PXYJ and Minister for Immigration and Border Protection (Migration) - [2017] AATA 1961

PXYJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1961 (26 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4799
Re:PXYJ
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:26 October 2017
Place:Perth

The decision under review is affirmed.
.......................[sgd].....................................
Deputy President Dr Christopher Kendall
CATCHWORDS
IMMIGRATION – Partner (Migrant) (Class BC), Subclass 100 visa – whether discretion to refuse visa should be exercised pursuant to s 501(1) of the Migration Act 1958 – character test – sexually based offences involving a minor – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – best interests of applicant’s minor children – expectations of the Australian community – other relevant considerations – international non-refoulement obligations – impact on family members – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 5J(2), 5LA, 116, 499(1) and (2A), 500(1), 501(3A), 501CA, 501(6), 501(7)
Direction No. 65 – Visa refusal and cancellation under s 501 – paragraphs 6.1, 6.2, 6.3, 7, 8, 11, 11.1, 11.1.2, 11.2, 11.3, 12.1, 12.2.
Administrative Appeals Tribunal Act 1975 – s 35(3)

CASES
Applicant A V Miea (1997) 190 CLR 225
Ayoub V Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 V Minister for Immigration and Border Protection [2017] FCAFC 96

SECONDARY MATERIALS
Department of Foreign Affairs and Trade Country Information Report: India, 15 July 2015.
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
26 October 2017
INTRODUCTION

Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of a party to proceedings and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.
The Tribunal determined that it was appropriate to restrict the identification of the Applicant in these proceedings, primarily because the applicant has two minor children whose interests merit protection. Accordingly, the Applicant will be referred to below by the pseudonym “PXYJ”. The Tribunal has also determined that it should not disclose the names of PXYJ’s family members, his witnesses and those who provided character references.
This is an application lodged under subsection 500(1)(ba) of the Migration Act 1958 (Cth) (the “Migration Act”) seeking review of a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 14 August 2017. That decision refused PXYJ’s application for a Partner (Migrant) (Class BC), Subclass 100 visa (the “visa”) pursuant to the discretion in s 501(1) of the Migration Act because it was determined that PXYJ did not pass the “character test” in s 501(6)(e) of the Migration Act as a result of being convicted of a sexually based offence involving a 12 year old child.
Having found that PXYJ had not satisfied the character test, the delegate considered whether to exercise their discretion to refuse PXYJ the visa as per the requirements of Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 (“Direction No. 65”). The delegate refused to grant PXYJ the visa.
PXYJ now seeks a review of that decision. Counsel for the Minister contends that the Tribunal should exercise the discretion in section 501(1) of the Migration Act to refuse to grant PXYJ the visa. In particular, it is argued that the principles and considerations in Direction No. 65 clearly weigh in favour of refusing PXYJ the visa.
BACKGROUND FACTS AND PROCEDURAL HISTORY
PXYJ is a citizen of India. He first arrived in Australia on 16 September 2007 as the holder of a Partner (Provisional) (Class UF) visa.
On 15 September 2014, PXYJ’s application for a Partner (Migrant) (Class BC) was refused.
On 2 October 2014, PXYJ sought review of the decision by the Migration & Refugee Division of the Administrative Appeals Tribunal (the “MRD”). He was granted a Bridging A (Class WA) visa following that review.
On 31 August 2015, the MRD remitted the application to the Department of Immigration and Border Protection (the “Department”) for reconsideration with a finding that PXYJ met the Schedule 2 requirements for a Partner (Migrant)(Class BC) visa (G10 at 58).
On 15 September 2015, PXYJ was charged with Indecent Dealing with a Child under 13.
On 24 April 2015, PXYJ’s bridging visa was cancelled under s 116(1)(e) of the Migration Act and he was detained.
On 19 February 2016, PXYJ was convicted in the District Court of Western Australia of Indecent Dealing with a Child under 13 and sentenced to an 11 month intensive supervision order. The sentencing remarks in relation to this conviction describe the facts of that offence as follows (G19 at 144-145):
Briefly, the circumstances are that the victim of your offending and his uncle visited the … shopping Centre in … on the afternoon of … October 2014. The victim was unknown to you. He was aged 12. You were aged 47.
While at the shopping center, the young boy used a public toilet on three separate occasions. On each occasion you stood next to him at the urinal without using the urinal and stared at his genital area. On the last occasion you said to the young boy “That looks nice” while you were looking at his penis, and told the boy to move his hand so that you could look at his penis. The young boy, fearful for his safety, immediately left the toilets and went to his uncle, and told him what had happened.
You were later identified. CCTV footage of the toilet showed that you entered the toilet on 13 separate occasions. When you were interviewed by police on … April, you said that the victim tempted and attracted you.
By decision dated 14 August 2017, a delegate of the Minister refused to grant the visa under subsection 501(1) of the Act on the basis that PXYJ did not pass the character test as he had been convicted of a sexually based offence involving a child (per s 501(6)(e) of the Act) (G5 at 41).
By application dated 14 August 2017, PXYJ applied to the General Division of the Administrative Appeals Tribunal (this “Tribunal”) for review of the visa refusal decision.
ISSUES
The issues for determination by the Tribunal are:
(a)whether PXYJ passes the “character test” as that term is used in s 501(6) of the Migration Act; and
(b)if not, whether PXYJ’s visa should be refused, taking into account the relevant considerations in Part B of Direction No. 65.
EVIDENCE
This matter was heard in Perth on 19 October 2017. PXYJ appeared by video link from Christmas Island and was self-represented. The Minister was represented by Mr Burgess of Sparke Helmore Lawyers.
The evidence before the Tribunal consisted of:
·a 238 page set of G-Documents (G1 to G32) (R1);
·a Statement of Facts, Issues and Contentions from the Minister dated 5 September 2017 (R2);
·a document provided by the Commissioner of Police produced under summons at page 17 (R3), which was read out to PXYJ by Mr Burgess;
·a Transcript of Proceedings in relation to PXYJ’s 2015 District Court of WA sexual offences hearing (A1);
·PXYJ’s Application for Review (A2);
·various certificates of course completion (A3); and
·a letter in support from PXYJ’s wife dated 14 August 2017 (R4).
Although PXYJ did not provide the Tribunal with a written witness statement in support of his case, the Tribunal has noted and treated as PXYJ’s written evidence the following documents that appear in the G Documents:
·a letter from PXYJ to the Tribunal dated 12 August 2017 (G2 at 4;)
·PXYJ’s Personal Circumstances Form (G11 at 63); and
·a letter from PXYJ dated 16 June 2016 (G12 at 74).
The Tribunal also heard oral evidence from PXYJ, his wife and his brother in law.
The Tribunal has reviewed all of the material before it and highlights all relevant materials below.
CONSIDERATION
(i) Does PXYJ pass the Character Test?
The Tribunal must first consider whether PXYJ passes the “character test” as that term is defined in s 501(6) of the Migration Act.
Pursuant to s 501(1) the Minister (and the Tribunal standing in his shoes) may refuse to grant a visa to a person if the person does not pass the “character test” (as defined in section 501(6) of the Migration Act).
This minister’s power in s 501(1) is discretionary. The “character test” is defined in section 501(6) of the Act.
Subsection 501(6)(e)(i) provides that a person does not pass the character test if:
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child;
As noted above, on 19 February 2016 PXYJ was convicted in the District Court of Western Australia of indecent dealings with a child under 13 years – a boy aged 12.
As a consequence of being convicted of a sexually based offence involving a minor, PXYJ does not pass the character test in s 501(6) of the Migration Act. PXYJ did not assert otherwise before this Tribunal.
On the evidence before it, the Tribunal finds that PXYJ does not pass the character test as that term is defined in the Migration Act.
(ii) Should the Tribunal Exercise its Discretion and Refuse PXYJ a Partner Visa?
Having determined that PXYJ does not pass the character test because he was convicted of a sexually based offence against a child, the Tribunal must now determine whether to exercise the discretion granted it to refuse PXYJ’s visa. In so doing, the Tribunal must turn its attention to the guidance provided in Direction No. 65.
Direction No 65 was issued by the Minister on 22 December 2014 and is binding on all decision-makers from that date. It provides guidance to the Tribunal on the application of the character test and the exercise of its discretion.
Relevantly, the Preamble to Direction No 65 (at paragraph 6) states:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
...
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
...
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 65 sets out a number of principles, including the following:
6.3 Principles
...
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No 65 provides guidance as to how this discretion is to be exercised. It provides:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; ...
Paragraph 8(1) of Direction No 65 states:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case ...
In relation to PXYJ’s partner visa application, Part B of Direction No 65 sets out the considerations that are relevant in exercising the discretion in s 501(1) of the Migration Act. These considerations are addressed below.
Primary Considerations
Paragraph 11(1) of Direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(i) Protection of the Australian community from criminal or other serious conduct;
(ii) The best interests of minor children in Australia; and
(iii) Expectations of the Australian community.
Each of the three primary considerations is addressed in relation to PXYJ below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to paragraph 11(1)(a) of Direction No. 65 (i.e. protection of the Australian community), paragraph 11.1 of Direction No. 65 provides:
11.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.
[Emphasis added]
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to the nature and seriousness of the non-citizen’s conduct to date, paragraph 11.1.1 of Direction No 65 relevantly provides:
11.1.1The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In relation to the seriousness of PXYJ’s criminal conduct, the Tribunal notes submissions made on behalf of the Minister in a Statement of Facts, Issues and Contentions dated 5 September 2017 (R2):
26.Under paragraph 11.1.1(a) of the Direction, sexual crimes are viewed seriously. Under paragraph 11.1.1(b) of the Direction, crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) are serious. The applicant in the present case has been found guilty committing a sexual based offence against a child and the Minister therefore contends that the offence is a serious offence.
27.The Minister also contends that the sentencing remarks confirm the seriousness of the offence, with the sentencing Judge noting that the offence was a serious offence due to the persistence and determination of the applicant and the young age of the victim.
In assessing the seriousness of PXYJ’s criminal offending, the Tribunal first turns its attention to PXYJ’s criminal record.
The evidence before the Tribunal shows that PXYJ has the following criminal record (G9):
(a)On 23 October 2013, PXYJ was found guilty of:
(i)Disorderly behaviour in public – fined $400; and
(ii)Without lawful excuse trespassed on a place – fined $400.
(b)On 19 February 2016, PXYJ was found guilty of indecent dealings with a child under 13 years – sentenced to an 11 month intensive supervision order.

It is the latter offence that is of most concern to the Tribunal, although the Tribunal does note PXYJ’s 2013 offences.
In determining whether PXYJ’s conduct should be viewed as “serious”, the Tribunal places considerable weight on the sentencing comments of the courts.
In this regard, the Tribunal notes (in relation to the indecent dealings offence) the summary provided by His Honour Judge Herron on 19 February 2016 (G19) as follows:
I turn to deal with the issue of the seriousness of the offence, which is demonstrated by the following factors. There was a degree of persistence and determination in your offending, by you standing next to the young boy on each of the three occasions on which he used the urinal when you were not using it, and stood next to him looking at his genital region. There is a sinister overtone in your actions highlighted by you hanging around and entering the public toilets on a frequent basis.
The victim of your offending was a young boy aged only 12. Your offending clearly frightened and traumatised the boy. The public who frequent shopping centres and use public toilets provided should be able to do so without fear of being approached by people in a sexual way, such as you did to the young boy. This is particularly so in relation to children. Your offending in my view was motivated by a sexual interest in the young boy.
I also take into account the following matters: your early plea of guilty, there was no touching, the offending was of short duration, there was no force, coercion or violence used. I accept the seriousness of your offending is towards the lower end of the scale of such offending. (G19 at 145)
…
You are in good physical health. You were reviewed by a clinical psychologist, Ms S, on 7 September 2015, who has provided me with a report dated 14 September. She described you as being in good mental health. She also undertook psychological testing of you. She found it difficult to determine what might have led to your offending because of your unwillingness or inability to discuss your offending.
You described to her that you were bisexual, and that during your 20s, before you were married, you were sexually active with male partners, having numerous sexual, casual encounters with males. More recently, since you moved to Australia, you have sought sexual activities with males on a casual basis, finding partners at city ventures [sic]. It is likely you contracted syphilis during that time. Your wife is unaware of your sexual activity. You have limited sexual intimacy with her.
Ms S said that you appeared to have attempted to repress your sexual inclinations, and have sought solace in your religion to help you change your sexual preferences. You strongly deny any sexual interest in children despite your offending. Ms S was unable to be confident in assessing your sexual interest due to your defensiveness and your inability to discuss such matters openly.
You refused to accept responsibility for your offending when you discussed the circumstances of your offending with Ms S, nor did you display any insight into your offending, or any remorse or empathy for the victim, the young boy. You claimed he looked 18 years old. You stated you became aroused by looking at large penises and you thought the victim was gay.
As I have already noted, Ms S was unable to determine whether you had any possible deviant sexual interest towards children. Again, due to your lack of insight and contradictory explanations for your offending, and your denial of any sexual deviance, Ms S was unable to assess whether you required treatment. She assessed you as being a moderate to low risk of sexual reoffending.
She also noted that the Teachers Registration Board and Working with Children Screening Unit will need to be advised of your offending to prevent you from returning to teaching if you are released from detention. She felt you would benefit from a sexual - from a sex offender treatment program and a group process to assist you in challenging your apparent lack of self-awareness and denial of responsibility for your behaviour.
I've also received a pre-sentence report dated 1 October 2015. That report largely relies upon and repeats Ms S's views and recommendations. Because you are being held in the Department of Immigration Detention Centre a community based disposition was, according to the author, not appropriate. (G19 at 147)
…
Having regard to the fact that your offending is towards the lower end of the scale of seriousness for this type of offending, and having regard to the need for your rehabilitation, particularly some psychological counselling, and despite the fact that Ms S comments that you show limited insight into your offending, I have decided that although the offence committed by you is a serious offence that a term of imprisonment is not justified. (G19 at 149)
PXYJ has not denied that he participated in the commission of this sexual crime. In his letter dated 16 June 2016 PXYJ did, however, offer the following explanation for his conduct (G12):
I take full responsibility for what had happened and I would like to explain my side of the story.
At the time of my offending behavior I had lost my spouse visa – an email sent to me by Immigration on 26/9/2014 which I only read after a week around 30/9/14.
I was under a lot of stress and was perceiving things in a different way with a combination of mixed emotions. This was a low time in my life with suicidal thoughts.
When the incident happened in the toilets of the … shopping Centre the young boy looked much older than he was. When he looked at me I sadly perceived his mannerism in a sexual way. So then I said to him “That’s nice” and asked the boy to remove his hand from his penis.
As I am bisexual, have now concluded that it was wrong and out of line also totally out of character. I feel ashamed and deeply saddened for the young boy and if I could turn back that day I would. Something that I guarantee to the Police Force and Immigration that I would never be in this predicament or appear before the courts again.
As a result of this I can imagine the effects it had on the boy and his family. I also have suffered because of my stupidity and poor lack of judgment.
I have been Deregistered as a teacher. I barely survived my marriage and also lost my kids. I have been detained in the Yongah Hills Detention Centre for the past 13 months and it has given me ample time to reflect on my actions and wrongdoings. I take full responsibility for what I had said and even to this day when I think about it or hear any other similar cases it makes me feel unwell and want to vomit, as it is disgraceful and shameful.
At the hearing PXYJ gave oral evidence that he initially thought he might have acted in the way that he did because he had “smoked too many cigarettes” and was “hallucinating”. He also stressed that he was standing far away from the boy (not next to him) and only frequented the toilets as many times as he did because he had an “upset tummy”. He then explained under cross examination that he did what he did because the boy “had a large penis” and he thought the boy was older than he was because he “was quite tall”.
With respect, these explanations do little to lessen the seriousness of this offence. It does, however, arguably say much whether PXYJ is indeed remorseful for what happened or whether he continues to blame others for his conduct – an issue discussed further below.
The Tribunal notes that in considering the nature and seriousness of PXYJ’s criminal offending, sexual offences and offences against a vulnerable child are viewed very seriously. Here, the seriousness of PXYJ’s actions are also reflected in the sentencing remarks of His Honour Judge Herron who described PXYJ’s actions as having a “sinister overtone” and motivated by “a sexual interest” in a child. Sentences involving the imposition of an intensive supervision order (“ISO”) are significant in the sentencing hierarchy, especially where an offender has no significant prior criminal history. PXYJ was sentenced to an ISO. This too reflects the seriousness of the sexual offence involved.
Applying the principles in paragraph 11.1.1 of Direction No 65, the Tribunal finds that, viewed objectively, PXYJ’s crimes are indeed serious and of considerable concern. They involve a sexual crime against an innocent child who, on the evidence, was clearly traumatised by what happened. The sexual offence committed against this young boy weighs heavily in favour of refusing PXYJ’s spouse visa. The Tribunal agrees with and stresses the remarks of Judge Herron that PXYJ’s behaviour reflects a degree of “persistence and determination” towards and against a minor that cannot be excused.
b) The risk to the Australian community should further offences be committed
Paragraph 11.1.2 of Direction No 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether PXYJ represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Paragraph 11.1.2 provides:
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, 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 from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any 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); and
iii. the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
In relation to his issue, the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 5 September 2017 (R2):
31.… the nature of the harm to victims if the applicant were to reoffend in the future is very serious.   [T]he evidence suggests that the applicant poses some risk of reoffending. Specifically, the sentencing remarks note that the psychologist who assessed the applicant for the pre-sentence report found that there were ongoing risks:
You refused to accept responsibility for your offending when you discussed the circumstances of your offending with Ms S [the psychologist], nor did you display any insight into your offending, or any remorse or empathy for the victim, the young boy. You claimed he looked 18 years old. You stated you became aroused by looking at large penises and you thought the victim was gay. As I have already noted, Ms S was unable to determine whether you had any possible deviant sexual interest towards children. Again due to your lack of insight and contradictory explanations for your offending, and your denial of any sexual deviance, Ms S was unable to assess whether you required treatment. She assessed you as being a moderate to low risk of sexual reoffending.
32.Even if the Tribunal were to find that the applicant posed a low risk to the community if the visa was granted, the Minister notes that:
a.        that the risk is ‘low’ does not mean that it can be discounted.
b.        Further offending by the applicant cannot be ruled out.
c.The evidence does not establish that the applicant has full insight into his conduct.
d.The pre-sentence psychology report recommended that the applicant undertake a sex offenders treatment program. There is no evidence before the Tribunal that the applicant has undertaken any rehabilitation programs aimed at curbing his sexual offending.
e.The applicant has not provided any evidence of supports that would be in place should to assist in his rehabilitation should he be granted the visa.
33.In any event, applying the guidance in paragraphs 11.1.2(1) and (2) of the Direction, and given the nature of the offences, the Minister contends that the risk of the applicant reoffending, even if assessed as low, is unacceptable. In light of Principle 4, the Minister contends that any risk of the applicant reoffending is unacceptable given the seriousness of the applicant’s past conduct and the harm caused were such conduct to be repeated in the future.
34.As such, the Minister contends that this consideration weighs in favour of refusal.
The Tribunal also notes that in a statement of reasons for refusal of a visa under s 501(1) of the Migration Act (G8) the delegate of the Minister said:
Risk to the Australian community
8.[sic] I have considered whether PXYJ poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps PXYJ has undertaken to reform and address his behavior. I have also taken into account PXYJ's overall conduct in the custodial and non-custodial environment, and his insight into the offending.
9.Judge Herron noted in his Sentencing Remarks that PXYJ refused to accept responsibility for his actions nor did he display any insight into his offending, or any remorse and empathy for the victim when he discussed the circumstances of his offence with Ms S. I find this lack of insight to be concerning.
10.I acknowledge PXYJ's comments that that he has learned a valuable lesson and has also suffered from his past mistake. He said his family is aware of his offending and he feels ashamed for putting his family through this ordeal. Since being detained PXYJ has had time to reflect and he says he is truly remorseful for his offending. He requested to be given another chance and be re-united with his wife and two children. PXYJ vowed not to put himself in that predicament again. PXYJ admitted that what he did was wrong and out of character. He says he is ashamed and deeply saddened for the young boy.
11.I have taken into account PXYJ's comments regarding the stress he was in which he stated contributed to his offending.
36.[sic] Mr ______, a school principal from where PXYJ used to be employed as a casual tutor for __ months provided a character reference. Mr __ indicated that he was aware of PXYJ's charges and described him as hardworking, professional diligent, timely and an efficient man who is well organised and has not had any issues relating to staff or students.
37. I note that PXYJ has been deregistered as a teacher.
38.I have taken into consideration that PXYJ has applied for a Partner (Migrant) (Class BC) visa, for the purposes of permanently migrate to Australia. I have considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application.
12.[sic] I find PXYJ's offence, committed against a child in a public place, to be particularly disturbing. I find that PXYJ has not shown sufficient insight into his offending nor has he demonstrated any significant rehabilitative efforts. While I accept that PXYJ is remorseful, I cannot be satisfied that he no longer presents a likelihood of reoffending.
13.Having considered all available information detailed above, including PXYJ's criminal history, I find that there is an ongoing risk that PXYJ will reoffend. PXYJ has been convicted of a sexual offence against a 12 year old boy in a public toilet. If PXYJ did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological and physical harm to a member of the Australian community, and in particular vulnerable persons such as children.
The Tribunal notes that in his Personal Circumstances Form, PXYJ writes that the likelihood of him reoffending is ‘nil’ (G11 at 69). He further states:
As [sic] the time that this happened I wasn’t thinking straight and had problems in my life. Since then I have rectified my bad judgments in life and I would never put myself in that predicament again. Also being in detention has taught me a valuable lesson in life.
In the same form, PXYJ went on to state:
Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?
First of all I have learnt a very serious lesson as a result of my wrong-doing. I have suffered for the past 2 years and also so ashamed that I had to put my family through this ordeal. I am a father myself and I feel deep regret and remorse for the young boy and his family. Since I have in [sic] detention I have had ample time to reflect on my actions and wrong doings. I have great remorse for the event that took place on that day and everytime I think about it I break down and cry. I please [sic] with you to please give me another chance to be united with my family.
At the hearing, PXYJ again stressed that he would not re-offend and indicated that he was sorry for what had happened. He highlighted the numerous rehabilitation programs he had taken in prison and the Tribunal has noted the reference letters provided by his wife and a former employee. The Tribunal also heard evidence from PXYJ’s wife and brother in law – both of whom described PXYJ as a good husband and father who was under a lot of stress when he did what he did what he did to the young boy the subject of PXYJ’s sexual offence conviction.
In considering the risk of harm to the Australian community, the Tribunal must have regard to the nature of the harm to individuals or the community should PXYJ engage in further criminal or other serious conduct and the likelihood of PXYJ engaging in further criminal or other serious conduct. The Tribunal also notes that some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable. Sexual crimes against minors fall into this category.
The Tribunal has grave concerns about PXYJ’s conduct in relation to his sexual convictions and his character more generally. PXYJ has been found guilty of Indecent Dealing with a Child under 13. The Tribunal is not convinced that PXYJ fully appreciates that what he did was wrong. Remorse requires at least a basic understanding that your action are your actions and that no other person is to blame – particularly when that other person is a child. Here, PXYJ continues to justify his behaviour on the basis that the boy in question looked “older”. He further justified his behaviour on the basis that the boy had a “large penis” and was sexually provocative – something which indicates a complete lack of reflection PXYJ’s his part. The evidence overall reflects a failure to accept responsibility for his offending and little insight or remorse.

Overall, PXYJ seems to have completely failed to appreciate the seriousness of what he did to this young boy. This lack of self-reflection raises serious concerns about the chances of him reoffending in this manner in the future.
In relation to rehabilitation, as correctly noted by the Minister above, the pre-sentence psychology report recommended that PXYJ undertake a sex offender’s treatment program. There is no evidence before the Tribunal that PXYJ has undertaken any rehabilitation programs aimed at curbing his sexual offending. Nor, when asked by this Tribunal, did PXYJ indicate that he had made any inquiries about available programs in the community if he is released from Detention – or, indeed, whether he is even prepared to participate in a program of this nature. This is troubling.
Based on the evidence before it, the Tribunal considers that there is a risk that PXYJ will reoffend if returned to the community in Australia. Applying the guidance in paragraphs 11.1.2(1) and (2) of Direction No 65, and given the nature of PXYJ’s sexually based offence, his role in the commission of that offence and his failure to demonstrate an awareness of the wrongs involved, the Tribunal finds that the risk of PXYJ reoffending is completely unacceptable in the circumstances of this case. Any risk of PXYJ sexually violating another child is completely unacceptable. That risk here is, on the evidence, very real indeed.
Overall, PXYJ’s behaviour raises serious issues about the extent to which he poses an unacceptable risk to the Australian community. This weighs heavily in favour of refusing PXYJ a visa.
(ii) Best Interests of minor children
PXYJ has two minor age children.
The second primary consideration listed in paragraph 11(1)(b) of Direction No 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by the decision to refuse a visa.
Paragraph 11.2(4) of Direction No. 65 sets out the factors the Tribunal must consider if relevant. They are:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In relation to the best interests of PXYJ’s children, the Tribunal notes that the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 5 September 2017 (R2):
37.The Minister contends that the best interests of the child should be given limited weight in circumstances where:
a.The mother currently fulfils a parenting role for the children: 11.2(4)(e) of Direction 65.
b.Given the nature of his offences, it is arguable that the applicant is unlikely to play a positive parenting role in the future: 11.2(4)(b) of Direction 65.
c.There is no independent evidence of the effect of any separation from the applicant and there is ability for the applicant to maintain contact with the children in other ways (i.e. telephone/video communication and/or the child travelling to India with the father): 11.2(4)(d) of Direction 65.
In his personal circumstances form dated, PXYJ relevantly contended as follows (G11):
My relationship with [my daughter] began from [date of her birth] till date. I contact and speak with her 3 times a week.
My relationship with [my son] began from [date of his birth] till date. I contact and speak with him 3 times a week.
I play a vital role in their lives. Activities like helping them with their homework, preparing lunch and snacks for both for school every day, taking them to school with my wife on days I don’t work. Taking them shopping, church family gatherings and outings as a family.
…
I have not seen my kinds since 18/12/15 because my wife does not drive and have had no visits in detention. My detention has had a deep impact on the kids. It has affected [my son] a lot as he does not eat properly and also affecting his studies.
They keep asking Mum when they will see me. It has had a mental and psychological affect on both of them.
…
… I would loose [sic] my family, my wife and my two children, [my daughter] aged 8 and [my son] aged 7. My family would not be able to go to India, so that means I would lose them forever.
PXYJ also stated, in his letter dated 16 June 2016, (G12) that his being removed from Australia would have a “traumatic effect’ on his children.
PXYJ’s wife gave oral evidence that the children miss their father a great deal. She deeply regrets that the children are unable to visit their father in detention and says the children are sad without their father and are desperate to see him.
PXYJ’s brother in law also gave oral evidence that PXYJ was a good father who cared deeply for his children.
At the hearing, PXYJ again stressed that he loved his children and that they needed his presence in their young lives.
It is noted that in the Statement of Reasons for Refusal (G8) the delegate for the Minister said:
14.I gave primary consideration to the best interests of any minor children who may be affected by the refusal of PXYJ's visa application.
15. PXYJ has two Australian citizen children; [daughter] … and [son] …
16.PXYJ submits that he has had full parental responsibility to his children since they were born. He admits that he had not seen his children since he was detained because his wife doesn't drive so they couldn't visit him in detention. Despite the distance PXYJ stated that he continues to communicate with his children by phone three times a week.
17.PXYJ stated that his current absence in his children's life has had a mental and psychological effect on them. In his personal details form he has indicated that he plays a vital role in their lives and before his conviction he would help them with their homework, preparing lunches and snacks for school. On his days off he would take them to school and have family outings on weekends. PXYJ submits that his two children need their father and he has full parental responsibility for his children.
18.I have considered the comments PXYJ has made in relation to the role he plays in his children's lives and the hardship that he states they have suffered since he entered immigration detention. In particular, I acknowledge that the separation has affected [son’s] studies and eating habits and that they both miss their father.
19.I note that PXYJ’s most serious offence was committed against a young boy and that PXYJ's children are also young. I also note the absence of supporting documentation from his partner, or from friends or family supporting PXYJ's comments.
20.Nevertheless, in the absence of contradictory information I find it to be in the best interests of [daughter] and [son] that their father's visa application is not refused to allow them to continue having meaningful contact with him until they become adults.
The Tribunal agrees with this assessment. On the evidence presented, the Tribunal accepts that it is in the best interests of PXYJ’s children for the decision to refuse PXYJ a spouse visa to be set aside. This conclusion weighs in PXYJ’s favour. It is noted, however, that pursuant to paragraph 8(5) of Direction No 65, one or more of the primary considerations may outweigh other primary considerations. Here, the Tribunal finds that although the best interests of PXYJ’s children is indeed a consideration that weighs in favour of setting aside the decision to refuse PXYJ a spouse visa, this consideration is outweighed by the other primary considerations. While it is certainly the case that PXYJ’s children will suffer to some extent if their father returns to India, there is no evidence that they will not be able to maintain contact with him if this happens. Nor is it evident that their mother will not be able to fulfill necessary parenting duties. Overall, and importantly, any disruption or negative consequences here do not outweigh the concerns raised above by the Tribunal about the risk of continuing sexual and psychological harm to the Australian community (in particular vulnerable children) if PXYJ is granted a visa and allowed to stay in the Australian community.
iii) Expectations of the Australian Community
In relation to paragraph 11(1)(c) of Direction No 65 (the “expectations of the Australian community”), paragraph 11.3(1) of Direction No 65 provides:
11.2Expectations of the Australian Community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 a visa. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this third primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No. 65 and, in particular, the principles that:
(i)the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
(ii)non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
In relation to the issue of the Australian community’s expectations, Counsel for the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 5 September 2017 (R2):
The Expectations of the Australian Community
38.This primary consideration heavily weighs in favour of refusal. The Direction indicates at paragraph 11.3(2) that visa refusal 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 a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
39.The Minister also notes Principle 2, confirming the expectation of the Australian community that a person who commits serious crimes should have their visa application refused.
40.The Minister also notes Principle 6, confirming that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
41.The Minister contends that the Australian community would expect that the applicant, being a visa applicant who has committed a serious sexual offence against a 12 year old boy would be refused a visa.
The Tribunal agrees. While the Australian community would have some concerns for PXYJ’s own children should he leave Australia, the Tribunal finds that any such concerns would not outweigh the justifiable concerns expressed by the community in relation to sexual offences committed against a young boy. Sexual crimes by a person against a child are particularly abhorrent. In the circumstances of this case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime of a sexual nature against a child under 13, who has shown no true appreciation of the wrong committed or provided any evidence to demonstrate that it will not happen again, should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 12(1) of Direction No 65 states:
12 Other considerations – visa applicants
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)       International non-refoulement obligations;
(b)        Impact on family members;
(c)       Impact on victims; and
(d)       Impact on Australian business interests.
The Minister’s decision, although not a decision to “cancel” a visa but, rather, a decision to refuse to grant a visa is, in practical terms, akin to a decision to cancel a visa held by PXYJ. Consequently, the Tribunal considers it appropriate in PXYJ’s case to take into account any other relevant considerations.
Based on the evidence currently available, the “other” considerations that may be relevant in the present case and should be assessed By the Tribunal are:
(i)Australia’s international non-refoulement obligations, if any, to PXYJ; and
(ii)the impact on PXYJ’s family members of a refusal to grant him a visa;
International non-refoulement obligations
Direction No. 65 provides as follows in relation to Australia’s non-refoulement obligations:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
PXYJ arrived in Australia as the holder of a Partner (Provisional) (Class UF) visa. He has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. He is accordingly entitled to apply for a Protection visa.
Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to PXYJ. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.
That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal should seriously consider assessing (to the extent that it can on the evidence) any type of harm that might arise to him should PXYJ be deported to India. This is so regardless of whether he has specifically frames his risk of harm as a non-refoulement issue.
In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing.
In these circumstances, the Tribunal can only assess the limited evidence before it in determining any risk of harm to PXYJ. This is arguably less than ideal given the possible negative consequences for an applicant in this context.

PXYJ did not claim before this Tribunal that he had any safety concerns in relation to his state of health. Nor does the Tribunal find that any such concerns arise. PXYJ has been treated for syphilis while in Australia and, on the evidence, he has no mental health conditions in need to ongoing treatment. Further, PXYJ is not claiming that he will face persecution because he is a bisexual male. Nor does it appear that any such concerns that might exist are legitimate on the evidence. The country information reveals that although India remains a legally and morally conservative society, it now has a vibrant and politically active LGBTI community.
PXYJ claims that he holds a well-founded fear of persecution from members of his local community in India on the basis of his child sex offences criminal conviction. In effect, he claims that his life might be in danger because India has a “very strict culture” (G11 at 72). He states that everyone in his family and local community knows “what he did”. This, he states, has been shameful for him and his family and will mean that he will never get job in India. In relation to persecution arising from his child sex offences, the Tribunal has almost no evidence before it in relation to whether PXYJ will actually face harm if returned to India. Nor could PXYJ explain why he needed to move back to his particular region – rather than elsewhere in India.
The Tribunal accepts that PXYJ’s criminal conviction is a matter of public record in his local community. The question, however, is whether as a result of this, PXYJ will face harm of the sort envisaged in Direction No. 65. In this regard, the Tribunal can only rely on the evidence before it.
The Tribunal notes that persecution by private individuals or groups does not amount to persecution for the relevant purposes unless the State either encourages it or appears to be powerless to prevent that private persecution.
The Tribunal notes that, when considering the previous statutory framework applicable to Australia’s protection obligations, the High Court has stated in Applicant A v MIEA (1997) 190 CLR 225 at 233:
A person ordinarily looks to ‘the country of his nationality’ for protection of his fundamental rights and freedoms but, if ‘a well-founded fear of being persecuted’ makes a person ‘unwilling to avail himself of the protection of [the country of his nationality]’, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent... Thus the definition of ‘refugee’ must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality.
The Tribunal also notes the following comments of McHugh J in the same case (at 257-258):
The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.
The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.
There is absolutely nothing before the Tribunal that would suggest that the Indian state would tolerate, condone or fail to control circumstances where PXYJ might face physical harm or degradation or widespread discrimination to the extent that such conduct could either amount to a real chance of serious harm or a real risk of significant harm being occasioned to PXYJ. Indeed, the Country Information available to the Tribunal satisfies the Tribunal that the Indian State provides an adequate level of state protection for the purposes of s 5J(2) of the Migration Act, as set out in s 5LA of the Migration Act (Department of Foreign Affairs and Trade Country Information Report: India, 15 July 2015).
The Tribunal, therefore, finds that PXYJ’s claims that he will face harm in India, taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to India now, or in the reasonably foreseeable future.
In the circumstances of this case and on the evidence before it, the Tribunal is not satisfied that any non-refoulement obligation arises. This should not be seen, however, as a comment by the Tribunal as to the prospects of any future protection visa application.
Impact on family members
In relation to paragraph 12.1(b) of Direction No 65 , paragraph 12.2 of Direction No 65 provides:
12.2Impact on family members
(1) Impact of visa refusal on 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 has already assessed the impact that not revoking the decision to refuse PXYJ’s spouse visa will have on his children. The Tribunal repeats its conclusions in that regard here. The Tribunal must also focus its attention on the impact of a decision not to grant PXYJ’s a visa on PXYJ’s wife.
In relation to this issue, the Statement of Facts, Issues and Contentions from the Minister dated 5 September 2017 (R2) relevantly contends:
Impact on family members
55.The applicant has some family ties with Australia in that his wife and two children live in Australia as citizens. There is no evidence as to why the applicant’s wife and children could not relocate with the applicant to India if his visa was not reinstated.
56.Furthermore, the Minister notes that whilst the applicant has claimed that his absence is having a psychological effect on the children, he has advanced no evidence in support of this claim. The applicant’s evidence is that he has not been visited by his children or wife since being detained in 2015.
57.The Minister contends that this factor is not sufficiently compelling so as to outweigh the considerations weighing against the granting of the visa.
In relation to this issue, PXYJ relevantly contends in his Personal Circumstances Form as follows (G11 at 68):
It has shocked my family. They are devastated. They are praying for me to be united with my family again. They are aware of my charges and that I am in detention. I also keep in touch with them on a constant basis.
PXYJ believes that if his visa is refused his wife will suffer as he held the family together – financially and otherwise – in the past. At the hearing, PXYJ’s wife explained that she is struggling without her husband as she has no car and is not gainfully employed. She is participating in a work for the dole scheme.
PXYJ and his wife have been together since 2006 and were married in 2007 (G15). He indicated in his Personal Details Form that he had been in contact with his wife almost every day (G11).
The Tribunal notes that in a letter of support (G4 at 40), PXYJ’s wife writes:
First, I would like to state that we are of Anglo-Indian background and so we speak only English at home. We follow the western culture and way of life.
[PXYJ] has been actively involved in calling us diligently and keeping in touch with me and speaking to the kids at least 2 or 3 times a day from the time he has entered detention.
[PXYJ] has been helping me get the kids get ready for school by preparing their lunch boxes and getting their bags ready for school and at times where he has no work he accompanies me to school.
[PXYJ] has been a hardworking father to his family being the sole bread winner. He has been teaching with the Department of Education since 2008 until he went into detention and has also been teaching at __________ on the weekends teaching Year 5 and Year 6 students to earn extra money for the family.
[PXYJ] accompanies me to Church, Doctor, visits to the park and family gatherings. He plays a vital role in which we attend as a family unit.
Since he has been detained the children are missing their father very much and it has affected them emotionally, mentally, psychologically, their studies and growth.
I conclude requesting you to please give [PXYJ] a second chance so he could be united with his family.
The Tribunal acknowledges that PXYJ’s wife will be in a difficult position should PXYJ be deported. She will be the sole parent of two young children and will be solely responsible for providing for them. She will inevitably struggle.
On the evidence before it, the Tribunal finds that this factor weighs in favour of the Tribunal granting PXYJ his spouse visa. It does not, however, outweigh the two primary considerations detailed above in relation to the safety and expectations of the Australian community. In that regard, the Tribunal notes that PXYJ’s wife does have the option of working and there is nothing to suggest that she doesn’t intend to do so in the future. She also has the support of other family here, including at least one sister and brother. While life will inevitably be difficult initially for her and her children, any hardship cannot outweigh the very serious concerns for the safety of the Australian community arising from PXYJ’s very serious sexual offending against a minor and the risk of future offending.
CONCLUSION
Having been convicted of a sexual offence against a minor, PXYJ does not pass the character test in s 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise its discretion to refuse PXYJ’s visa, the Tribunal has attached significant weight to the fact that PXYJ committed a sexual crime against a minor – specifically, by indecently dealing with young boy aged 12.
The Tribunal has taken account of the following factors detailed in paragraph 11.1.1 of Direction No 65:
(a)sexual crimes are viewed seriously – noting that PXYJ was convicted of a sexual crime;
(b)crimes against vulnerable members of the community (such as minors) are serious – noting that PXYJ dealt indecently with a young boy in circumstances where the child was vulnerable to his advances;
(c)the sentence imposed by the courts for crimes – noting that, in relation to PXYJ, an ISO was ordered despite PXYJ having a very limited criminal record.
On the evidence before it, the Tribunal finds that PXYJ should, as per paragraph 6.1 of Direction No 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that PXYJ may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals (in particular, children) should PXYJ engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct. On the evidence, PXYJ has taken few, if any, positive steps towards rehabilitation for his sexual misconduct and shows little appreciation of the seriousness of his sexual misconduct. In the circumstances, the Tribunal believes that there is a very real, ongoing risk of reoffending and, as such, an unacceptable risk to the safety of the Australian community.
Given the nature of the sexual crime committed, the Tribunal is also of the view that the Australian community would expect that PXYJ’s visa be denied. Sexual crimes by an adult against a child are particularly abhorrent. In the circumstances of this case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime of a sexual nature against a child under 13, who has shown no true appreciation of the wrong committed or provided any credible evidence to demonstrate that it will not happen again, should expect to be denied the right to stay in Australia.
There are considerations that weigh in PXYJ’s favour. These include the negative consequences of his deportation on his minor children and wife. These considerations do not, however, outweigh the two primary considerations detailed above in relation to the safety and expectations of the Australian community. While life will inevitably be difficult initially for PXYJ’s wife and children, this does not outweigh the Tribunal’s concerns for the safety of the Australian community arising from PXYJ’s serious sexual offending against a minor and the risk of his offending in the future. On balance, the primary considerations referred to above, which should generally be given more weight, outweigh these other considerations.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65, and on the evidence before the Tribunal, the correct and preferable decision is to refuse to grant PXYJ his requested visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

.....................[sgd]...............................
Administrative Assistant
Dated: 26 October 2017

Date of hearing: 19 October 2017

Applicant: In person

Representative of the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	19 October 2017
Applicant:	In person
Representative of the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers