicant was between 13 and 15 years of age on the first occasion and was over 16 years of age on the third occasion. Two of the offences involved penile penetration of a young child’s vagina.

14. Although it is said that the Applicant suffered from a lack of maturity, these offences should be viewed in a proper factual context. By the time of the second and third offences, the Applicant was over 16 years of age and was attending a Catholic high school. Despite his attempts to disassociate himself from the actual circumstances of the commission of the offences, during the course of cross-examination, the Applicant should be regarded as being responsible for deliberate sexual behaviour involving penetration to a young child, his cousin. The Applicant was cross-examined in some detail at the hearing and was asked questions by the Tribunal.

15. The Applicant was evasive in his answers, some of which were risible, particularly in relation to his appreciation of the age of his cousin. In fact, the Tribunal concluded that the Applicant was being untruthful about the physical relationship with his cousin. On his own evidence, he was, although smaller than he is now, a physically well-developed teenager, particularly so by the age of 16 it may be inferred. The Applicant refused effectively to accept matters relating to the inequality between the two parties and the Applicant was evasive in his answers.

16. It should also be noted that although consent was a matter referred to by the learned sentencing judge and also referred to as having been discussed with the Applicant in the various psychological reports and during the course of his 14 sessions with the psychologist, it is actually hardly a relevant matter. A child, of such tender years as the victim, was simply incapable of giving or withholding consent. Because of the child’s age it is unthinkable, in the Tribunal‘s view, that in having regard to the Applicant’s offending behaviour that the seriousness of that behaviour should be diminished by lack of knowledge about the issues relating to consent. Rather, it is clear enough from the evidence that there was such an age difference between the parties and the fact of actual deliberate penetration of a young child, that these are the matters which should inform a view of the seriousness of the Applicant’s offending.

17. As to the question of whether the Applicant appreciated what he was doing was wrong, it is relevant to consider the facts of the third offence which included the Applicant deliberately placing a chair at the door to stop himself being interrupted. This speaks of both deliberateness and also an appreciation, in the Tribunal‘s view, that he understood his behaviour was wrong.

18. What is of greater concern is that the Applicant does not accept any of the facts relating to the commission of the first offence. He denies that offence completely, although he accepted some limited responsibility in relation to the facts comprising the second offence, Count 4. Nonetheless, he did not accept the most serious aspects of that offence for which he was convicted by the jury.

19. There is nothing in the report of Howell or any of the other psychological reports that deals with the Applicant’s failure to accept responsibility for Count 1 which involved penile penetration.

20. The Howell report, dated 21 June 2018, contains the following:

    The offence

    [The Applicant] indicated he pleaded guilty to one offence at trial and was found guilty of a second offence and not guilty to the third offence of aggravated indecent assault. He said he is currently bailed to his parent’s home.

    At the time the offences occurred [the Applicant] appears to have had little or no understanding of the potential consequences of his behaviour and when asked whether he thought he could get into trouble replied he thought he may get into trouble from his mother, however, appears to have had no understanding of the degree to which the behaviour was inappropriate. He had no knowledge of the issues of consent saying both the necessity of gaining consent and what constitutes consent were unknown to him at the time of the offences.

    During the interview [the Applicant] accepted his behaviour was wrong and expressed appropriate regret and remorse for his actions together with an acknowledgement his behaviour caused harm to the victim and her family. [The Applicant] identified his aunt as having reported the abuse to the Police saying he understands his behaviour has harmed his relationship with his aunt for which he feels “extreme sorrow”.

21. This, in the Tribunal‘s view, diminishes considerably the force of that report upon which so much of the Applicant’s case for rehabilitation and lack of future offending is based. The report is also deficient in this regard because it is apparent that the writer of the report spoke in vague details with the Applicant about the circumstances and facts in relation to the commission of the offences. The Tribunal considers the following matters relevant to the assessment of Consideration 1, in particular, the consideration of the risk of future offending.

    ·It is unsurprising that the learned sentencing judge considered that further preventative psychological treatment was important to ensuring the Applicant did not commit offences in the future. On the evidence, although the Applicant undertook 14 sessions of psychological counselling, when taken into immigration detention he did not pursue any further treatment. What is of concern, further, is that he said he did not continue with the recommendation of continuation of sexual counselling at Villawood because he “had a lot going on”. The Applicant delivered this evidence in a quite cavalier fashion evincing, in the Tribunal’s view, a real lack of commitment to the continuation of counselling.

    ·The Applicant’s family, the Tribunal accepts, are deeply committed, in part through their religious beliefs and partly because of their attitude to family, to attempting to ensure that the Applicant will not commit any further offences. The family, including the Applicant, are very much focused on keeping all of the family members together.

    ·The weight to be attached to the various psychological reports, particularly as they relate risk of re-offending and rehabilitation, is substantially diminished because:

    a)the Howell report did not address in any detail the circumstances of the Applicant’s offending

    b)the Howell report failed to address the fact, and therefore the consequences of, the refusal of the Applicant to accept his involvement in the most serious details of offending in relation to Count 1 and Count 4.

    ·The Tribunal accepts that there is compelling evidence subjectively given by the Applicant and also supporting objective evidence since the Applicant was on bail through to the time of hearing that the Applicant has behaved impeccably.

22. Although, prima facie, the Applicant’s rehabilitation and the likelihood of his re-offending is negligible, the Tribunal considers that this is to be viewed against the matters which have been dealt with above; in particular, the inadequacies of the Howell report and the failure of the Applicant to continue with sexual counselling, together with his so-called explanation of that failure.

23. The assessment of risk cannot of course be determined in any precise mathematical way. It is not amenable to any particular formula and Courts and Tribunals rely on the reports of suitably qualified experts and other relevant proven evidence. Even taking into account the commendable conduct of the Applicant referred to above, and the protective features of his parent’s commitment to him, nonetheless, on all the evidence, the Tribunal cannot be satisfied that the Applicant presents no risk of future offending.

24. Furthermore, the offences are so extremely serious, having been committed on three separate occasions, it cannot be said that this is isolated behaviour. The last two offences were committed when the Applicant was 16 years of age, and on the last occasion, there was a determined deliberateness in the Applicant’s offending by using a chair to block entry to the room where he was perpetrating the offence. Those offences were committed on a very young child, and there was a significant age difference between the parties. The Tribunal recognises that the Applicant did not enagage in any physical violence towards the victim.

25. At paragraph 36 of the Applicant’s Statement of Facts, Issues and Contentions, the following submission is made: “while the offences committed by the Applicant was serious there is no trend of increased seriousness”.

26. The Tribunal has taken into account the fact that this offending behaviour occurred on three occasions, the last two separated by a day, and the three offences overall as having occurred in a period alleged to be between when the Applicant was 13 and 16 years of age. On the evidence, the date of commission of Count 1 has not been able to be given with any precision.

27. The Tribunal takes into account that these were the only offences which the Applicant committed, albeit on three separate occasions over a period of perhaps some years. Nonetheless, there has been no trend towards increased seriousness of commission of offences obviously on the basis that these were the only offences the Applicant committed.

28. At paragraph 36 of the Applicant’s Statement of Facts, Issues and Contentions, the following submission is made: “the Applicant has accepted the severity of his offending and expressed remorse, shame and regret for his actions and that he lives in hope that one day he can be forgiven for what he did to an innocent young child who had done nothing wrong. His plan upon his release is to provide the victim and her family some assistance so they can have a better life.”

29. This submission is factually incorrect and quite erroneous. Far from accepting “the severity of his offending and expressing remorse, shame and regret for his actions”, the Applicant, at the time of the hearing, has failed to accept any responsibility for the most serious aspects of his behaviour in relation to Counts 1 and 2. This, the Tribunal concludes, goes not only to the question of remorse but is worryingly indicative of whether he presents a risk of future offending.

30. Reference was made during the course of the hearing to the fact that the Applicant’s youngest sister was questioned by police in December 2016 as to whether she had been sexually assaulted by the Applicant. What evidence was placed before the Tribunal was so entirely unsatisfactory and, in the Tribunal’s view, unable to be probative of any relevant fact, that the Tribunal has totally disregarded all evidence in relation to that matter.

31. The Tribunal’s view is that the offences committed by the Applicant are extremely serious. On all the evidence, the Tribunal is not satisfied that the Applicant presents minimal or no risk of re-offending.

32. In relation to Consideration 1, having taken all relevant matters into account, the Tribunal is thoroughly satisfied that Consideration 1 weighs very heavily against the Applicant.

    Best interests of minor children in Australia

33. There are three relevant children on the evidence who are siblings of the Applicant and who were born in 2004, 2006 and 2010 respectively. The Tribunal accepts that he is a quasi-parental figure and that his siblings regard him highly. Each one has provided a statement demonstrating what clearly is real affection and connection with the Applicant who, on the evidence, has a reciprocal relationship with his three female siblings (as well of course with other members of the family).

34. On the evidence, the Tribunal also accepts that there is a real determination amongst the family to remain together as a family and should the Applicant be returned to Tonga, this will have a significant impact on the three children and their ability to communicate with him via digital or other means. This can hardly be supposed to make up for the loss of him being physically present in their lives.

35. This consideration, overall then, weighs quite strongly in favour of the Applicant remaining in Australia.

    Expectations of the Australian Community

36. The Applicant makes the following submission:

    At paragraph 44 of the Applicant’s Statement of Facts, Issues and Contentions,

    In FYBR v Minister for Home Affairs [2019] FCAFC 185, the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a ‘norm’; it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations are deemed – they are what the executive government has set out are its views in the Direction, not values that may be gauged by some other independent process. The applicant accepts that the Tribunal is bound to assess the expectations of the Australian Community in this manner and the serious nature of the applicant’s offending means that this consideration weighs in favour of not revoking the cancellation.

37. It is of course not for the Tribunal to substitute its own view but to apply what Direction no. 79 sets out as the prima facie position which should be adopted or “the norm”. The seriousness of the Applicant’s offending which includes penile penetration on two occasions of a young child, eight years or younger, is so serious a matter that there are no other aspects of evidence in this case, including the accepted immaturity of the Applicant at the time of the commission of the offences, which would persuade the Tribunal that this consideration weighs in favour of the Applicant remaining in Australia.

    Other considerations

    International non-refoulement obligations

38. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

39. Both parties have made submissions in relation to this consideration.

40. The Applicant had made submissions that the Tribunal must consider on the material non-refoulement obligations.

41. The Applicant makes the following submission:

    The evidence of the applicant’s parents is that the applicant’s crimes will make him the subject of mocking and bullying in Tonga (exhibit 1 p18 and 21). The delegate accepted that the applicant’s father had been verbally abused by reason of his religious belief in Tonga. The combination of his religious belief and his criminal history will likely make him a target for abuse. To the extent that he was bullied this would be more serious than the verbal abuse which the applicant’s father was subjected to. The fact that there was some Refugee Convention nexus to that bullying is sufficient, even though there are other factors underlying it - see for example Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; 62 ALD 73 at [46] and [48], Finn and Dowsett JJ. In these circumstances the Tribunal should take into account that there are potential non refoulment obligations under the Refugees convention. Further the bullying would be intentionally inflicted and amount to cruel and degrading treatment. and Article 7 of the International Covenant on Civil and Political Rights (ICCPR). Non refoulment obligations under the ICCPR also arise. Because the applicant has been refused a Protection Visa he is currently prevented from applying for another Protection Visa while onshore by s 48A of the Act. Clauses 5 and 6 of Paragraph 14.1 of Direction 79 are applicable.

1. The Respondent’s submissions are as follows:

   1. These submissions are made pursuant to the Tribunal’s request on 25 February 2020 for the parties to provide supplementary submissions on the applicant’s representations on the claimed risk of harm if returned to Tonga, which were raised for the first time in the Applicant’s Reply filed on 14 February 2020.

   2. The applicant was a dependent applicant to his father’s application for a Protection (Class XA) visa filed on 25 January 2017 (Exhibit 1, pp 28, 32). On 29 September 2019, a delegate of the respondent (Minister) refused to grant the applicant’s father and the dependent applicants (including the applicant) a protection visa (Exhibit 1, pp 32-51). The applicant did not advance any individual protection claims before the delegate, instead relying on his claim that he is a member of the family unit of the primary applicant, his father.

   3. At paragraph [11] of the Applicant’s Reply, the applicant submits that he would be harmed by followers of other religions in Tonga due to his adherence to the Morman religion. He also refers to the delegate accepting that the applicant’s father had been subjected to verbal abuse from members of other religions in Tonga.

   4. In its discharge of its duties under s 501CA(4), the Tribunal is required to give meaningful consideration to the applicant’s representations on the claimed risk of harm if returned to Tonga.[1] Depending on the nature and content of the representations, the Tribunal “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.”[2]

   5. The Minister accepts that the applicant is a member of the Church of Jesus Christ of Latter-Day Saints (LDS) and a believer in the Morman religion. However, there is no evidence before the Tribunal to indicate that the applicant would be at risk of any physical harm if returned to Tonga due to his adherence to the Morman religion.

   6. The US Department of State International Religious Freedom 2018 report on Tonga (US Department of State report) indicates that in 2016, the LDS was the fastest-growing religious group in Tonga and comprised 19 percent of the total population (Exhibit 4, p 1). The Tongan constitution provides for freedom of religious practice, freedom of worship and freedom of assembly for all religious practices, and the law does not require registration of religious groups (Exhibit 4, p 2). The US Department of State report does not report any significant adverse societal activity affecting religious freedom in 2018, and notes that US Embassy officials had met with the Tonga National Council of Churches and representatives of the LDS to discuss the need to protect interfaith tolerance (Exhibit 4, p 3).

   7. According to the protection visa delegate’s decision dated 27 September 2019, the applicant’s father’s claims of harm due to his Morman faith centred on fights which occurred when he was growing up in Tonga (Exhibit 1, p 41). When asked to elaborate at the delegate interview, the father referred to being subjected to verbal abuse by followers of other religions and a brawl that occurred during a rugby match he was involved in while he was a high school student. It is unclear whether the brawl was motivated by religious intolerance or was merely an incident that occurred in the context of school sports rivalry. In any event, there was no reference to any subsequent physical attacks, and in light of the country information, there is nothing to indicate that the applicant would be subjected to any physical harm on account of his religious faith. Accordingly, the Minister submits that the Tribunal should find that the applicant is not at risk of physical harm on the basis of his adherence to the Morman religion and there is nothing to suggest that he is owed any non-refoulement obligations on this basis.

   8. The US Department of State report does not suggest any societal discrimination or religious tension towards persons of the Morman faith in Tonga. Insofar as the applicant may be at the receiving end of some form of verbal abuse from other individuals on account of his Morman faith, there is no evidence that this is a prevalent issue in Tonga or that the risk of such abuse is any greater than would exist in any other multi-faith community. The Minister submits that this is not a reason to revoke the mandatory cancellation of the applicant’s visa and does not give rise to any non-refoulement obligations.

   [1] Minister for Home Affairs v Omar (2019) 373 ALR 569 [2019] FCAFC 188 at [34] (Omar)

   [2] Omar 373 ALR at [39]

2. Should he be returned to Tonga, it is accepted by the Tribunal that the Tongan community, particularly the Church community of Latter-day Saints, is inevitably bound to discover that the Applicant has been convicted of serious sexual offences. The Applicant, the Tribunal is prepared to accept, does have fear of physical harm on the basis of his Latter-day Saints faith. This is likely to be outside a school context. The Tribunal accepts that members of the Tongan community, including his Church, will come to hear of the Applicant’s offending. Exhibit 4, the U.S. Department of State, does not report any significant adverse societal activity affecting religious freedom, as at 2018, although it is noted that the father gave evidence that he was the subject of some violence before coming to Australia.

3. Should the Applicant be “picked on and bullied” on his return to Tonga or fear physical harm as a basis of his Latter-day Saints faith, the Tribunal regards this potential physical and emotional harm, should it occur, as not a reason to revoke the cancellation of his visa. In the Tribunal’s opinion, it is not a matter which gives rise to non-refoulement obligations. In the religious context, this is particularly so where, on the evidence, the Latter-day Saints faith (Exhibit 4) comprise 19% of the total population and the Tongan Constitution provides for freedom of religious practice, worship and assembly. Such bullying, physical conflict or discrimination as there might be on all the evidence, does not lead the Tribunal to conclude this enlivens non-refoulement obligations.

4. A consideration of this matter leads to the conclusion that international non-refoulement obligations in this case do not apply although the issues of whether the Applicant may be bullied and discriminated against are relevant to the question of impediments if removed in relation to him being sent back to Tonga.

   Strength, nature and duration of ties

5. On the evidence at the time of the hearing, no member of the Applicant’s immediate family were “Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely” (paragraph 14.2 of Direction no. 79).

6. The Tribunal, however, considers that the Applicant’s ties to Australia are significant, having lived here for approximately 8 years since the age of 12. He went to school during that time and then worked prior to incarceration. In fact, his formative years have been spent living in Australia. His father has made an application for a Protection visa which is to be heard by this Review Tribunal. It cannot be said definitively that he will not be successful in that application. The Tribunal concludes that, having regard to the length of time that the Applicant has spent in Australia and the age from which he commenced to live in Australia, despite having committed offences during that time, are nonetheless matters which weigh in the Applicant’s favour in this consideration.

   Impact on Australian business interests

7. There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.

   Impact on victims

8. There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.

   Extent of impediments if removed

9. Although the Applicant is of Tongan descent and lived with his family in that type of cultural environment in Australia, nonetheless, having lived his formative years since 12 years of age in Australia, the Tribunal considers that it will be traumatic emotionally and socially for the Applicant to be returned to Tonga. Furthermore, although the Tribunal has formed a view about non-refoulement obligations, nonetheless, the Tribunal is of the view that there is the real likelihood of his reason for being returned to Tonga being made public, at the very least, within the Church community. Furthermore, the Tribunal accepts that either because of his religion or more likely because of the knowledge of his offending in Australia, or both, the Applicant is likely to be subject to harassment, ridicule and bullying, perhaps even with a physical component. The Tribunal does, however, recognise that the Applicant is of relatively large stature with a muscular build and has played competitive rugby from which the Tribunal concludes, he would not likely be physically intimidated. Taking all of these matters into account, it is the Tribunal’s view that this consideration weighs in the Applicant’s favour.

   CONCLUSION

10. There are a number of factors within various considerations discussed above which are in the Applicant’s favour, including particularly the evidence of his laudable behaviour since being charged whilst on bail and in custody and in immigration detention.

11. The Tribunal is of the view that the Applicant’s criminal conduct towards the young child by two instances of penile penetration which he still refuses to admit despite being convicted by a jury is particularly egregious.

12. The Tribunal considers that those matters referred to in Consideration 1 and Consideration 3, taken together, weigh so strongly against the Applicant that, in this case, on all the material, the Tribunal is satisfied that there is no other reason to substitute a different decision.

    DECISION

13. The decision under review is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 3 March 2020

Date(s) of hearing:	24 and 25 February 2020
Counsel for the Applicant:	Mr D. Godwin
Solicitors for the Applicant:	Ms M. Lewis, Teleo Immigration Lawyers
Solicitors for the Respondent:	Ms M. Donald, Sparke Helmore Lawyers