Peralta Montes and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3050

Peralta Montes and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3050 (28 August 2024)
Division:GENERAL DIVISION
File Number(s):2024/3799
JorgeIvan Peralta Montes
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Cipolla
Date:28 August 2024
Place:Sydney

The decision under review is set aside and in substitution the refusal of Mr Peralta Montes’ visa is revoked
....................[SGD]...............................................
Senior Member J Cipolla
CATCHWORDS
MIGRATION – refusal of Applicant’s Subclass 186 visa – serious offending – crimes of a sexual nature against a minor – refusal revoked
LEGISLATION
Migration Act 1958 (Cth) ss 501(1), 501(6)(a), 501(7)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
REASONS FOR DECISION
Senior Member J Cipolla
28 August 2024

Mr Jorge Ivan Peralta Montes (the Applicant) is 43 years old. He was born in Colombia. The Applicant has been a temporary resident of Australia since June 2008.
AUSTRALIAN IMMIGRATION HISTORY
The Applicant initially arrived in Australia as the holder of a Subclass 570 Student visa on 29 June 2008. This is a temporary visa that allows an Applicant to undertake study in Australia.
On 2 December 2008 the Applicant applied for a Subclass 572 visa onshore and was issued with a Bridging A visa whilst this application was being processed. A decision was made by the Department on 4 December 2008 that this visa application was invalid.
On 18 December 2008 the Applicant followed this up with an application for a further Subclass 570 visa which was granted to him on 8 January 2009.
The Applicant married his former wife, Ms Nancy Giraldo Correa, on 4 June 2009.
The day following his marriage to Ms Giraldo Correa on 5 June 2019, the Applicant applied for a Subclass 570 Student visa as a secondary visa Applicant, being a member of the family unit of Ms Giraldo Correa, the primary visa Applicant in this application. This visa was granted on 6 July 2009.
The Applicant subsequently held a number of Subclass 570 visas then a Subclass 572 visa and then a Subclass 573 visa, all of which were held as a secondary visa holder under the umbrella of Ms Giraldo Correa’s successive student visa applications that she had lodged as primary Applicant. These visas continued the Applicant’s temporary residency until 14 May 2014.
During the above period the Applicant left Australia on two occasions, on 10 November 2011, returning 17 January 2012, and again on 26 November 2014 returning 30 November 2014.
On 13 October 2015 the Applicant applied for a Subclass 457 Long Stay Business visa as a secondary visa Applicant, as a member of the family unit of the primary visa Applicant Ms Giraldo Correa. The Subclass 457 visa was granted to the Applicant as a secondary visa holder on 19 June 2015 and was valid until 19 June 2019.
On 14 June 2016 the Applicant applied as a secondary visa Applicant for a Subclass 186 ENS (Temporary Residence Transition) visa, on the basis of a primary application lodged by Ms Giraldo Correa for this substantive visa.
The evidence indicates that the Applicant departed Australia on 19 November 2016 and returned on 20 January 2017.
On 9 May 2017 the Applicant again applied as a secondary visa Applicant for a Subclass 186 ENS Temporary Residence Transition visa, on the basis of an application by Ms Giraldo Correa as the primary Applicant for this substantive visa. The Applicant was granted a Bridging A visa on the same day on the basis of this application.
On 7 July 2017 the first application made by the Applicant as a secondary visa Applicant for a Subclass 186 visa (the application of 14 June 2016) was withdrawn.
On 15 February 2019 the Applicant departed Australia and re-entered Australia on 16 March 2019.
On 19 June 2019 the Applicant’s Subclass 457 visa ceased. At this time the Applicant held a Bridging A visa.
A Bridging A visa enables a non-citizen to remain in Australia lawfully whilst they are awaiting the outcome of a visa application that is before the Department.
On 19 July 2019 a delegate of the Minister for Home Affairs cancelled the Applicant’s Bridging A visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The Applicant sought merits review of the decision to cancel his Subclass 010 Bridging A visa with the Administrative Appeals Tribunal (AAT).
On 30 September 2019, the AAT (differently constituted), affirmed the Departmental decision to cancel the Applicant’s Bridging A visa. The Tribunal in its decision determined that the ground for cancellation under s 116(1)(e) of the Act existed and having regard to the relevant discretionary considerations determined that the visa should be cancelled.
The evidence before the Tribunal indicates that the Applicant was granted a Bridging E visa on 17 January 2020.
The Applicant applied for a Subclass 866 Protection visa on 13 February 2020. The Applicant made claims that he could not return to his country of nationality, Colombia. A Departmental delegate refused the application in a decision made on 3 September 2020 finding that the Applicant was not owed protection obligations by Australia with respect to s 36(2)(a) of the Act. The delegate further found that the Applicant was not owed supplementary protection obligations with respect to s 36(2)(aa) of the Act.
The delegate made conclusive findings that they could not be satisfied that there “are substantial grounds for believing that, as a necessary and foreseeable consequence of Jorge Ivan PERALTA MONTES being removed to Colombia, there is a real risk they will suffer significant harm as defined in s 36(2A) of the Act. Therefore, Jorge Ivan PERALTA MONTES is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.”
The Applicant did not pursue merits review of the decision of the delegate to refuse his protection visa application.
THE APPLICANT’S OFFENDING AND CRIMINAL HISTORY
Prior to coming to Australia in 2008 the Applicant had no criminal history in his country of nationality, Colombia.
Prior to his offending in May 2019 the Applicant had no criminal antecedents in Australia.
On 26 May 2019 the Applicant was charged with sexual offences involving a minor as well as other offences with respect to attempting to pervert the course of justice and procuring a witness not to attend court. As a consequence of these charges, the Applicant was remanded in custody.
On 17 February 2020 the Applicant was released from criminal custody on bail and granted a Subclass 050 Bridging E visa associated with his application for a Subclass 866 protection visa.
The Applicant was charged with a breach of bail offence on 4 August 2020, namely a breach of an apprehended violence order which had been put in place since the time of the offending in May 2019. The breach occurred when the Applicant attempted to contact his former wife, who happened at the time of the phone call, to be attending Ashfield Police Station where she was providing a statement to police as a crown witness in the Applicant’s upcoming criminal trial.
As a consequence of the breach of bail on 4 August 2020, the Applicant was arrested and taken into remand custody and was bail refused.
The Applicant was indicted on four counts with respect to his offending and was tried before the New South Wales District Court in March 2021.
Count one was intentionally sexually touching the complainant, his 17-year-old stepdaughter (contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW); count two was intentionally carrying out a sexual act towards the complainant (contrary to s 61kf (1)(a) of the Crimes Act); counts three and four related to the Applicant’s attempts to pervert the course of justice by contacting the complainant’s mother to procure the complainant not to attend court as a witness, and to discourage the complainant’s mother from reporting to the police (contrary to ss 323 and 319 of the Crimes Act respectively).
The Applicant was convicted on counts 2-4. Count 1, the intentionally sexually touching the complainant charge was dismissed.
The Applicant remained in remand custody until he was sentenced by the District Court of New South Wales in June 2021 with respect to his offending.
The Applicant was sentenced by the District Court to a full time custodial aggregate sentence of 4 years, with an aggregate non-parole period of 2 years, expiring 8 November 2021.
The Applicant’s Bridging E visa expired whilst he was serving his full-time custodial sentence.
A final apprehended domestic violence order (ADVO) was issued with effect to 30 March 2024 with respect to the Applicant’s stepdaughter and his former wife.
THE APPLICANTS OFFENDING
With respect to the Applicant’s offending in Australia the evidence before the Tribunal indicates that up until the time of the offending, the Applicant and his ex-wife resided in a three-bedroom unit in Sydney, that was shared with the Applicant’s stepdaughter, their biological daughter, and at the time of the offending the third bedroom was occupied by a flat-mate from Colombia.
The Applicant and his ex-wife and their then 5-year-old daughter occupied one bedroom, the Applicant’s stepdaughter (17 at the time of the offending) occupied the second bedroom. The Colombian flat mate occupied the third bedroom.
On 26 May 2019 the Applicant and his ex-wife had guests attend their unit for a barbeque that started in the late afternoon at 5.30pm. The evidence before the Tribunal indicates that a significant amount of alcohol was consumed between that time and 3.20am the next morning. The Applicant later described his intoxication level as being 10 out of 10.
The evidence adduced at hearing indicates that the Applicant initially consumed beer and his ex-wife initially consumed wine, however as the evening progressed, both switched to spirits, predominantly tequila which led to the Applicant and his ex-wife becoming significantly intoxicated. Indeed, the evidence adduced at hearing indicates that the over-consumption of alcohol led to the Applicant’s ex-wife passing out whilst sitting on the toilet with her pants around her knees.
The evidence indicates that the 17-year-old stepdaughter, and her boyfriend, returned to the family residence around midnight after being out for the night. The evidence indicates that the stepdaughter and her boyfriend had consumed alcohol during their evening out together. When they returned to the family home, they joined other guests in consuming ‘a few vodka drinks’ on the balcony. The Applicant’s police record of interview did not form part of the bundle of documents, for reasons unknown to the Tribunal. The police facts sheet indicates that the victim of the offending, the stepdaughter, despite her consumption of alcohol was ‘not well affected’ by alcohol.
At around 3.20am the festivities were continuing and the Applicant’s youngest daughter, came out to the unit’s balcony where guests had gathered to ask whether her stepsister, could put her to bed. The police facts sheet confirms that it was common practice for the Applicant’s daughter to sleep in her parent’s bedroom and in the circumstances of this evening both the daughter and stepdaughter fell asleep on the Applicant and his ex-wife’s marital bed. Evidence adduced at hearing indicates that at the time of the offending the daughter slept in her parent’s bedroom in a single bed.
As noted there is no record of the police interview between the Applicant and New South Wales Police that had been tendered into evidence before the Tribunal. Evidence adduced at the review hearing was that the Applicant was arrested by police at 3.30am and removed from the family home after the offending and taken to Burwood Police Station in an intoxicated state at around 4am in the morning. The Applicant was placed in a holding cell and slept until around 11am the next morning. He was interviewed by police at 1pm for about 1 hour. No interpreter was present for the interview despite English being the Applicant’s second language, and the Applicant did not have a support person or lawyer with him during the questioning, despite his request to have one.
The police facts sheet indicates that the stepdaughter and daughter quickly fell asleep fully clothed on top of the bed and that the stepdaughter turned the main light off but left a side table lamp on. The evidence adduced at hearing from the Applicant was that both the stepdaughter and daughter were not on top of the bed but under the blankets and that in his intoxicated state he could not determine that it was his daughter and stepdaughter under the blankets and assumed it was his wife.
The Applicant is recorded as having entered his bedroom at 3.25am, closing the door behind him and then engaging in the criminal conduct for a period of two minutes. Conduct for which he was eventually charged, convicted, and gaoled.
At hearing from the Applicant claimed that the police facts sheet was not an accurate recitation of what transpired. The Applicant claims that his stepdaughter and daughter were both under the covers. The Applicant claims that he was of the belief that it was his wife in the marital bed. The accused gave evidence that his sexual performance was adversely impacted by alcohol consumption and that he was masturbating in order to obtain an erection in preparation for engaging in what he believed was going to be consensual sex between himself and his ex-wife. The Applicant gave evidence that his ex-wife was very critical of him if he was unable to perform sexually. The Applicant’s account is that when his stepdaughter awoke, he was shocked by the fact that it wasn’t his wife in the bed, that he stopped masturbating, and left the room.
The offence committed, led to the Applicant being charged with Aggravated-carry out sexual act with another person (a minor) without consent. Further offending namely, attempts to pervert the course of justice arose from the initial offending, and led to further charges being laid. In due course the Applicant was convicted of three of the four charges laid, the initial charge of Aggravated-carry out sexual act with another person without consent and charges of attempting to procure a potential witness (his ex-wife) from being a potential witness in criminal proceedings and discouraging his ex-wife in making a statement to police. As noted, the charge of touching his stepdaughter was thrown out by the Court at trial.
The Police facts sheet notes that the offending for which the Applicant was charged occurred at 3.25am and the time of the Applicant’s arrest by police is noted to be 3.30am, some 5 minutes after the offending, suggestive of a questionably rapid police response to the incident.
The court documents which have been tendered to the Tribunal as part of this review indicate that the Applicant submitted that there were several factors that contributed to his conduct that he wanted placed before the court. These factors were that his offending came about as the result of mistaken identity and that when he entered the marital bedroom, he believed the person in bed was his wife and not his stepdaughter and biological daughter. The Applicant claimed that the victim, his stepdaughter, did not usually sleep in this room and had, as has been noted, her own bedroom. In addition to this the Applicant claims he was heavily intoxicated by alcohol and submitted that his intoxication influenced and indeed impaired his judgement. The Tribunal notes that the sentencing judge did not see the Applicant’s state of intoxication as a considered circumstance in mitigation and that in the view of the judge it did not reduce his moral culpability.
The Applicants former wife initiated divorce proceedings, post the offending, which were finalised with effect from 25 September 2022.
Since the expiration of his full-time custodial sentence the Applicant has been detained in immigration detention at Villawood in Sydney.
Refusal of Applicant’s visa under s 501(1) of the Migration Act.
On 5 June 2024, a decision was made by the Minister considering then Direction No. 99, to refuse to grant a Subclass 186 Employer Nomination (Permanent) (Class EN) visa to the Applicant under s 501(1) of the Act, on the basis that the Applicant did not pass the character test. This is the reviewable decision.
The Applicant lodged an application for review of the reviewable decision with the Tribunal on 11 June 2024. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The Applicant’s representative provided the Tribunal with the Applicant’s statement of facts, issues and contentions dated 19 July 2024.
The Applicant provided the Tribunal with a statement with respect to the application before the Tribunal dated 2 August 2024.
The Applicant’s representative provided the Tribunal with a statement from the Applicant’s ex-wife Nancy Lorena Giraldo Correa dated 9 July 2024.
The Applicant’s representative provided the Tribunal with evidence of the Applicant engaging with international health and medical services in the Villawood Detention Centre between 2023 and 2024.
The Applicant’s representative provided the Tribunal with a certificate issued to the Applicant for completing a course on child-abuse recognition, investigation and protection, issued on 30 June 2024.
The Tribunal received the Respondent’s statement of facts, issues and contentions dated 1 August 2024.
The Tribunal has also been provided with the Respondent’s chronology pertaining to the matter before the Tribunal (Exhibit 7). DCJ summons documents (Exhibit 8). New South Wales police force summons documents (Exhibit 9) and G documents G1-G 25 pages 7-672 (Exhibit 10).
The Tribunal has given due consideration to these documents.
For the following reasons, the Tribunal has decided to revoke the visa refusal.
THE REVIEW HEARING ON 7 AND 8 AUGUST 2024.
The Tribunal conducted a review hearing on 7 and 8 August 2024. The Applicant attended the review hearing and was represented by Mr Northam, solicitor with Northam Lawyers. The Minister was represented by Mr Gauci from Hunt and Hunt Lawyers.
At the outset of the review hearing the Tribunal explained to the Applicant that it was reviewing a decision by the Minister to refuse his subclass 186 visa under s 501(1) of the Migration Act on character grounds. The Tribunal noted for the benefit of the Applicant that the AAT was an independent review body set up by the Australian government to conduct reviews of Federal government decisions. The Tribunal noted that it was tasked with carefully reviewing the written and oral evidence before it and determining the correct and preferable decision in the review applying the relevant legal considerations. The Tribunal and the parties to the review hearing were assisted by an accredited Spanish interpreter. The Applicant used the interpreter for the entirety of the hearing.
Mr Northam and Mr Gauci advised the Tribunal that they did not have opening statements and they were both reliant on their respective statement of facts, issues and contentions that had been provided the Tribunal.
Mr Northam examined the Applicant. The Applicant advised that his full name was Jorge Ivan Peralta Montes and that he was born on 6 June 1981 in Colombia. The Applicant advised that he was currently residing at the Villawood Detention Centre.
The Applicant advised that he first came to Australia on 29 June 2008. The Applicant advised that he had lived in Australia on a continuous basis since that time.
The Applicant stated that they met and commenced a relationship with his ex-wife in 2005 in Colombia and that the relationship grew and that the couple decided to relocate to Australia.

The Applicant stated that he had a paternal relationship with his 11-year-old daughter and that he looked after her as a father should and he described it as a relationship of respect and care.
Mr Northam noted that the Applicants ex-wife Nancy had a daughter from a former relationship and the Applicant confirmed that that was the case. Mr Northam asked the Applicant whether he had a positive relationship with his stepdaughter and he advised that he had always had a positive relationship with her, he added that she came to Australia in 2016 when she was approximately 14 years old. Mr Northam asked the Applicant what sort of visa his stepdaughter came to Australia on, and the Applicant stated that the family were secondary visa holders and were all part of Nancy’s visa as primary visa holder. The Applicant noted that his stepdaughter’s father died when she was very young.
Mr Northam asked the Applicant about the offending. The Applicant advised that he and his family resided in a 3-bedroom, 2-bathroom, apartment. The Applicant advised that his stepdaughter had her own bedroom and that his daughter slept in the master bedroom in a separate single bed. A friend of his ex-wife who had recently arrived from Colombia occupied the third bedroom.
The Applicant stated that on the night of the offending incident, he and his ex-wife were hosting a party with a number of friends, and they were sharing food and alcohol. The Applicant stated that some friends came over with their families comprising a number of children. The Applicant stated that his stepdaughter came home after being at another party and she arrived at the residence around 11pm and joined the other guests with her boyfriend. The Applicant stated that he and his ex-wife continued with the party until very late, around 3:30am, at which time some friends decided to leave and go home. The Applicant stated that they were wanting to finish with the party.
The Applicant stated that he made a decision to go to his bedroom looking for his wife. The Applicant claims that when he got to the bedroom, he found a person in the bed under the blankets. Mr Northam asked the Applicant whether he saw the person’s hair and he advised that he did not because they were completely covered by the bedlinen. Mr Northam asked the Applicant whether he could tell whether it was a he or a she in the bed and the Applicant stated he assumed it was his wife. Mr Northam asked whether anyone slept in the marital bed apart from the Applicant and his ex-wife. The Applicant stated just he and his ex-wife and that his daughter from time to time would get into bed with her parents. Mr Northam asked the Applicant whether his daughter had her own bed in that room, and he confirmed that she did.
The Applicant stated that he and his ex-wife would often have intimate relationships after a party or the consumption of alcohol. The Applicant stated that he pulled his trousers down, unzipped his pants and attempted to obtain an erection by masturbating. The Applicant stated that when he was engaged in this action, he did not know it was his stepdaughter in the bed. The Applicant claims that when his stepdaughter woke up and saw him in a compromised position she asked him to stop. The Applicant stated that he stopped and that he was surprised and shocked it was his stepdaughter in the bed. The Applicant reiterated that he stopped his actions immediately and that his stepdaughter got out of the bed looking for her mother. The Applicant stated that he left the bedroom, and he found his stepdaughter and his ex-wife in the central bathroom. The Applicant stated that he was extremely embarrassed that it was his stepdaughter in his bed.
Mr Northam asked the Applicant whether the first time that he realised it was his stepdaughter in the bed was when she sat up and the Applicant confirmed that this was correct. Mr Northam asked the Applicant when he realised it was his stepdaughter in the bed whether he stopped masturbating and he advised that he did. Mr Northam noted that the evidence indicated that the Applicant found his wife passed out in the bathroom. The Applicant confirmed that this was correct and that she was asleep in the bathroom due to the overconsumption of alcohol during the party.
The Applicant stated that they both abused alcohol on that night and that they mixed their alcoholic drinks with completely ‘disastrous consequences’. Mr Northam noted that the evidence indicated that after the incident the Applicant said something to his ex-wife about not going to court and a statement being provided. The Applicant confirmed that this was correct.
Mr Northam noted that it was now a number of years ago since the offending and asked the Applicant how he felt about his convictions. The Applicant stated “I feel complete remorse for my actions. I feel I was immature and irresponsible; this should not have been done it was completely wrong and I apologise for that.”
Mr Northam asked the Applicant whether prior to the offending in May 2019 the Applicant had any other criminal offences. The Applicant advised that he did not have a criminal record at all.
Mr Northam noted that the evidence indicated that when the Applicant was living in Colombia he served in the military and the Applicant confirmed that this was the case. Mr Northam asked the Applicant whether he experienced any disciplinary problems or issues whilst he was serving in the military. The Applicant stated that he did not.
Mr Northam noted that whilst the Applicant was in jail and since his placement in immigration detention that he had undertaken some courses. The Applicant stated that he wanted to clarify something namely that when he was in jail there were no courses available because of the Covid 19 pandemic. The Applicant stated that since he had been in Villawood he had sought some help through the IHMS service in Villawood and that the service provided psychological assistance and courses.
Mr Northam asked the Applicant whether he had undertaken any counselling in detention. The Applicant stated that he engaged with a counsellor every two weeks. Mr Northam asked the Applicant whether he saw a counsellor of his own volition or whether he was required to engage with one. The Applicant stated that programs in Villawood and access to clinical services in Villawood were completely voluntary.
Mr Northam asked the Applicant whether he experienced any disciplinary problems whilst he was in jail or since he had been in the Villawood Detention Centre and the Applicant stated that he experienced no problems.
Mr Northam noted that evidence before the Tribunal included a record from the Villawood Detention Centre with respect to an incident in which the Applicant was attacked by 2-3 detainees. The Applicant stated that this incident occurred at the beginning of 2023 and that other detainees in the detention centre were causing trouble about food. The Applicant stated that people were fighting, and he tried to separate a person who was being attacked by others. He stated that after he stepped in to defend the detainee that was being attacked, the group retaliated against him and jumped on him from behind and knocked him to the floor. Mr Northam asked whether there had been any other incidents in Villawood and the Applicant stated there had not.
Mr Northam asked the Applicant about his relationship with his daughter whilst in prison and whilst in detention. The Applicant stated that when he was in prison that an apprehended violence order was put in place by the police. The Applicant stated that since he had been in the Villawood Detention Centre, and since the most recent apprehended violence order had lapsed, he now has meaningful contact with his daughter which he described as being ‘very beautiful’ because they had been apart for so long. The Applicant stated that he would also contact his daughter through video calls since he had been in Villawood Detention Centre.
Mr Northam asked the Applicant to describe the relationship that he had with his daughter since he had been in immigration detention. The Applicant stated that he would regularly contact his daughter to check on her welfare. The Applicant stated that his relationship with his daughter had always been one based on care and love. He advised that his daughter was always happy to communicate with him and that she also came to see him in face-to-face visits from time to time at the detention centre.
Mr Northam asked the Applicant whether his ex-wife Nancy continued to support his relationship with their daughter. The Applicant stated that he had always been a good father and a responsible father and that he put his daughter’s needs in front of his own.
Mr Northam asked the Applicant whether his ex-wife Nancy had ever expressed that the Applicant was a danger to his daughter. The Applicant stated that his ex-wife had never expressed anything like that to him and that she would have no reason to be fearful. The Applicant stated that his contact with his daughter was always respectful, and the Applicant stated that he had never engaged in behaviour such as the behaviour that occurred in May 2019. Mr Northam asked the Applicant how often he had communicated with his daughter in the last six months and the Applicant stated on a daily basis through video calls. Mr Northam asked the Applicant whether his ex-wife supported this communication and he advised that she did, and they would speak on Nancy’s phone. Mr Northam asked whether Nancy was part of these conversations and he said it was usually all of them together.
Mr Northam asked the Applicant if he was allowed to stay in Australia what role he envisaged he would have with his daughter. The Applicant stated the first thing that he wanted to do was to help in her development emotionally and psychologically. He advised he always wanted her to be a great person, to undertake university studies and to be a prosperous person. Mr Northam asked the Applicant if he was allowed to stay in Australia what his plans were with respect to employment. The Applicant stated that he would go back to construction which is the area that he was working in prior to his incarceration and that he would like to try to get a license in rendering.
Mr Northam asked the Applicant whether there were any impediments to him returning to Colombia. Mr Northam noted that as part of the Applicant’s military role in Colombia he had been engaged in fighting against the FARC guerrillas. Mr Northam asked the Applicant whether he could tell the Tribunal whether his military career and military activities against FARC could create problems for him if he returned to Colombia. The Applicant stated that the situation in Colombia is dangerous due to violence and drug trafficking. The Applicant stated that being in the military ‘may’ cause him some problems and animosity with these organisations.
Mr Northam noted that the Applicant made an application for a protection visa in February 2020 that was refused by the Department of Home affairs on 3 September 2020. Mr Northam asked the Applicant whether his protection visa was with respect to his military service or something else. The Applicant stated that it was because of his military service. Mr Northam noted that the Applicant’s protection visa was refused by the Department of Home Affairs because the Department determined that his claims did not deserve protection from Australia. The Applicant confirmed that this was the case. Mr Northam asked the Applicant whether he still had concerns if he was returned to Colombia because of his military service. The Applicant stated that was correct, it is obvious due to social problems happening in Colombia. The Applicant stated that it is well-known because of all the violence in Colombia that organisations operate outside the law and look for people who had been in the military.
Mr Northam asked the Applicant whether he stood by his concerns that there may be problems for him if he returned to Colombia. The Applicant stated that he believed it could be disastrous and that “where there is violence, life is shaken.”
Mr Northam asked the Applicant whether his concerns about returning to Colombia went beyond concerns around employment and housing. The Applicant stated that his concerns do go beyond that because once a person is over 40 it is very difficult to find work in Colombia.
Mr Northam asked the Applicant whether he had any family in Colombia and he advised he is an only child, that his parents resided in Colombia and that they were old already. He stated that his mother was 74 and his father was 70. Mr Northam asked the Applicant whether his parents were working or retired, and the Applicant stated that they were both retired. Mr Northam asked the Applicant whether his parents could support him if he returned to Colombia, and he advised that as they live on a small state pension that it would be difficult for them to provide support to him.
Mr Northam noted that the Applicant had probably heard through news networks and public discussions that there were new rules with respect to reviewing character decisions of the Minister and that these rules can be found in Ministerial Direction 110. Mr Northam noted that a major change to the Ministerial Directions was that a decision maker needed to prioritise the protection of the Australian community amongst all other considerations. Mr Northam noted that people may have been brought back to Villawood Detention Centre because of a reversal of a decision that had been made with respect to their character. The Applicant stated that he had seen people return to detention. Mr Northam noted that keeping in mind the protection of the community is very important how the Applicant could assure the Tribunal that he would not be a danger to the community. The Applicant stated that he had always been a respectful person and that he had always respected the laws of Australia. The Applicant stated that he had never behaved like the night of the offending in his life and had always been a productive person in Australian society. The Applicant stated that he always worked very hard for his employers in order to provide financial support to his family. The Applicant stated that he would like to say that he would never engage in this type of behaviour again and that he would never reoffend in the community.
The Applicant stated that he accepted what he did was wrong and that he is very remorseful for his actions and that he wants to be a part of his daughter’s life.
Mr Gauci cross examined the Applicant.
Mr Gauci noted that the Applicant gave evidence about his relationship with Nancy and that he was married to her in 2009 and that he had been a stepfather to Nancy’s daughter since 2009 when she was 7 years old.
Mr Gauci asked the Applicant whether he had played an important role in his stepdaughter’s upbringing, and he advised that he had. Mr Gauci noted that the Applicant was in a position of trust with his stepdaughter, and the Applicant advised that he was. Mr Gauci noted that the offending behaviour occurred when the stepdaughter was 17 and the Applicant confirmed this. Mr Gauci noted that the Applicant was a powerful figure for his stepdaughter, and the Applicant confirmed this. Mr Gauci noted that the Applicant gave evidence about the night in question with respect to the offending and his evidence that his stepdaughter was under the blankets in the bed and the Applicant advised that this was the case. Mr Gauci asked the Applicant whether his stepdaughter was on top of the blankets and the Applicant stated that she was under them.
Mr Gauci asked the Applicant when he took off his trousers and began to masturbate whether he was close to the bed. The Applicant stated that he did not take his trousers off and that he could not judge the distance that he was from the bed. Mr Gauci noted that the Applicant’s evidence was that he had taken his pants down and his penis out. The Applicant stated that he had taken his penis out and that he had unbuttoned the buttons on his trousers as he was getting aroused to have sex with his wife. Mr Gauci asked the Applicant when he was touching himself whether he was facing the person in the bed and the Applicant stated that he did not remember whether the occupant of the bed was in front of him or not.
Mr Gauci noted that the stepdaughter sat up and said “stop’. Mr Gauci asked the Applicant whether he stopped straight away, and he advised that he did. Mr Gauci asked the Applicant whether he only stopped after the stepdaughter left the room. The Applicant stated that she sat up on the bed and he was in shock when he saw that it was her in the bed and that she got up and walked out of the room. Mr Gauci asked the Applicant what size the bed was and he advised it was a queen size bed. Mr Gauci asked the Applicant whether he noticed a second person in the bed and the Applicant stated he did not, because the occupants of the bed were under the blankets. Mr Gauci asked whether it was the case that the blankets were over their heads and the Applicant stated their entire bodies were covered by blankets. Mr Gauci noted that the second person in the bed was his daughter. The Applicant confirmed that it was his daughter. Mr Gauci noted that the fact that there were two people in the bed did not stop him doing what he did. The Applicant stated that he believed that it was Nancy, his ex-wife in the bed, and that if his stepdaughter was in the bed he did not notice until she got up.
Mr Gauci asked whether his daughter slept in the same bedroom as he and his ex-wife and the Applicant confirmed that she did. Mr Gauci asked the Applicant whether he checked whether his daughter was in her bed and the Applicant stated that he did not notice. Mr Gauci asked the Applicant whether his actions caused his daughter some harm and he advised that “yes it was disastrous for my daughter.”
Mr Gauci asked the Applicant whether he stopped his stepdaughter and Nancy leaving the bathroom. The Applicant stated when his stepdaughter went to the bathroom to look for her mother, Nancy had her pants below her knees.
Mr Gauci noted that the evidence indicated that the drinking started at 5:30pm and the offending occurred around 3:30am and that the Applicant had been drinking for about 10 hours. The Applicant stated that his ex-wife started drinking wine and that he started drinking beer and that as the event progressed, they moved to stronger alcoholic drinks, predominantly tequila. The Applicant stated that his ex-wife ended up in the central bathroom with her pants around her knees and was sitting on the toilet and had fallen asleep on the toilet due to her being inebriated.
Mr Gauci asked the Applicant whether he said to his stepdaughter words to the effect of ‘don’t make it any bigger than it really is.’ The Applicant stated that he was trying to explain to her it was a problem, that he was confused with who was in the bed and it was his mistake.
Mr Gauci asked the Applicant whether his stepdaughter stated that she was going to call the police and he advised that she did. Mr Gauci asked the Applicant whether he dared his stepdaughter to call the police and he advised he did not and that she made a decision to call the police herself.
Mr Gauci asked the Applicant whether he was angry at the time and the Applicant stated that he was confused about what was happening because of his state of intoxication. Mr Gauci noted that the police came and spoke to him, and the Applicant confirmed that this was the case. Mr Gauci noted that the Applicant gave earlier evidence about mistaken identity. Mr Gauci put to the Applicant that he did not tell the police about the mistaken identity at the time he was questioned. The Applicant stated that he tried to tell them that and that he did not do his best job in this respect. Mr Gauci asked the Applicant whether he had an interpreter when he was speaking with the police and he advised he did not.

Mr Gauci made reference to document G5 page 121 (Exhibit 10) part of the police facts sheet. Mr Gauci noted that the fact sheet recorded that “the accused admitted that he entered his bedroom knowing that his five-year-old natural daughter and seventeen-year-old stepdaughter were on the bed of his bedroom.” The accused further admitted that he masturbated in the presence of both victims, whilst facing towards them both. The accused admitted that he did “touch” his seventeen-year-old stepdaughter whilst he was masturbating and that he had “bad thoughts”. When asked further questions in relation to his “bad thoughts” the accused stated, “maybe I wanted to have sex with her”.
The Applicant was invited by Mr Gauci to comment on the excerpt from the police facts sheet. The Applicant stated that he agreed with what was there, but he disagreed that he touched his stepdaughter. Mr Gauci asked the Applicant whether the rest of the paragraph was an accurate recitation of the interview with police and the Applicant stated, ‘yes correct’.
Mr Gauci noted that the Applicant only raised mistaken identity after he was taken into custody. The Applicant was invited to comment. The Applicant stated, “no when I received the brief of evidence that is when I read about the allegations, and I tried to piece it together.”
Mr Gauci noted that the Applicant had been the subject of bail conditions and the Applicant confirmed that this was the case, and that he was not to contact Nancy. Mr Gauci noted however, that the Applicant did contact Nancy and the Applicant confirmed that he did. Mr Gauci further noted that the Applicant asked his stepdaughter not to turn up to court with respect to the offence and also asked Nancy not to go to court to give evidence in the hope that the charges would go away. The Applicant was invited to comment on this. The Applicant stated, “I made the mistake of contacting Nancy, and it was completely wrong to do so.” Mr Gauci noted however, that the Applicant did so to make the case go away and whether that was correct. The Applicant stated that it was not so much about the case being dismissed but more a case of ignorance or misunderstanding as to how things would manifest in the justice system. The Applicant added that it was selfish on his part and completely wrong.
Mr Gauci noted that this contact took place between March and August 2020 and the Applicant confirmed that this was the case. Mr Gauci noted that there was one occasion when he contacted Nancy while she was at the police station and that is how the police became aware that the Applicant had breached bail conditions and the conditions applicable to an apprehended violence order. The Applicant confirmed that this was the case.
Mr Gauci made reference to New South Wales police documents, in particular a document dated 19 August 2020, which related to the Applicant contacting Nancy whilst he was at the police station on 4 August 2020. Mr Gauci noted that the police notes indicated that the victim answered her mobile on loudspeaker and that she recognised the voice as being that of the accused. The victim passed the phone to a police officer who asked the accused why he was contacting Nancy given that there was an apprehended violence order in place at the time. The Applicant confirmed that this was correct. Mr Gauci noted that by contacting Nancy he was in breach of his bail conditions and his apprehended violence order conditions and the Applicant confirmed that this was correct.
Mr Gauci made reference to earlier evidence provided by the Applicant that he had complied with the conditions of his apprehended violence order. The Applicant was invited to comment. The Applicant stated that there were two apprehended violence orders in place. The first required him not to contact Nancy. The Applicant stated that the second apprehended violence order did not take effect until March 2022 and was different. Mr Gauci asked the Applicant which apprehended violence order he was talking about when he gave evidence that he did not breach the order. The Applicant stated that was the second apprehended violence order of 22 March 2022.
Mr Gauci noted nonetheless that the Applicant had breached the first apprehended violence order of August 2020. The Applicant confirmed that he did breach it. Mr Gauci noted that the police records indicated that the victim broke down and advised police that the accused had previously threatened and intimidated her. Mr Gauci asked the Applicant whether he agreed with this. The Applicant stated that he rejected this and that he had never threatened or abused his ex-wife in any way. Mr Gauci asked the Applicant whether he was calling his ex-wife frequently at this time. The Applicant acknowledged that he did call her, but the Applicant added that it was when the Covid 19 pandemic had broken out and he was concerned about how things were going for both his ex-wife and for his daughter.
Mr Gauci asked the Applicant whether he agreed that Nancy would have found these phone calls from the Applicant intimidating. The Applicant stated this may have been the case.
Mr Gauci noted that around August 2020 he was going through divorce proceedings with his ex-wife Nancy and the Applicant confirmed that this was the case.
Mr Gauci noted that the Applicant’s relationship with his ex-wife Nancy changed between the offending in May 2019 and August 2020. The Applicant conceded that the relationship was changing and was getting towards its end. The Applicant stated that at the time he was suffering with extreme anguish as a consequence of the offending, the cessation of his marriage, and the fact that he felt like he was losing his wife and his family, and the Applicant described himself as being frustrated and confused.
Mr Gauci asked the Applicant whether he took this out on Nancy. The Applicant stated that he was ‘trying to find a solution to all of this’.
The Tribunal noted that during the period in question after the offending there were apprehended violence orders and bail conditions in place. The Tribunal noted that the Applicant’s bail was withdrawn when he breached the conditions of his first apprehended violence order. The Tribunal noted that a large part of this period was impacted by the Covid-19 pandemic. The Tribunal asked the Applicant whether he and his ex-wife attempted to reconcile or have counselling. The Applicant stated that this was not possible because of the existence of the apprehended violence order, that they could not get counselling because he was incarcerated and that during Covid when he was in prison he had zero contact with his ex-wife. The Applicant stated there was no capacity to engage in any attempt to salvage his marital relationship due to prevailing circumstances.
Mr Gauci noted that after the initial phone calls the Applicant increased the frequency of his phone calls to Nancy and as a consequence of this chain of events, Nancy commenced family court proceedings as she no longer wanted to be married to the Applicant. Mr Gauci asked the Applicant whether he agreed that his demeanour towards Nancy became threatening. The Applicant refuted this and stated that he was not being threatening; he was trying to find a solution with respect to the possible end of his marriage. Mr Gauci asked the Applicant whether he believed that Nancy would have found his phone calls threatening. The Applicant stated she may have considered that.
Mr Gauci noted that the Applicant was subsequently convicted of the sexual offence and with respect to contact with Nancy in an attempt to obstruct justice. Mr Gauci noted that all three offences that the Applicant was found guilty of were serious. The Applicant stated that he agreed with this.
Mr Gauci asked the Applicant when he was in prison whether he met with different staff members or professionals. The Applicant stated that he saw several people during the time that he was in prison including a psychologist. Mr Gauci made reference to an incident on 11 May 2021 whilst the Applicant was incarcerated in the Bathurst Community Corrections Centre and made reference to Exhibit 8 page 508 of the bundle of documents located in the bundle of Department of Communities and Justice summons documents. The record relates to a discussion with a staff member at Bathurst Community Corrections, Ms Bryant, on 11 May 2021, which amongst other issues, makes reference to the Applicant’s offending.
Mr Gauci asked whether the record did not reflect what he stated to the officer and the Applicant stated that was correct, it had been misinterpreted. Mr Gauci put to the Applicant that he did not disclose the contact with his ex-wife during the period of the apprehended violence order because he wanted to make it look as though he was of good behaviour. The Applicant stated that he did not provide this information to establish that he was of good behaviour and the Applicant asserted that he had always been of good behaviour when in prison. Mr Gauci put to the Applicant whether he gave this evidence to Ms Bryant in an attempt to mitigate his sentencing. The Applicant was invited to comment. The Applicant stated that perhaps he was looking at having a sentence that was not so harsh.
Mr Gauci made reference to the record of interview with Ms Bryant which discusses circumstances with respect to the offending. The document indicates “he stated he was drunk and had friends over for a barbecue on the night of the offence, he said he had been consuming alcohol for approximately eight hours prior. He said the offence was not intended, that he went to his room and thought it was his wife in bed, not the victim. He said he immediately stopped and walked away when he realised it was not his wife. He said he feels embarrassed for his actions and is very sorry, continually stating he didn’t intend to do anything to the victim. He believes that alcohol may have had some influence on his behaviour, however said the offence occurred due to mistaken identity.” Mr Gauci put to the Applicant that this record of interview with Ms Bryant was different to the record of interview captured in the police facts sheet of May 2019. Mr Gauci put to the Applicant that he did not raise the case of mistaken identity with police at the time of the offending and put to the Applicant that the reason that he did not raise mistaken identity at the time was because he had given the police a correct version of events. The Applicant stated that the version in part was correct but there were problems with identity.
Mr Gauci put to the Applicant that the statement that he made to Corrective Services in 2021 differed from his original account to minimise the gravity of his offending. The Applicant disputed this and stated that it was not to minimise it but in fact to clarify the events that occurred on the night in question. The Applicant stated that this was an opportunity to be as clear as possible and to clarify the facts.
Mr Gauci made further reference to page 508 of Exhibit 8 from New South Wales corrective services. The report by Ms Bryant indicated that the Applicant was willing to comply with supervision and participate in a community service work order and an intervention plan with respect to sexual offending and alcohol consumption. Mr Gauci put to the Applicant that he said these things to Ms Bryant in order to obtain a reduced sentence. The Applicant refuted this and stated that it was with the intention of obtaining real help and real psychological help.
Mr Gauci made reference to Exhibit 8 page 524 an interview with Mr King at the South Coast Correctional Centre dated 24 June 2021. Mr Gauci asked the Applicant whether he was moved to the South Coast Correctional Centre, and he advised that he was. Mr Gauci asked the Applicant whether he had a record of discussion with a staff member by the name of Mr King, and he advised that he remembered speaking to somebody, but he did not remember their name. Mr Gauci referred to Mr King’s statement at Exhibit 8 page 525 where the Applicant claims that “he, his wife and his stepdaughter were at home having a party with friends over. They had been drinking and the party was winding down. Jorge then entered his room to find his stepdaughter in his bed, while his wife was in the bathroom. He claims that he never touched her and that he was trying to masturbate in the bedroom when his partner entered and caught him. Stating that she assumed he was in the bed with the victim.” Mr Gauci asked the Applicant whether he recalled this conversation. The Applicant stated that he could not remember this conversation. Mr Gauci asked the Applicant whether he agreed that this recollection of events was different to the file note from Bathurst Community Corrections from May 2021. The Applicant stated it was completely different to the May 2021 account. The Applicant stated that he could remember giving an account to someone at the South Coast Corrections Centre, but he could not remember its contents. The Applicant stated that it is difficult to remember saying anything like this.
Mr Gauci noted that the Applicant was recorded as saying that household dynamics were difficult, and this may have factored into what happened to him. The Applicant stated that his family did not have arguments or anything like that.
Mr Gauci notes that Mr King’s statement of 24 June 2021 notes the Applicant’s focus for the future was with respect to his immigration status. Mr Gauci asked the Applicant whether his migration status was a prominent focus for him whilst he was in detention. The Applicant stated ‘no’ that it was not a focus and that his focus was to move on from this problem finding a solution with respect to his family, particularly with respect to his daughter. Mr Gauci noted that this focus on his daughter would include trying to fix any immigration issues. The Applicant stated that the most important thing for him was to get his relationship with his daughter back on track and to be a father to his daughter.
Mr Gauci made reference to Exhibit 8 of the Department of Communities and Justice bundle of documents, at page 511, a document from Nowra Community Corrections completed by Ms Keegan on 16 July 2021. Reference was made to the statement. The Applicant was invited to comment. The Applicant stated that he remembered the conversation with Ms Keegan and the reference to his stepdaughter having problems with her migration to Australia and her feelings that she had more freedom in Colombia.
Mr Gauci asked the Applicant whether he had problems with his stepdaughter prior to his offending. The Applicant stated that he and his ex-wife did have some problems with his stepdaughter when she came from Colombia. The Applicant noted in Colombia she had a different lifestyle and that he and his ex-wife had to try to get her back on track.
Mr Gauci asked the Applicant whether he blamed his stepdaughter for his imprisonment in July 2021, and the Applicant stated that he did not blame her for what happened. The Applicant referred to interviews whilst in the prison system with respect to a decision to seek professional help.
Mr Gauci asked the Applicant whether he believed he should not have been imprisoned. The Applicant stated that it is difficult to accept, however he is aware of what he had done and that he infringed the law and that he must accept his punishment. Mr Gauci noted that the Applicant appealed his convictions to the Supreme Court of New South Wales and the Applicant confirmed that this was the case. Mr Gauci noted that in these proceedings the Applicant raised the issue of mistaken identity. Mr Gauci noted that the Supreme Court upheld the decision of the District Court of New South Wales with respect to his convictions. The Applicant confirmed that this was correct.
Mr Gauci noted that the stepdaughter was under 18 at the time of the sexual offence and the Applicant confirmed that she was. Mr Gauci asked the Applicant whether he breached his stepdaughter’s trust in committing the offence and he advised that he did. Mr Gauci asked the Applicant whether he believed he had caused his stepdaughter harm by committing the offence. The Applicant stated that he was aware that he caused her harm and that he has always asked for forgiveness.
Mr Gauci asked the Applicant whether he believed he caused harm to his biological daughter as well. The Applicant stated that it never crossed his mind to cause harm to either his daughter or stepdaughter. Mr Gauci noted that the Applicant lost contact with his daughter for a period of time after he was incarcerated, and the Applicant confirmed that that was the case. Mr Gauci noted that Nancy had parental control during this period and the Applicant confirmed that that was the case. Mr Gauci noted that Nancy made all the decisions for their daughter at that time and the Applicant confirmed that that was the case. Mr Gauci noted that the Applicant only started having contact with his daughter in early 2024, and whether that was correct. The Applicant stated that he re-established contact with his daughter in 2022. Mr Gauci enquired whether this was when the second apprehended violence order came into effect. The Applicant stated that it covered that period, but the second order stated that he could have contact but could not intimidate.
Mr Gauci noted that since the Applicant’s detention he had been having contact with his daughter via video calls. The Applicant confirmed that he was having contact by video calls but also via in-person visits from time to time. Mr Gauci noted that if the Applicant was removed from his daughter, he could continue to have video calls with her. The Applicant conceded that this would be one of the ways to communicate. Mr Gauci put to the Applicant that he could also send money to his ex-wife to help with his daughter’s support. The Applicant stated that the employment/financial situation in Colombia was extremely difficult. There were high rates of unemployment, the salaries were lower, and it would be difficult to be able to provide support to his daughter in those circumstances.
Mr Gauci noted that the Applicant’s current contact with his ex-wife was with respect to his daughter. The Applicant confirmed that this was the case and that now he and his ex-wife were officially divorced. Mr Gauci noted that the divorce was finalised in 2022 and the Applicant confirmed that this was the case. Mr Gauci questioned if the Applicant did not have a daughter with his ex-wife whether he would have any contact with her, the Applicant advised that if he did not have a daughter with Nancy, there would not be a relationship between them.
Mr Gauci asked the Applicant whether he believed that his alcohol consumption contributed to his offending behaviour. The Applicant stated in part he believed that it contributed but he did not make alcohol the excuse for his offending. Mr Gauci asked the Applicant whether he had a problem with alcohol. The Applicant stated that he does not have a problem with alcohol. The Applicant stated that he had not used a lot of alcohol in the past or indeed used drugs and that he considered himself to be a ‘sporty’ person. Mr Gauci asked the Applicant whether he intended to use alcohol in the community. The Applicant again stated that he did not have a problem with alcohol. He advised that in the past he would drink very occasionally such as birthdays or other celebrations. The Applicant stated that if required, he would seek out information about addictions and professional guidance.
Mr Gauci made reference to the Applicant’s statement that he submitted in support of the application for review. Mr Gauci noted that the Applicant in that statement indicates that he is ashamed and remorseful for his actions and put to the Applicant whether he was feeling shame and remorse to achieve a favourable outcome with the Tribunal. The Applicant stated that he felt shame and remorse with respect to the decision that the Tribunal was reviewing. The Applicant stated he did something wrong and that his desire going forward is to rehabilitate himself.

The Tribunal asked the Applicant whether he felt rehabilitated from his experience in jail. The Applicant stated that he was able to reflect and extensively explore how to address poor behaviour and the impact that his behaviour had on his family unit and to undertake some soul-searching.
Mr Gauci asked the Applicant whether he believed the sentencing was appropriate with respect to his offending. The Applicant stated because of his poor behaviour the courts imposed a sentence and he accepted and duly served the sentence that was given to him.
Mr Gauci noted that there was no reference in the Applicant’s statement of 2 August 2024 with respect to his stepdaughter. The Applicant stated that he is seeking forgiveness for his actions.
The Tribunal asked the Applicant whether he had made amends with his stepdaughter, and he advised that he had no communication with her, however, on one occasion when he was contacting his daughter, his stepdaughter was present during the video call, and he expressed his remorse for his offending and sought her forgiveness. The Applicant stated this was around Christmas time in 2023.
Mr Gauci noted that when the Applicant arrived in Australia in 2008, he was 27 years old. Mr Gauci noted that since the Applicant had been in Australia he had worked as a labourer and as a cleaner and a cleaning supervisor. Mr Gauci asked the Applicant whether he obtained good experience in these roles. The Applicant stated that he likes to do things well and that he likes to do the best job that he can whether it be cleaning or construction.
Mr Gauci noted that the Applicant’s parents lived in Colombia and the only family member that he had in Australia was his daughter. Mr Gauci noted that the Applicant had travelled back to Columbia a couple of times. The Applicant stated that he had been back to Columbia on four occasions for approximately six weeks on each visit, a total of approximately 24 weeks. The Applicant stated that his most recent trip back to Columbia was in March 2019.
Mr Gauci asked the Applicant whether he had regular telephone contact with his parents in Colombia since his detention. The Applicant stated that contact was limited in jail because of Covid, there was limited access to telephone facilities, and other restrictions. The Applicant stated he had spoken to his parents on one or two occasions when he was imprisoned. The Applicant stated that since he has been at Villawood, he has had more communication with his parents. The Applicant stated that his parents knew that he was in prison and the reason for his imprisonment.
Mr Gauci enquired whether it was the Applicant’s evidence that he did not have weekly contact with his parents and the Applicant stated that with Covid-19, contact was limited, but it became better after Covid.
Mr Gauci asked the Applicant whether he would have any language or cultural issues returning to Colombia and the Applicant stated that he would not. Mr Gauci asked the Applicant whether he could use the skills acquired in Australia back in Colombia. The Applicant stated that he did not agree that he could, because the job market was poor in Colombia and the jobs that he undertook in Australia in construction and cleaning were amongst the lowest paid in South America. The Applicant added that he would not be able to support himself.
Mr Gauci asked the Applicant whether the cost of living in Colombia was lower than Australia and the Applicant stated that the cost of living is lower in Colombia, but wages are also very low. Mr Gauci asked the Applicant whether he could seek assistance from his parents if he returned to Columbia with respect to housing and financial support. The Applicant stated that his parents were of an advanced age, they lived in a small apartment, they lived on a pension, and it would be extremely difficult for them to provide support to him.
Mr Gauci noted that the Applicant made a protection visa application to the Department in 2020 and that he raised concerns about his role in the military against groups in Colombia such as FARC. Mr Gauci noted that the protection visa application was refused by the Department in 2020 and the Applicant confirmed that that was the case. Mr Gauci noted that since that time the evidence indicated that he had not received any threats from Colombia. The Applicant stated the only contact that he had was with his parents and because he has been in detention for an extended period, he has kept his details very private. Mr Gauci concluded his cross-examination of the Applicant.
Mr Northam re-examined the Applicant. Mr Northam took the Applicant to document G5 page 121 (Exhibit 10) the police facts sheet, dated 26 May 2019. Mr Northam noted that police in this document had recollected what the Applicant had said in an interview and that unfortunately the police record of interview with the Applicant does not form part of the bundle of documents.
Mr Northam noted that Mr Gauci had stated that there were differences with what was contained in the police facts sheet and differences with the accounts of offending given to an officer at the South Coast Correctional Centre on 24 June 2021. Mr Northam stated that he wanted the Applicant to clarify the differences.
With respect to the police facts sheet Mr Northam asked the Applicant whether he knew that his stepdaughter and daughter were in the bedroom. The Applicant stated that he did not know that there were two people in the room. Mr Northam noted that the police statement indicated that the Applicant masturbated in the presence of both victims whilst facing towards them both. Mr Northam noted that the Applicant gave evidence that he did masturbate near the bed, that he pulled his zip down, took his penis out, and tried to have an erection by masturbation and at no time did he know that the person in the bed was not Nancy until his stepdaughter woke up. Further, the Applicant had given evidence that when he was affected by alcohol, he had trouble having an erection and that he would masturbate to assist him in having an erection. The Applicant stated that the police facts sheet statement was incorrect and that he believed it was his ex-wife Nancy in bed and not his stepdaughter.
Mr Northam noted that the touching charge with respect to the stepdaughter was dropped. Further that the Applicant’s accounts were that the children were under the bedclothes. The Applicant stated that he had no contact with his stepdaughter. Mr Northam made reference to the police facts sheet which stated that the Applicant whilst masturbating had bad thoughts with respect to his stepdaughter and that maybe he wanted to have sex with her. The Applicant stated that when he gave a statement to police, they asked him many questions and that he believed that the person in bed was his ex-wife, Nancy.
Mr Northam asked the Applicant whether he had any sexual attraction to his stepdaughter and he advised that he did not.
The Tribunal asked the Applicant whether there was an interpreter present during the police interview. The Applicant advised there was not. The Tribunal asked the Applicant whether there was a lawyer or support person present during the police interview. The Applicant stated that he was taken to the police station around 4am in the morning and that he slept in a holding cell until 11am. The Applicant stated that he asked the police if he could call a friend or call Nancy. The Applicant stated that an interpreter was not made available to him, and he told the police officers from the beginning that he needed an interpreter. The police failed to act on these requests. The Applicant stated that the police did not give him access to a lawyer or support person. The Tribunal asked the Applicant when the interview with police started, and he advised around 1pm in the afternoon and that the interview went for about one hour.
Mr Northam asked the Applicant how old his biological daughter currently was, and he advised 11 years of age. Mr Northam noted that his daughter was on the cusp of adolescence, a very critical time in a young woman’s development. Mr Northam asked the Applicant how he believed his daughter would be affected by his removal from Australia. The Applicant stated that she would miss her father, that she would be affected by his removal, that it could lead to psychological harm, that it would be extremely difficult for him to contribute to his family support both financially and emotionally from Colombia and it would be difficult to deal with the time differential. The Applicant stated that this would have an adverse impact on his daughter.
Mr Northam asked the Applicant whether he believed that parenting by video or Skype would be effective. The Applicant stated every case should be assessed differently and generally it would not be effective particularly given the time difference between the two countries.
Mr Northam made reference to the psychological evidence that indicated that the typical profile of somebody prone to sexual deviance is very different to that of the Applicant. The psychological evidence indicated that an adverse sexual profile would usually develop at a young age and would be a strong indicator of future offending. The Applicant denied masturbating with respect to his daughter and stepdaughter and believed that it was his wife in bed. The Applicant referred to the consumption of a significant amount of alcohol. The Applicant stated that he had enrolled in and engaged in a number of early intervention programs with respect to child offending. Mr Northam pointed out the psychologist’s report provided by Mr Tim Watson-Munro which indicated that the Applicant’s offending was brief, approximately two minutes in length, that there was no previous history of offending at all in either Colombia or Australia and there had been no subsequent offending, and that these were good predictive factors with respect to future offending.
Mr Gauci noted that the evidence from the psychologist indicated that there would be a psychological impact on the daughter if the Applicant was removed to Colombia. Mr Gauci submitted however, that this could be mitigated through video and telephone contact.
Prior to taking evidence from Mr Tim Watson-Munro the Tribunal asked the Applicant some direct questions with respect to his involvement with and parenting of his daughter.
The Applicant advised that she was born at Royal Prince Alfred Hospital. The Applicant advised that he and his ex-wife elected to go through the midwife program offered by that hospital. The Applicant advised that his daughter’s birth was uncomplicated and that she was delivered with a midwife without any problems. The Applicant stated that he attended all the appointments with his ex-wife prior to his daughter’s birth.
The Tribunal noted that the Applicant arrived in Australia on a student visa in 2008 which was a temporary visa and that he had been a secondary visa holder on his ex-wife’s student visas, and later her subclass 457 visa. The Tribunal noted that the recurrent feature of these visas was that they were all temporary and did not guarantee a pathway to permanent residence. The Tribunal noted given the temporary nature of these visas whether he and his ex-wife had conversations about returning with their children to Colombia if a permanent residence pathway did not manifest. The Tribunal asked the Applicant what level of discussions they had around this during his ex-wife’s pregnancy. The Applicant stated that this was something that crossed both his mind and his ex-wife’s mind that they were always hopeful of finding a permanent residence pathway.
The Tribunal asked the Applicant what level of involvement he had in his daughter’s life up until the age of 5. The Applicant stated that as a father he was involved in her care and that he worked to cover all of her needs. The Applicant stated that he brought his parents to Australia on one occasion and that his father returned on a second occasion to spend time with his granddaughter. The Applicant stated that he always looked after his daughter prior to his incarceration and provided care to her. The Applicant stated that he attended childcare meetings when she was in child-care, and that he was involved in all of her birthday celebrations and that he and his ex-wife and young daughter would travel on holidays together and go away for weekends. The Applicant stated that his daughter was enrolled in kindergarten in 2019. The Applicant stated that his daughter went into childcare when she was approximately two years old.
The Applicant advised the Tribunal that his daughter had health issues during the first five years of her life as she had problems with asthma. The Applicant stated that this problem developed as she started to grow up and that she was sometimes severely affected by her asthma. The Applicant stated that he and his ex-wife took their daughter to medical specialists, and she was prescribed a nebuliser to deal with exacerbations in her asthma. The Applicant stated that on a number of occasions his daughter was hospitalised with asthma.
The Tribunal asked the Applicant whether the relationship with his daughter came to an end abruptly after the offending. The Applicant stated that his relationship began to change completely after the offending and that his ex-wife made decisions with respect to the daughter and filed for divorce. The Applicant confirmed that after the night of the offending in May 2019 that he and his ex-wife separated and never again lived together.
The Tribunal asked the Applicant whether his ex-wife precluded him from having access to his daughter because of the offending. The Applicant stated that when the initial apprehended violence order was in place, he could not have access to his daughter. However, he would make telephone contact with his ex-wife to enquire about his daughter’s health because of her underlying asthma and his concerns about the impact of the Covid-9 pandemic on her health.
The Tribunal noting that the Applicants ex-wife had attended the hearing to give direct evidence in the course of the hearing, asked the Applicant what his relationship with his ex-wife was like now. The Applicant stated that he has more communication with his ex-wife and more conversations with her. They are both focused about the future of their daughter, and her best interests, and she is their primary concern. The Tribunal asked the Applicant whether he knew what his ex-wife’s current visa status was and he advised that she was currently awaiting the outcome of her Subclass 186 visa application.
Evidence of Consultant Psychologist
The Tribunal took evidence from Mr Tim Watson-Munro, a Consultant Psychologist. Mr Watson-Munro was engaged by the Applicant to provide a report with respect to the Department of Home Affairs intention to consider refusal to grant a visa under s 501(1) of the Migration Act. Mr Watson-Munro’s report has been submitted by the Applicant with respect to his review application before the AAT. The report dated 15 December 2023 can be located at G25 (Exhibit 10) pages 636-658.
The Applicant’s representative Mr Northam conducted an examination of Mr Watson-Munro. Mr Watson-Munro gave his name and advised that he was a consultant psychologist. Mr Northam asked Mr Watson-Munro when he interviewed the Applicant and he advised on the 27 and 30 November 2023 for the purposes of a report dated 15 December 2023. Mr Watson-Munro advised that he also took evidence from the Applicant’s former wife Nancy, his stepdaughter, and his daughter. Mr Watson-Munro stated that there were no communication problems and that in the preparation of his report he was assisted by a number of documents.
Mr Northam asked Mr Watson-Munro what he considered to be the Applicant’s risk of reoffending. Mr Watson-Munro stated that he believed it was a ‘low risk’ however he provided this evidence ‘advisedly’. Mr Watson-Munro stated that the Applicant committed a serious sexual offence, he advised that the Applicant had expressed remorse for this. He advised that the Applicant had no criminal history prior to the offending behaviour of May 2019 and that there had been no pattern of sexual offending. Mr Watson-Munro stated that based on his expertise and review of literature, repeat sex offenders normally start their offending in adolescence and if that is the case, a pattern of offending will usually continue into adulthood. Mr Watson-Munro stated that the Applicant had engaged in a number of programs since he had been in immigration detention. Mr Watson-Munro stated that the Applicant understood the gravity of his situation and that he understands that reoffending, if he is allowed to return to the community, will lead to deportation.
Mr Watson-Munro made reference to a number of protective factors that would lower the risk of offending. Mr Watson-Munro stated that the Applicant cares for his family. Mr Watson-Munro indicated that the Applicant’s daughter who is now aged 11, was on the verge of reaching adolescence. He advised that in interviewing the Applicant’s daughter it was apparent that she misses her father and would be affected by his removal. Mr Watson-Munro stated that the Applicant’s removal could lead to psychological harm. Mr Watson-Munro stated that it would be difficult for the Applicant to continue to support his family from Columbia and there would be a range of challenging logistics if the Applicant was domiciled on the other side of the world. Mr Watson-Munro stated that he had travelled to South America and was aware of the time differential. Mr Watson-Munro stated that this could have a multiplier effect adversely impacting on the daughter.
Mr Northam asked Mr Watson-Munro whether he believed that parenting via video calls on Skype was effective. Mr Watson-Munro stated that every case should be assessed differently but generally it was not effective and once again made reference to the time difference between Australia and Colombia.
Mr Watson-Munro stated that the typical profile of a person prone to sexual offences is different to the Applicant. Mr Watson-Munro stated that the Applicant described his actions on the night of the offending with respect to masturbating in proximity to his stepdaughter and daughter to be a one-off after the consumption of a considerable amount of alcohol. Mr Watson-Munro made reference to a 4-year program in the United States of America which indicated that early intervention is very important with respect to child offending. Once again noting that if a person offended in adolescence there was an increased risk of future offending into adult hood. Mr Watson-Munro noted that this was a brief offence of 2 minutes duration and that there was no subsequent offending, and these were good protective factors. Mr Northam’s examination of Mr Watson-Munro concluded.
Mr Gauci cross-examined Mr Watson-Munro. Mr Gauci noted Mr Watson-Munro’s evidence of the potential psychological impact if the Applicant was removed to Colombia upon his daughter. Mr Gauci put to the witness that video contact although not optimal, may relieve some of the psychological issues with respect to the Applicants removal from Australia. Mr Watson-Munro stated that psychological contact was less preferable to physical contact.
Mr Gauci referred to Mr Watson-Munro’s report, at G 25 page 644 (Exhibit 10). Mr Gauci noted that when interviewing the stepdaughter, she reported that for the sake of her younger sister that despite the Applicant’s previous offending she was nonetheless supportive of his desire to remain in Australia. Mr Gauci noted that the stepdaughter’s account to Mr Watson-Munro indicated that she had no interaction with the Applicant. Mr Gauci put to Mr Watson-Munro that the stepdaughter had suffered trauma as a result of the sexual offending and that she wanted to move forward with her life in the absence of the Applicant in her life. Mr Watson-Munro confirmed that his report indicated that the stepdaughter had no contact with the Applicant and had no intention of seeing him in the future.

Evidence has been provided to the Tribunal by the Applicant’s ex-wife at hearing and in her statement dated 9 July 2024 that she envisages the Applicant playing a critical role in the upbringing of their daughter, and is fearful of the impact that the Applicant’s removal from Australia will have on their daughter, in her statement the Applicant’s ex-wife pleaded that the Applicant be returned to the Australian community and especially to his 11 year old Australian daughter.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
The daughter is 11 years old and there are 7 years before she reaches the age of 18 and is an adult.
The evidence before the Tribunal indicates that prior to the Applicant’s offending in May 2019, that he played a substantial and positive parental role in his daughter’s life up until that point of time. The evidence indicates that the Applicant was involved in all aspects of his daughter’s life. This included attending pre-natal appointments with his ex-wife, being present at his daughter’s birth, being involved in her care while she was an infant and being involved in the selection of preschools and primary schools. The evidence further indicates that the Applicant has been extensively involved in his daughter’s health care and that this became more critical after his daughter develops childhood asthma that at times required hospitalisation. The Tribunal finds based on the evidence that has been elicited at review hearing and provided in the written bundle of documents that the Applicant’s role in his daughter’s life has been significant, and based on that evidence the Tribunal finds that the Applicant is likely to play a positive parental role in his daughter’s life in the future.
The Tribunal agrees with the submissions that have been made with respect to the Applicant’s daughter at age 11 being on the cusp of adolescence and the challenges that parents can face in the parenting of adolescents. The evidence before the Tribunal indicates that the Applicant’s daughter has been happy to re-establish communication with her father and has benefited from face-to-face visits with him. The statement of the Applicant’s ex-wife is that she sincerely hopes that the Applicant will be able to be released from immigration detention, return to the community, and play a vital and ongoing role in the care of their child.
There is no evidence before the Tribunal of any Court orders relating to parental access and care arrangements. However, evidence has been provided by the Applicant’s ex-wife that the Applicant was extensively involved in his daughter’s life prior to his incarceration. She described that her relationship and that of her daughter with the Applicant “is defined by an exclusive and unwavering love that has withstood the trials of separation and detainment. Together we look forward to the day we can be reunited in the Australian community and continue his journey and carry on his duty of care as a father to our 11-year-old daughter.”
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
There is no evidence before the Tribunal that the daughter has been negatively impacted by the Applicant’s conduct, or that she will be so impacted in the future. Evidence provided by Mr Watson-Munro based on discussions with the daughter that he undertook for the preparation of his report, dated 15 December 2023, indicates that she has visited with her father and that she misses him and is keen to see him return to the community. Mr Watson-Munro stated that the daughter “described feelings of sadness regarding his current situation.” The daughter further reported to Mr Watson-Munro a range of activities that she previously undertook with her father that included making ice cream, watching television, and playing in the park, and that she confirmed that she was missing not being able to share these activities with him and that she misses her father.
There is no evidence that the Applicant’s offending in May 2019 had an adverse impact on his daughter, indeed the evidence indicates that she was asleep at the time of the offending. The Tribunal concedes that had she woken up during the offending that it would have had a potential detrimental impact on her. However, the weight of the evidence provided by the Applicant, his ex-wife, and Mr Watson-Munro’s discussions with the daughter indicate that the Applicant’s prior conduct, and any likely future conduct will not have a negative impact on the Applicant’s daughter.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of 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.
The evidence before the Tribunal indicates that the daughter and the Applicant had a close relationship prior to the offending and his incarceration. The evidence before the Tribunal indicates that the Applicant was substantially involved in all aspects of his daughter’s life. Evidence elicited by Mr Watson-Munro in his report of 15 December 2023, indicates that the Applicant’s daughter has enjoyed re-establishing physical contact with her father after an extended period without that contact. Further to this that she enjoyed a positive relationship with her father in the past and hoped for a positive relationship with him in the future. The weight of the evidence indicates that the best way that this relationship can be fostered going forward is if the Applicant is physically present in his daughter’s life. The respondent’s representative suggested that Skype and other video links if the Applicant had to return to Colombia was an effective way of maintaining that relationship. Mr Watson-Munro stated that this was less than satisfactory. The Applicant’s representative submitted that as the daughter is on the cusp of adolescence it was fundamentally important for both parents to be involved in her life during that difficult transition. The evidence before the Tribunal when cumulatively considered indicates that there would be an adverse effect on the daughter if the Applicant was removed from Australia and that video contact, particularly given the obstacles of time differences would compromise their relationship and would be less than satisfactory.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
Ms Nancy Lorena Giraldo Correa already fulfills a parental role for the daughter. However, Ms Giraldo Correa’s statement of 9 July 2024 makes it clear that she envisages the Applicant being physically involved and present in their daughter’s upbringing going forward. The evidence further indicates that despite the difficulties caused by the Applicant’s offending in May 2019, that ultimately led to the Applicant and his ex-wife divorcing in 2022, that she has a respectful relationship with the Applicant going forward and that the ultimate goal of the Applicant and Ms Giraldo Correa, is the best interests of their daughter.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
As has been noted, Mr Watson-Munro for the purposes of his report of 15 December 2023 had discussions with the Applicant’s daughter and despite repetition it is useful to convey the contents of that discussion. “[Redacted] impresses as a bubbly and co-operative child. She reported that she is attending the St Paul’s of the cross primary school at Dulwich Hill and is now in year four. She reported that she visits her father and that she misses him and attendant to this, is keen for him to be returned to the community. She described feelings of sadness regarding his current situation. [Redacted] further reported a wide range of activities she previously undertook with her father, including making ice-cream, watching television and playing in the park. She confirmed that she is missing not being able to share these activities with him. She added that she occasionally goes to the park with her mother and is happy with this but nonetheless misses her father.”
The Tribunal finds that the report of Mr Watson-Munro is a source of contemporaneous evidence with respect to the views of the Applicant’s daughter.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
The daughter was 5 years old during an act of ‘Aggravated-carry out sexual act with another (Domestic Violence)’ by the Applicant against the stepdaughter in May 2019. This evidence indicates that act was not directed towards the daughter, who according to the evidence was asleep at the time the offending took place and did not wake up during the act of offending. The Tribunal accepts the evidence that has been adduced at review that had the daughter woken up during the offending, that the offending would have potentially had an adverse impact on her. The Applicant’s ex-wife provided evidence to the Tribunal at the review hearing that she had no concerns with respect to her daughter being left in the care and control of the Applicant. The Tribunal finds based on the evidence before it that there is no further evidence of being exposed to, or at risk of, domestic violence, abuse, or neglect at the hands of the Applicant. The Applicant has demonstrated a strong commitment to the safety and welfare of his daughter in the past and is committed to her ongoing safety and welfare going forward.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. There is evidence before the Tribunal from Mr Watson-Munroe that the victim of the offending (stepdaughter), aged 17 at the time of the offending “experienced some psychological symptoms referable to Mr Peralta Montes’ offending conduct but she added that she had moved on.” As discussed, the Applicant’s daughter was asleep in the same bed as the victim at the time of the offending and hence she did not witness the offending. The Tribunal agrees with submissions that have been made at review that had she woken up that there may have been an adverse impact upon her.
Considering all the evidence before with respect to this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh heavily in favour of the revocation of refusal of the Applicant’s visa.
Conclusion: Primary Consideration 4
The Tribunal finds that this consideration weighs heavily in favour of the revocation of the refusal of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the following matters:
(a)The Applicant has committed a sexual crime against a minor;
(b)The Applicant attempted to pervert the course of justice with respect to his offending by procuring his former wife not to engage with the police or indeed the criminal justice system
Conclusion: Primary Consideration 5
On balance, Primary Consideration 5 weighs against the revocation of the refusal of the Applicant’s visa
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
The evidence before the Tribunal indicates that the Applicant lodged an application for a Subclass 866 protection visa on 13 February 2020. The application for a Protection visa was duly assessed by a delegate of the Minister who determined in a decision made on 3 September 2020, that the Applicant was not owed protection obligations by Australia with respect to s 36(2)a) of the Migration Act. The delegate further found that the Applicant was not owed supplementary protection obligations with respect to s 36(2)(aa) of the Migration Act.
The delegate made conclusive findings that they could not be satisfied that there “are substantial grounds for believing that, as a necessary and foreseeable consequence of Jorge Ivan PERALTA MONTES being removed to Colombia, there is a real risk they will suffer significant harm as defined in s 36(2A) of the act. Therefore, Jorge Ivan PERALTA MONTES, is not a person in respect of whom Australia has protection obligations as outlined in S.36(2)(aa) of the Act.”
In making these findings the delegate noted that the Applicant had been resident in Australia since June 2008 and that he did not make an application for a Protection visa until February 2020 (more than 12 years later) diminishing the genuineness of his claimed fears and leading to adverse credibility findings. The delegate further found that the Applicant had returned to Colombia in the intervening years on several occasions for extended visits ‘harbouring no concerns over his safety.’
The evidence before the Tribunal indicates that the Applicant did not seek merits review of the adverse protection decision.
The Tribunal finds on the basis of the evidence before it that Australia does not have non-refoulement obligations with respect to the Applicant.
(b) Extent of impediments if removed
The Tribunal accepts the Applicant’s evidence that removal to Colombia would cause him severe stress and would deprive him of physical access to his Australian citizen daughter.
The evidence indicates that the Applicant came to Australia 16 years ago and has lived in Australia for an extended period of time and prior to his offending in May 2019 and his subsequent incarceration has built his life in Australia. The Applicant has given evidence at review that his only relatives in Colombia are his elderly parents, both retirees, both reliant on a government pension and of limited means. The Applicant has also provided evidence that being 43 years of age would limit job opportunities in Colombia due to age discrimination in the workplace. The Applicant has given evidence to the Tribunal that he has limited prospects for work, no current employment contacts in Colombia and that the impediments placed upon him if removed from Australia would substantially impact him and his daughter.
Mr Gauci on behalf of the Minister has submitted that the Applicant is familiar with Colombia which will make his transition to life in Colombia less difficult. Mr Gauci notes that the Applicant would have access to health services, treatment and welfare services in Colombia but concedes that the access to and standard of these services would not be at the same high standard that is available in Australia. Mr Gauci contends that the Applicant has not submitted evidence to corroborate his claim of age discrimination in the workplace in Colombia. Mr Gauci submitted at hearing that the Applicant has acquired a range of skills in the time that he has worked in Australia, that could be applicable to employment opportunities in Colombia. Mr Gauci contended that this consideration weighed slightly against visa refusal.
The Applicant would not suffer any language or cultural barriers in Colombia.
The Tribunal is however satisfied based on the evidence before it that the Applicant would suffer impediments to re-establishing his employment and life in Colombia. On balance, therefore, this consideration weighs moderately in favour of the revocation of the refusal of the Applicant’s visa.
(c) Impact on Australian business interests
There is no evidence that Australian business interests would be compromised if the Applicant is removed to Colombia. Accordingly, the Tribunal does not consider this consideration to be relevant.
CONCLUSION
The Tribunal has had close regard to the totality of the evidence and those considerations referred to in the Direction.
The Tribunal finds in conclusion that the weight that should be apportioned to the primary and other considerations with respect to the revocation of the Applicant’s visa, outweigh those considerations with respect to the non-revocation of the Applicant’s visa.

The decision under review is accordingly set aside and in substitution the refusal of Mr Peralta Montes’s visa is revoked.
DECISION
The decision under review is set aside and in substitution the refusal of Mr Peralta Montes’ visa is revoked

I certify that the preceding 427 (four hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Cipolla

............................[SGD]...................................
Associate
Dated: 28 August 2024

Date final submissions received:
14 August 2024

Dates of Hearing: 7 & 8 August 2024

Solicitors for the Applicant:
Mr Northam, Northam Lawyers

Solicitors for the Respondent: Mr Gauci, Hunt and Hunt Lawyers

Date final submissions received:	14 August 2024
Dates of Hearing:	7 & 8 August 2024
Solicitors for the Applicant:	Mr Northam, Northam Lawyers
Solicitors for the Respondent:	Mr Gauci, Hunt and Hunt Lawyers