PJBV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 2339

PJBV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2339 (1 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3280

Re:PJBV

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:1 August 2023

Date of written reasons:        4 August 2023

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 9 May 2023 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Resident Return (Class BB) (subclass 155) visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

........[SGD]................................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No.99 – substantial criminal record – nature and seriousness of the offending – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

Pearson v Minister for Home Affairs [2022] FCAFC 203

SECONDARY MATERIALS

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

4 August 2023

INTRODUCTION

1. The applicant was born in Fiji in 1999 and came to Australia with his mother in 2009.[1] His Indian-Fijian family was caught up in the turmoil of the 2006 military coup and the subsequent events which led to a constitutional crisis in 2009. All judicial appointments were terminated, including his mother’s appointment as a magistrate. His father served in the Fijian armed forces.[2]

   [1] G2, 55.

   [2] G2, 99.

2. On 28 November 2009, he was issued a Resident Return (Class BB) (subclass 155) visa and has lived here ever since.[3]  

   [3] G2, 161-162.

3. He is the second in age of four children. He has an older sister, a younger sister, and a younger brother.[4] His older sister and younger brother are Australian citizens.[5] He attended primary and high school in Australia. He was good at sport, especially basketball, less so academically. Nevertheless, he graduated from Champagnat Catholic College in 2017 with a Higher School Certificate.[6] In 2016, he received a Leadership Certificate.[7]

   [4] G2, 65.

   [5] G2, 123-124.

   [6] G2, 143.

   [7] G2, 142.

4. His parents separated in 2016, and his mother moved to Queensland with the girls, but he stayed in Sydney with his father and younger brother. He started to drink heavily and to use drugs. From the age of 16 he was binge drinking on a regular basis and by 18 he was also using drugs every weekend. Nevertheless, after he graduated from high school, he was able to hold down a job at DHL as a packer.[8]

   [8] G2, 39, 59.

   The Big Night Out – 29 November 2019

5. On Friday, 29 November 2019, the applicant went into the city for a night out, accompanied by a friend from work. They ‘pre-drank’ an amount of whisky before going into town. They attended various nightclubs and bars and consumed more alcohol. After closing time, they wandered aimlessly around Darlinghurst towards Taylor Square. Around half past three, they met a young woman. She was extremely inebriated. The applicant’s friend described the scene as follows:

   She looked like a homeless girl. Her clothes were ripped and she had no shoes on.

   After that, me, [PJBV] and her were walking around the streets for a bit. I remember [PJBV] and her kissing. This was later on, much closer to when I was about to catch my Uber home.

   The girl was really drunk. She looked like she was on drugs and was a junkie or something. She was really wobbly and the way she was talking was weird. She was talking about weird spiritual things and weird shit. She wasn’t making much sense. I still clearly remember at one stage she said, “I like cutting myself, I enjoy that’. She was crying and said “all of my friends have left’. Her make up was smeared across her face and her hair was everywhere.[9]

   [9] RTB, R3.

6. She had also gone out for a night out with a friend. They had ‘pre-drunk’ before going out, and she had smuggled a bottle of champagne into the dance party they attended. She remembers that at some point she was given something to sniff, which she described as ‘jungle juice’. It was like cough mixture.

   Jungle juice I would describe as being in a cough medicine style bottle. It made me feel really relaxed and chill. Everything kind of slowed down. It made me go into a little shell but in a good way. I had never used jungle juice before this time.[10]

   [10] Victim’s statement, RTB, R1, [17].

7. The ‘jungle juice’ was apparently amyl nitrate, a drug in widespread recreational use. It gives a euphoric high but is a muscle relaxant and has very serious side-effects. She could only recall snippets of the evening.[11]

   [11] G2, 32.

8. After sitting for a while, his friend took his leave and the applicant set off down Oxford Street with the young woman. They turned into a laneway, apparently looking for a place to have sex.

9. The victim provided a statement to the police for the purposes of the criminal trial.[12] In her statement, she recalls being naked on the footpath while the accused had penile/vaginal sex with her and her telling him that it hurt.[13] She recalls having a white long-sleeved jumper on but not wearing her skirt, underwear, shoes or stockings. She was upset and crying because she was naked, and she was aware that she couldn't try and go home whilst she was naked. Police subsequently located items belonging to the victim, including a red floral tote bag, a black and grey skirt, black stockings, a pair of black canvas shoes, cosmetics and a set of keys from a vacant lot behind a construction site.[14] However, the applicant was not charged with any offence arising from this encounter in the city.

   [12] RTB, R1.

   [13] RTB, R1, [23].

   [14] RTB, 151.

10. Around 5:00 am they took a taxi to Mascot, where the applicant lived with his father and brother. CCTV footage shows that she was wearing his jumper, a ‘hoodie’, when she entered the taxi. When they arrived in Mascot, she paid using her debit card, and they entered the garage assigned to his father’s unit. They consumed some whisky, but she recalls nothing after entering the garage. In her statement she said:

    I have no idea what has happened inside the garage. He was the only person inside the garage with me. After this I woke up in an ambulance. I felt out of my body, I still felt drunk and numb. I didn’t know how to feel. I only remember having sex with this person in the street.[15]

    [15] RTB, R1, [36]-[39].

11. It is not in doubt that he abused her sexually in the garage, because he took a short video recording, which he deleted 12 seconds later. The recording was later recovered by police. On the recording, he can be seen holding his penis and touching her face with it and she can be heard saying “No”. He admitted to engaging in cunnilingus.

12. Apart from a charge relating to the unlawful recording, he was charged with three offences committed in the garage. The sentencing judge records that:

    They attempted to engage in penile-vaginal intercourse. The offender then placed his penis in the victim's mouth and the victim performed oral sex on the offender for an unknown period of time. The offender then performed cunnilingus on the victim, placing his penis inside the victim's vagina for an unknown period of time.

    The offender and the victim then left the garage and at this stage the victim was naked after the offender had taken back his hoodie from her. The offender told the victim to leave, telling her to stand in the eastern side passageway of the apartment block so she could not be seen from the street.

    The offender then went back into his unit to get some cash so he could buy something from a nearby bakery. The offender left the unit and did not see the victim, so assumed that she had left. He attended the bakery before returning to the unit and going to bed.[16]

    [16] G2, 36.

13. That the victim was much the worse for drink was also commented upon by the judge, who noted:

    Upon arrival at the hospital the victim participated in a sexual assault investigation kit, a SAIK. The offender's DNA was detected in a buccal swab.

    At 1pm on 30 November 2019 blood and urine were taken for analysis from the victim and her alcohol reading was 0.15 grams per 100 millilitres.

    There was an opinion given by a pharmacologist that her blood level was most likely to be .267 grams at approximately 4am and .201 grams at about 8am in the morning. It is also noted that the amyl nitrate which she said had sniffed earlier in the evening at a venue in Oxford Street would not have had any effect on her at the time of the alleged offences.[17]

    [17] G2, 34.

14. There is no doubt that in such a state the victim was incapable of giving any meaningful consent for sexual contact.

15. The applicant was interviewed by police. After some initial denials, he admitted that they had had oral sex in the garage. He initially said that it was consensual, but this could not be maintained in light of the video evidence. He was arrested on 6 December 2019 and appeared in Waverly Local Court. On 12 December 2019, he was released on parole.[18] On 3 December 2020, he pleaded guilty to two counts of sexual intercourse without consent, and one count of attempted sexual intercourse without consent. One count of intentionally record intimate image without consent was taken into account on the Form 1.[19] He was convicted and sentenced to an aggregate term of three years imprisonment with a non-parole period of two years.

    [18] G2, 48.

    [19] G2, 29-30.

16. On 18 January 2021, his visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he did not pass the character test. On 12 February 2021, he made representations seeking revocation of the cancellation of his visa.[20]

    [20] G2, 49-68.

17. On 25 November 2022, he was transferred from Goulburn Correctional Centre to the Villawood Immigration Detention Centre (VIDC).[21] On 22 December 2022, the Full Federal Court held in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson), that an ‘aggregate’ sentence was not a ‘sentence’ for the purposes of paragraph 501(7)(c). The applicant fell within a large group of non-citizens whose visas had been invalidly cancelled. On 23 December 2022, he was released from immigration detention.

    [21] G2, 73.

18. On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 was passed with retrospective effect, nullifying the effect of Pearson. Therefore, the original decision to cancel the applicant’s visa was taken to have been validly made. He reported to the Australian Border Force and was detained in the VIDC.

19. On 9 May 2023, a delegate of the Minister decided, under subsection 501CA(4), not to revoke the cancellation decision. He was notified of the decision by email sent to his representative on 11 May 2023.[22] On 15 May 2023, he lodged an application in the Tribunal for review of the delegate’s decision.[23]

    [22] G2, 11.

    [23] G1, 1.

    THE HEARING

20. The hearing was conducted in person on 27 July 2023. The applicant was represented by Ms V. Lenton, of Lenton Migration Law, the Respondent by Ms A. Meaney of Mills Oakley Lawyers. The Tribunal heard evidence from the applicant and his mother.

    MATERIALS BEFORE THE TRIBUNAL

21. Written submissions received:

    (a)Applicant’s Statement of Facts, Issues and Contentions (ASFIC) filed on 4 July 2023

    (b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed on 18 July 2023

22. Applicant’s materials:

    (a)Applicant’s Tender Bundle (ATB) filed on 4 July 2023 (52 pages)

23. Respondent’s materials:

    (a)Respondent’s Tender Bundle (RTB) filed on 18 July 2023 (157 pages)

24. Other:

    (a)Section 501G documents filed on 29 May 2023 (301 pages)

    FINDING ON THE CHARACTER TEST

25. A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ pursuant to paragraph 501(7)(c) of the Act and therefore does not pass the character test under paragraph 501(6)(a).

26. On 3 December 2020, the applicant was convicted of two counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent and one count of intentionally record intimate image without consent in the Downing Centre District Court and sentenced to an aggregate term of three years imprisonment with a non-parole period of two years. The circumstances of the offending are detailed above.

27. I therefore find that the applicant does not pass the character test.

    THE SOLE ISSUE

28. Subsection 501CA(4) of the Act provides:

    (4) The Minister may revoke the original decision if:

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

    (b)  the Minister is satisfied:

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

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

29. It is not in dispute that the applicant fails the character test, as outlined above. I now turn to consider whether there is ‘another reason’ why the original decision to cancel his visa should be revoked under subparagraph 501CA(4)(b)(ii) of the Act.

    Exercising the Discretion under subsection 501CA(4)

30. Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or exercise of those powers. Direction no. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).

31. Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:

    (1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic)[24] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. (Emphasis added)

    [24] Should be paragraph 8.5(2).

32. Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in paragraph 8 and four other considerations in paragraph 9. Each of these considerations are considered in detail below, to the extent they are relevant. Paragraph 7 of the Direction provides some guidance as to how the Tribunal is to weigh each consideration. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.

    PRIMARY CONSIDERATIONS

    8.1 Protection of the Australian Community (PC1)

33. Paragraph 8.1(1) of the Direction states:

    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

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

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

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

    8.1.1 The nature and seriousness of the conduct

34. Sexual crimes are viewed very seriously by the Australian government and the Australian community. However, the applicant has no criminal record apart from the offences committed on 30 November 2019. There is therefore no trend of increasing seriousness, and no cumulative effect of repeated offending. The sentence imposed has been noted above.

35. Paragraph 8.1.2 deals with the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal notes the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

36. The Tribunal is required to consider, cumulatively:

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

    b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i. information and evidence on the risk of the non-citizen reoffending; and

    ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

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

1. Paragraph 8.1.2 requires an assessment of the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. According to an assessment report prepared by forensic psychologist Mr K. North for the sentencing hearing, the applicant has a moderate to low risk of offending:  

   In summary, my assessment of [PJBV] revealed a prosocial family upbringing and no prior history of offending behaviour. His education history indicated he experienced learning issues and poor motivation as a child, and had subsequently been influenced by an antisocial peer group during his adolescence. [PJBV]’s peer associations led to the use of alcohol and drugs in the past, and alcohol was identified as a major contributing factor in his index offences. Nil significant mental health issues were identified in the assessment; however, it was noted [PJBV] had experienced a lowered mood since his arrest and had expressed a sense of shame relating to his offending behaviours.

   With regard to his offences, [PJBV] was assessed as posing a moderate-low risk for sexual recidivism based on information available to me at the time of assessment. As such, it is my recommendation he should be referred to moderate intensity treatment to target his risk for relapse to alcohol use and his difficulties in expressing his emotions, in addition to providing him with psychoeducation and counselling specific to his offending behaviour. It is my opinion that through such treatment, and with the continued support of his family members, [PJBV]’s risk for reoffending could be further lowered.[25]

   [25] RTB, R8, 41-42.

2. The applicant was asked about treatment programs. He indicated that he had recently attended an outreach program for alcoholics and expressed a willingness to continue attending. He was not eligible in prison for any sex offender programs because of his low risk assessment.

3. I consider the risk of further acts of sexual assault to be relatively low.

   The nature of the harm – Para 8.1.2(2)(a)

4. The learned judge noted that in taking back his jumper there was ‘[a] level of callousness in his actions’. His Honour continued:

   At this point she was extremely intoxicated, which he recognised. She was completely naked, which was obvious, and in a location to which he had taken her away from safety and assistance. She was especially vulnerable at this point and he did nothing at all to assist her.[26]

   [26] G2, 39.

5. The applicant recognises that his degrading treatment of the victim may well cause her long-term psychological damage, apart from any physical condition suffered in the aftermath of the assaults.

6. The best that can be said about his behaviour is that his thinking and moral sensibility was significantly impaired by his level of inebriation. Regardless, ejecting her from the relative safety of the garage in a state of undress was a shameful act, let alone removing an article of clothing that he had lent her. As Ms Meaney put it, ‘[he] treated her like she was a piece of rubbish’. He expressed remorse and what appeared to be genuine shame to the Tribunal about this aspect of his behaviour.

   Likelihood of engaging in criminal or other serious conduct – Para 8.1.2(2)(b)

7. The deterrent effect of spending two years in prison followed by a substantial period in immigration detention should not be underestimated. The applicant’s substance abuse reflects underlying adjustment issues which have not been fully addressed. However, I do not underestimate the restraining effects of his parents. Although the applicant had preferred to stay with his father when his parents parted, on the ground that his father was less strict than his mother, I note that these events may well have produced a change of attitude. The applicant expressed shame and remorse to the Tribunal for his behaviour. I also note that should he be allowed to remain in Australia, the Tribunal was informed both by the applicant and his mother that he intended to live with her in Queensland.

8. The learned sentencing judge stated:

   The offender has provided a letter that he wished to forward to the victim. I am not sure whether that has been done or is even capable of being done. In any case, the Crown accepted that he is remorseful for his actions and his remorse is expressed in that letter.

   The offender pleaded guilty at the first reasonable opportunity and is therefore entitled to a discount of 25% for a sentence that might otherwise have been imposed. In my view, had this matter gone to trial, a sentence of at least four years and three months imprisonment would have been warranted. I note that I will take into consideration the fact that the offender has been on strict bail conditions since being charged with the offences and I will take that into account in setting the final sentence.

   I am of the view, given the age of the offender, and the need for some treatment for excessive use of alcohol as recommended by his psychologist, a finding of special circumstances can be made in this case.[27]

   [27] G2, 40-41.

9. The applicant appears to understand that he has a serious substance abuse problem, developed over his later teenage years. As these events amply demonstrate, he has imbibed deeply from the poison cup that is teenage binge-drinking culture. The offences were committed at the age of 20. He told the Tribunal that he now considers himself to be an alcoholic.

10. However, when asked whether he intended to consume alcohol in the future, he expressed the view that he would like to enjoy the occasional beer. This is at odds with the conventional wisdom that for an alcoholic, abstinence is the key. He does not appear to appreciate that abstinence is the only safe path for a true alcoholic.

11. Ms Lenton noted that the test is not whether he will ever drink again, but whether he can drink safely. She notes that he was drinking for many years with no offending. However, his behaviour on the night in question provides a shocking wakeup call regarding the dangerous aspects of binge-drinking culture.

12. On one view, the night in question was a shocking aberration. Although he had not previously been in trouble with the law, the record does show that he was an extremely boisterous drunk and had been denied entry to nightclubs and was well known to security staff.[28]

    [28] Statement: RTB, R3.

13. The trial judge noted that the Crown accepted that he was remorseful, as outlined above at [44].

14. The Respondent contends that PC1 weighs heavily against the applicant, because of the nature and seriousness of his offending and the risk to the Australian community should he engage in further criminal conduct.[29]

    [29] RSFIC, [58].

15. The applicant’s solicitor submits that ‘on balance’ PC1 weighs against the applicant, but not heavily.[30]

    [30] ASFIC, [48].

16. The applicant’s offending behaviour was undoubtedly abysmal but can reasonably be seen as out of character. There is no insidious pattern of violent behaviour. His weakness appears to be his lack of control and discipline when it comes to alcohol and drugs.

17. I am inclined to agree with the applicant’s solicitor, to the extent that his offending record taken in its entirety is not sufficiently egregious to eclipse all other considerations.

    8.2 Family violence committed by the non-citizen (PC2)

18. This consideration does not arise and therefore should be given neutral weight.[31]

    [31] RSFIC, [59]; ASFIC, [50].

    8.3 The strength, nature, and duration of ties to Australia (PC3)

19. Paragraph 8.3(1) of the Direction provides that the Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal should also consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

20. The applicant’s family in Australia consists of:

    ·Father - born 1974 in Fiji. Fijian citizen and Australian permanent resident, living in Sydney.

    ·Mother - born 1971 in Fiji. Fijian citizen and an Australian permanent resident, living in Brisbane, Queensland.

    ·Sister - born 1998 in Fiji. She is a citizen of Fiji and Australia, living in Brisbane, Queensland.

    ·Brother - born 2003 in Fiji. Citizen of Fiji and Australia living in Brisbane, Queensland.

    ·Sister - born 2009 in Fiji. Fijian citizen and an Australian permanent resident, living in Brisbane, Queensland.

21. The applicant has very close relations with his immediate family members. Although his parents are separated, they remain on cordial terms and his mother indicated that she visited Sydney to see her sons as often as her professional duties allow, but rarely less than once a month. There are powerful references from his parents and from two of his siblings. He was a popular student at school and seen as having leadership potential. He has worked continuously since leaving school.

22. As noted above, he has lived in Australia since the age of ten. He spent his formative years here. As such, the Tribunal is required to consider the length of time the non-citizen has resided in the Australian community, noting under subparagraph 8.3(4)(a) of the Direction that:

    i.     considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    ii.   more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

23. The Tribunal is required to give considerable weight to the fact that he has spent the past 13 years in Australia, and that he spent a good deal of his formative years here. This is so, regardless of the level of offending.

24. I also note paragraph 5.2 of the Direction which provides:

    (1)  With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. (Emphasis added)

25. The applicant’s parents were concerned that extended family both in Fiji and Australia would come to know the truth of his offending and that there would be considerable shame on the family. Undoubtedly, these concerns placed a heavy emotional and psychological load on the applicant’s parents.

26. They were also concerned about the financial burden that would be imposed on them were he to be removed from Australia. They were understandably concerned about the cost of maintaining him in Fiji.

27. Both parties accepted that this consideration weighs in favour of revocation.[32] The Respondent submits that it does not weigh heavily.

    [32] ASFIC, [60]; RSFIC, [64].

28. I consider that it does weigh heavily, not only by reason of his lengthy period of residence in this country and the fact that he spent his formative years here, but by reason of the very strong social links he has with his pro-social family.

    8.4 Best interests of minor children in Australia affected by the decision (PC4)

29. The applicant has a 13-year-old sister and said that he was close to her and that she would be deeply affected by his removal from the country. Both parties accept that this consideration weighs only slightly in favour of revocation, given that the applicant does not perform any parental role for his sister.[33]

    [33]  ASFIC, [65]; RSFIC, [69].

8.5  Expectations of the Australian community (PC5)

1. Paragraph 8.5(1) relevantly provides:

   (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

   (2) In addition, 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 is 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:

   …

   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; (Emphasis added)

2. Paragraph 5.2(4) provides:

   (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

3. Paragraph 5.2(5) provides:

   (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. (Emphasis added)

4. As previously noted, the applicant has lived in Australia from the age of ten. He is now 24 years of age. He is entitled to the ‘higher level of tolerance’ referred to in paragraph 5.2(5) above. Nevertheless, his treatment of his victim was callous and cruel. Although his offending occurred on one occasion after a long night of drinking when he was highly intoxicated, they were crimes of a sexual nature and undoubtedly very serious.

5. This consideration weighs against the applicant, as it must. The Respondent contends it weighs heavily against revocation.[34] The applicant’s solicitor submits that it weighs against him but does not outweigh PC3 and PC4.[35]

   [34] RSFIC, [76].

   [35] ASFIC, [67].

6. Despite the higher level of tolerance indicated by paragraph 5.2(5), I consider that this consideration does weigh heavily against revocation.

   OTHER CONSIDERATIONS

   9.1 Legal consequences of decision under section 501 or 501CA (OC1)

7. This consideration does not arise and therefore should be given neutral weight.

   9.2 Extent of impediments if removed (OC2)

8. Paragraph 9.2 of the Direction states:

   (1)   Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)    the non-citizen’s age and health;

   b)    whether there are substantial language or cultural barriers; and

   c)    any social, medical and/or economic support available to them in that country.

9. The applicant does not speak Fijian fluently because he has not lived in Fiji since the age of ten and his family speak English. The official language of Fiji is English, but his lack of fluency in Fijian would be a significant disadvantage, especially for an unskilled worker.

10. His father stated, in his letter of support:

    We lived in Fiji until we moved to Australia permanently in 2008 and 2009. We had a visa to work in Australia from around 2002 onwards. We had previously been to Australia for holidays. After the visa was granted, we came to Australia a couple of times, but then we decided to move permanently after the military coup that happened. My wife lost her job there due to the coup. She was a lawyer and magistrate. I moved to Australia first in 2008 or 2009, and then the rest of the family followed in 2009. [The applicant] was 10 years old when he moved to Australia.

11. His mother stated in her letter of support

    1. His whole family lives in Australia, being me, my husband and his siblings;

    2. He has never lived with extended family when he was growing up in Fiji, so to live with extended family on his return will be difficult for him;

    3. He does not speak Fijian fluently to be able to hold fluent conversations in Fijian with extended family members;

    4. Our family financially supported other family members when they needed finance while in Fiji and even on our migration to Australia. When [PJBV] was working, he would often help family members in Fiji that needed financial help. Therefore, [PJBV] will very likely have little to no financial support while in Fiji, which will be difficult for him to support himself;

    5. He has been in Australia since he was 10 years old, and has lived a life where things are accessible, a lot of opportunities and lived a lifestyle that he is accustomed to, which he will not find in Fiji;

    6. He worked at DHL when he left high school. There are no recruitment agencies in Fiji where [PJBV] can put in his resume to find work, and with his criminal record, he will find it extremely difficult to find employment which would offer him the same wage rate he was paid at DHL; and

    7. His friends are in Sydney and he has not kept in touch with his childhood Fiji friends since our migration to Australia.[36]

    [36] G2, 145.

12. The applicant stated that he considers himself to be an alcoholic, although his solicitor confirmed that at no point had he been diagnosed as such. I am prepared to accept that in relation to the provision of medical and remedial services relating to alcoholism, the applicant may be at something of a disadvantage in Fiji, especially if he lacks the support of a strong kinship group.

13. The applicant submits that this consideration weighs heavily in favour of revocation,[37] whereas the Respondent contends it can only weigh slightly in favour and should be given minimal weight.[38]

    [37] ASFIC, [78]

    [38] RSFIC, [86].

14. Given the fact that his father has indicated a willingness to resign from his present employment and accompany his son to Fiji, should that be the decision of the Tribunal, I am not satisfied that this consideration weighs heavily in favour of revocation. However, given that he was removed from Fijian culture as a child, and may be somewhat alienated by his lack of fluency or familiarity with cultural norms, I accept that this consideration does weigh somewhat in favour of revocation.

    9.3 Impact on victims (OC3)

15. This consideration does not arise and therefore should be given neutral weight.

    9.4 Impact on Australian business interests (OC4)

16. The Respondent submits this consideration should be given neutral weight as there is no evidence that non-revocation would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia.’[39]

    [39] RSFIC, [90].

17. The applicant contends this consideration weighs in favour of revocation as the applicant’s father will have to quit his job in the event the applicant is removed from Australia.[40] While I accept that the applicant’s father will suffer a very significant economic setback should he accompany his son to Fiji, this is not a factor that should be weighed in this context. This consideration should therefore be given neutral weight.

    [40] ASFIC, [79]-[80].

    THE WEIGHING EXERCISE

18. The protection and expectations of the Australian community (PC1 and PC5) weigh against revocation of the mandatory cancellation, but neither is decisive. As conceded by the Respondent, the considerations relating to the strength, nature and duration of ties to the Australian community (PC3), the extent of impediments if removed (OC2), and the best interests of minor children affected by the decision (PC4), each weigh in favour of revocation.

1. I accept that the applicant has genuine remorse and has accepted complete responsibility for his offending. He is deeply ashamed. He wrote to the victim to apologise and tendered the letter in court.[41] He has been roundly condemned and punished for his behaviour, not least by the uncertainty of pending deportation.

   [41] G2, 106.

2. His parents attended the Tribunal hearing, and it was apparent that they too are overcome with shame and embarrassment for their son’s behaviour on his big night out. Despite their differences they have come together to support their son. His father has indicated that if he is returned to Fiji his father will return with him at least for a period to assist him to settle in. The mother indicated that they would provide financial support for him should he be returned. The impact on the family would be heavy indeed. They are a good family with much to offer Australia.

3. The applicant is now 24 years of age. He has no prior criminal record. Reprehensible though his conduct is, it stands as an isolated incident. His behaviour on the night in question was deplorable. But after a detailed review of his offending and his history I consider that the callousness displayed on the day in question was out of character. It will, however, haunt him and his family and especially his parents for years to come. Moreover, as he himself recognised, his offending has caused extreme harm to the victim and her family.

4. Nevertheless, having due regard to the applicant’s age, remorse and lack of prior convictions, and given his pro-social family relationships, I consider that he should be given a second chance.

   DECISION

5. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 9 May 2023 that the mandatory cancellation of the applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the applicant's Resident Return (Class BB) (subclass 155) visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

......[SGD]..................................................................

Associate

Dated: 4 August 2023

Date(s) of hearing:	26 and 27 July 2023
Solicitors for the Applicant:	Ms V. Lenton, Lenton Migration Lawyers
Solicitors for the Respondent:	Ms A. Meaney, Mills Oakley Lawyers