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

PYYV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2163 (1 July 2024)
Division:GENERAL DIVISION
File Number: 2024/2247
Re:PYYV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:1 July 2024
Place:Hobart

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides to affirm the decision under review.
............................[signed]..................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a citizen of the Republic of India – applicant held skilled visa – visa cancelled owing to substantial criminal record – sexually based offences involving a child – applicant made representations to delegate of Minister – delegate refused to revoke mandatory cancellation – request for review by Tribunal – new ministerial direction – primary considerations – protection of Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – expectations of Australian community – legal consequences of decision – extent of impediments if removed – low risk of reoffending is found but very serious nature of offending and recklessness of offending means even low risk is unacceptable - decision under review is affirmed
Legislation
Administrative Appeals Tribunal 1975 (Cth)
Community Protection (Offender Reporting) Act 2005 (Tas)
Criminal Code Act 1934 (Tas)
Migration Act 1958 (Cth)
Sentencing Act 1997 (Tas)
Victims of Crime Compensation Act 1994 (Tas)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Ismail and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 7 June 2024/commenced 21 June 2024)
The Concise Oxford Dictionary; Fourth Ed. 1951. Oxford University Press; London
REASONS FOR DECISION
Senior Member D. J. Morris
1 July 2024

The Tribunal has made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the Applicant’s name in these proceedings. The reason is because the principal offending which will be referred to relates to a minor. The identity of other individuals in these reasons will be anonymised. The Applicant will be known by the anonym ‘PYYV.’
PYYV was born in the Republic of India in July 1990, and is a citizen of that country. He is aged 33. He first arrived in Australia in July 2014 as the holder of a student visa. He was granted a Class SN Subclass 190 Skilled Nominated visa on 21 February 2022 and held that visa until it was cancelled on 10 August 2023 under s 501(3A) of the Migration Act1958 (‘the Act’).
The reason the visa was cancelled was because a delegate of the Respondent was satisfied that PYYV did not pass the ‘character test’ in the Act because of s 501(3A)(a)(ii) of the Act, which provides that if a Court in Australia or a foreign country has convicted a non-citizen of one or more sexually based offences involving a child (see s 501(6)(i) of the Act), the person does not past the ‘character test’. In addition, at the time of the cancellation, PYYV was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory, at Ron Barwick Prison, Hobart.
When a visa is cancelled under s 501(3A) of the Act, the Minister must give the person a notice setting out the decision and invite the person to make representations about the cancellation. The Minister or his delegate may revoke the cancellation of the visa if satisfied that either the person passes the character test, or that there is ‘another reason’ (as it is phrased in s 501CA(4)(b)(ii) of the Act), why the original decision should be revoked.
PYYV was invited to make representations relating to the cancellation of his visa, and did so. On 5 April 2024, a delegate of the Minister decided not to revoke the mandatory cancellation of his visa.
PYYV was notified of this decision on 8 April 2024 by email, and advised that he had the right of review by this Tribunal. He availed himself of that right on 15 April 2024 by applying for a review.
Under s 500(6L) of the Act, the Tribunal must make a decision in relation to the application within eighty-four days of the date after which PYYV was notified of the reviewable decision, otherwise the decision will be affirmed by operation of law. That date is 1 July 2024.
HEARING
A hearing was held on 24, 25 and 26 June 2024. The Applicant was represented by Mr Ross Ahmadzai, of Crystal Migration Legal Services. The Respondent was represented by Mr Rogan O’Shannessy, of Mills Oakley Lawyers. The Applicant called the following witnesses: Ms FC (girlfriend); Mrs EC (mother of girlfriend); five friends who gave character evidence; and Mr Jeffrey Cummins, psychologist, as an expert witness. The Respondent did not call any witnesses.
The Tribunal admitted into evidence the documents which are in the annexure to these reasons. The Tribunal also had regard to an Applicant’s Statement of Facts, Issues and Contentions dated 13 June 2024 with extensive annexures, and a Respondent’s Statement of Facts, Issues and Contentions, also with extensive annexures.
APPLICANT’S OFFENDING HISTORY
Before the Tribunal was an Australian Criminal Intelligence Commission nationally coordinated criminal history check report dated 23 August 2022 (GD, p 37). This report stated that the following entries are recorded of Court appearances by PYYV.
On 15 May 2017 he was before the Hobart Court of Petty Sessions and convicted of the offence of Fail to comply with the direction of a police officer. On a plea of guilty, he was fined $100 and Court costs.
On 11 April 2018 he was convicted of Stand or park a taxi on a public street outside authorised purpose. On a plea of guilty he was fined $159 plus Court costs. On the same date he was convicted of a further count of the same offence, where a conviction was recorded.
In February 2023, PYYV was before the Supreme Court of Tasmania on six charges. One count of Indecent assault and five counts of Penetrative sexual abuse of child or young person. For this group of offences he pleaded guilty and was sentenced to 10 months’ imprisonment, with a non-parole period of six months. The presiding Chief Justice also made an order that the Applicant’s name be placed on the register pursuant to the Community Protection (OffenderReporting) Act 2005 (Tas) and for PYYV to comply with reporting obligations under that Act for seven years. He was ordered to pay a compensation levy of $300 in accordance with the Victims of Crime Compensation Act 1994 (Tas).
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(3A) of the Act provides that the Minister must cancel a visa held by a non-citizen if he is satisfied that the person does not pass the character test.
Section 501(3A)(a)(ii) of the Act requires the Minister to cancel a visa if he is satisfied that the visa-holder has been convicted of sexually based offences involving a child and, under s 501(3A)(b), the person is serving a sentence of imprisonment on a full-time basis at the time the visa is cancelled. Section 501(6)(e) provides that a person does not pass the character test in the Act if a Court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child.
The Tribunal had before it the comments passed on sentencing by the Chief Justice of Tasmania in February 2023 in which His Honour records that PYYV had pleaded guilty to six charges relating to a series of sexual acts that he performed with a 12-year-old girl when he was aged 30.
The Tribunal notes that it was not contested by the parties that the Applicant does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act. The Tribunal is satisfied that PYYV was convicted of one count of indecent assault, contrary to s 127 of the Criminal Code Act 1924 (Tas) (the Criminal Code), and five counts of penetrative sexual abuse of a child, contrary to s 124 of the Criminal Code. As the Tribunal is satisfied that these convictions fulfil the description of sexually based offences involving a child as referred to in the Act, the Tribunal finds that PYYV does not pass the character test.
The question before the Tribunal therefore becomes this: notwithstanding that the Applicant does not pass the character test, is there ‘another reason’ under s 501CA(4)(b)(ii) of the Act why the original decision to cancel his visa should be revoked?
In forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of PYYV’s visa, the Tribunal must have regard to the relevant contents of any direction made by the Minister.
NEW MINISTERIAL DIRECTION
On 7 June 2024, the Minister made a direction under s 499 of the Act, Direction No. 110 (‘the Direction’). It came into effect on 21 June 2024. As there are no accrued rights, the Tribunal must consider PYYV’s application in accordance with the new Direction, not the previous Direction No. 99 to which the delegate who made the reviewable decision had to have regard.
To ensure procedural fairness, on 7 June 2024, the Tribunal (having been provided with a copy of the new Direction) caused a copy to be sent to the parties and alerted them to the fact that Direction No. 110 is the one to which the Tribunal must have regard under s 499(2A) of the Act. I also vacated a previous direction and invited the parties to provide a fresh timeframe for them to lodge submissions in the light of the new Direction, mindful of the eighty-fourth day requirement imposed by s 500(6L) of the Act.
The Direction sets out objectives, principles, and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out three other considerations, which may be relevant to the non-citizen’s circumstances. However, the considerations contained in the Direction do not limit the Tribunal from also considering any other matter that might be relevant to the purposes of the Act.
The Direction sets out Principles at paragraph 5.2 which provide the framework for decision-makers, including the Tribunal, to decide, in this case, whether to revoke a mandatory cancellation of a visa under s 501CA. The Principles are:
5.2 Principles
1.Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2.The safety of the Australian Community is the highest priority of the Australian Government.
[Principle 2 is a new principle which was not in Direction No. 99, the applicable direction considered by the delegate in PYYV’s case.]
3.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.
4.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 [sic] risk of causing physical harm to the Australian community.
5.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.
6.With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7.Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8.The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out that the Tribunal must take into account primary and other considerations where they are relevant to the decision. Paragraph 7(1) provides that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Importantly, the new Direction says, at paragraph 7(2):
The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(emphasis added)
The emboldened words are new in this Direction. Applying the ordinary dictionary definition of the words “generally” and “otherwise,” the Tribunal considers that the logical way the new Direction should be interpreted is to apply a hierarchy in the way it should generally assign weight within the primary considerations.
Having said that, it is important to note that the Direction still notes, as its predecessor did, at paragraph 7(3), that one or more primary considerations may outweigh other primary considerations. In addition, the Full Court of the Federal Court of Australia said the following about the use of the qualifying word ‘generally’ in an earlier version of the Direction, in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.
In addition, the Full Court also held in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35] that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration.
So, the pathway set down by the new Principle 2, and the new wording of paragraph 7(2), that the Tribunal has decided it is logical to follow is this: as a general rule the primary consideration concerning the protection of the Australian community carries greater weight than the other four primary considerations, and, apart from that, the other four primary considerations should be given greater weight than the three ‘other’ considerations which are set out at paragraph 9(1) of the Direction.
The Tribunal proceeds on that understanding to below refer to all the primary and other considerations in the Direction and, where relevant, has assigned weight to particular considerations according to the circumstances of the Applicant.
SUMMARY OF ORAL EVIDENCE
The Applicant
The Applicant adopted his statement of 23 May 2024. He said he first came to Australia in 2014 to attend the University of Tasmania. He has since graduated with a degree from that University. He then was granted a two-year postgraduate visa, subclass 485, and subsequently was nominated by the State for a permanent visa. He first was awarded a bridging visa and then the visa which is the subject of the cancellation being reviewed.
Before coming to Australia, PYYV had undertaken a diploma in food production in India which was assessed by the qualifications authorities in Australia. In terms of travel, PYYV said in 2015 he travelled to New Zealand to see an ex-girlfriend who was living there, but was only out of Australia for about 20 days. After graduating he worked in an uncle’s restaurant in Tasmania and then worked part-time, and later full-time, as a truck driver, driving a milk tanker. He had been working in the same job for about 15 months before he was incarcerated.
At the time of the index offending, PYYV said he was working for a trucking company. Another driver had a crash, so management was looking at footage of the trucks. He was identified using his mobile phone while driving. He was stood down and told they would consider his future employment on the basis of this infraction, because that was company policy. He was told to go home. He did so, and told some friends. Two friends came to his house. Together with a housemate, the four went to a bottle shop and got a carton of beers and food. PYYV estimated to the Tribunal that he had four or five cans of beer that evening.
PYYV said that he had occasionally used the Grindr dating application, he estimated two or three times a month for the previous six months, for random ‘hook-ups.’ He said he used it on weekends because he worked six days a week. He said that he had met married couples, males and females through Grindr. He said couples had come to his house for ‘threesomes.’ He said he had never met anyone who was not at least 18 years old; he estimated the couples he met were generally in their 30s. PYYV said that a person does not have to share personal details on Grindr and that the application is famous for sexual hook-ups. He agreed that the website is generally for gay males and bisexual people.
On the night of the offending PYYV said one of his friends left, his housemate went to bed in his room, and another friend went to sleep on the couch. The Applicant went to bed. He said he was stressed about the possibility of losing his job and could not sleep, so he watched a movie on his mobile phone. The victim (who will be called ‘TC’) had earlier that day sent him intimate photographs of herself and said she was ‘looking for fun’ which he took to mean she wanted to catch up for sex. He also sent her naked photographs.
In the small hours of the morning, the victim sent him a message through the application saying, ‘I am free now.’ They exchanged some explicit messages. She advised her location, which was around three kilometres from where PYYV lives. He told her he would come and pick her up.
PYYV said, when he arrived at about 2 am, the victim was talking to a man, whom she said was her husband. He said she was dressed in an oversize black hoodie with the hood up. He told the Tribunal she looked ‘chubby and healthy.’

PYYV said he was also chatting to other people on Grindr, but did not meet up with anyone else that night. He told the Tribunal, “If I can’t find a couple, I would find a male for a blowjob and just go to bed. It was all consensual.”
PYYV said he wanted to know about the victim. He asked her what she did for a living. He said she told him she was from Queensland but had family and a husband in Tasmania. He told the Tribunal she was not talkative. “I asked her ‘what do you do for work.’ She said, ‘I am a prostitute and I have another job.’ That gave me confidence that she’s a prostitute and has a husband. I knew to be married you had to be 18.”
When they got to his house they went to his bedroom and took their clothes off. He told the Tribunal that the light was on. He then committed the acts that founded the offences. PYYV said, “I had condoms. I asked if she wanted to do it safe. She said, ‘I don’t care’.” He said he pulled out before he ejaculated.
PYYV was asked if in the conversation the victims age ever came up. He responded, “When I met her online, her age was there – 18. Then she mentioned a child and a husband.”
In the morning, the Applicant said the victim asked him to drop her back to the same place where he picked her up. He stopped for fuel and brought them both a coffee. He then dropped her at the supermarket, but never heard from her again.
PYYV said when he got to work that morning, he was told he was to be dismissed because of the company policy on drivers using mobile phones. He said he decided to go to Melbourne that day. In Victoria he drove trucks and applied for jobs. His housemate in Hobart then rang him to say that the police had been around and had left a card asking for the Applicant to contact them. He rang the police and an officer said they wanted ‘a chat.’ He told them he would be back in Tasmania in two weeks. He said the police did not say why they wanted to talk to him, but he had a suspicion it might be to do with trouble he had had with some teenage neighbours.
Around four weeks later, PYYV said he returned to Tasmania, attended the police station and was interviewed by two officers about his interaction with a female on a particular date. He said he was told he was not under arrest, and he consented to a video interview. He declined to contact a lawyer.
PYYV said he took them through his version of the events of that night and it was only at the end of the interview that they told him the victim’s age. He said they asked him ‘five or six times’ how old he thought the female was. He said he responded ’18 or 19’. He said he surrendered his mobile phone, and the police went through it for pictures.
PYYV said he contacted Grindr asking for the ‘chats’ he had had with the victim. He told the Tribunal when a person is blocked, then any chat that had occurred disappeared. He said he had no response from Grindr. He said about a week later he found a photograph of the victim and emailed it to a detective.
The Applicant said about eight or nine months later he was charged. In the meantime he had moved to a location in the north of the State and had a new job. Police had asked him to keep them updated on his address, which he did. He told the Tribunal that when he was charged, his lawyer contacted police and sent him a statement the victim had given to police about using a false name and identity online and meeting up with other people. PYYV said this was a ‘big shock’ and he cried and told his friend that his life was ruined.
PYYV said after he was charged, he was given bail with no conditions except that he had to surrender his passport, which he did. He said his lawyer arranged for the matter to be transferred from the Magistrate’s Court to the Supreme Court, and he appeared before the Chief Justice and was sentenced. PYYV said he was given a custodial sentence of 10 months, and could not apply for parole for the first six months. He said when he received notice his permanent visa had been cancelled, he asked the Parole Board to give him more time to obtain legal representation. The Board gave him six weeks, and he was then granted parole but taken into the custody of the Australian Border Force 15 days thereafter, so his total time in prison was eight months.
In relation to his current relationship, PYYV said he met Ms FC through a mutual friend in September 2022. They went on a few dates and by the end of October 2022 had entered into a relationship. The Applicant said that Ms FC and her mother had been a major support. He said he told Ms FC at the outset about the charges, and she was present at Court for his sentencing. He told the Tribunal that Ms FC spoke to him on the phone regularly while he was in prison, and visited him fortnightly (Ms FC lives several hours’ drive from the prison). He said she had continued to see him regularly, including flying to Melbourne since he was transferred to Victoria in immigration detention.
PYYV said his former employer told him they could not hold his job after he was sentenced, but that he was welcome to apply when he was released.
Under cross-examination, PYYV said he had shown a video of the victim to his friends, but that her face was obscured. The Applicant confirmed he did not use a condom on either occasion he had full intercourse. When asked whether he was concerned the victim might have become pregnant, he said it did cross his mind, but it was not his choice. When asked whether he was concerned he might acquire a sexually transmitted disease, PYYV said he had regular clinic checks because he had men doing ‘oral performances.’
In respect of sharing an image of the victim, the Applicant agreed he had told an examining psychologist, Dr Grant Blake, that it was ‘normal for every guy to do this.’ He said among friends they would share intimate photographs of women with whom they had encounters. PYYV said in the detention centre a psychologist had asked him how he would feel if someone took a photograph of him without permission, and he now appreciated that it was a breach of trust. He emphasised that the image was of the victim in bed covered by bedclothes.
The Applicant said he deeply regretted having sex with a minor when he found out her age. He said he considered she did not realize what she had done and when she grew up it ‘could definitely have a mental health impact.’ Mr O’Shannessy asked if PYYV regretted the impact of her actions or his actions. He responded, “A bit of both. I am not saying it was her responsibility. I felt guilty as soon as I found out. I pleaded guilty. Unfortunately, this happened. She lacked maturity. I had no intention of harming a child. I was purely looking for an adult. There was no criminal intent.” PYYV agreed that the victim was the innocent party.
In respect of his relationship with Ms FC, the Applicant said they have not permanently lived together, but he lived near her family house, and she would come to stay with him for three or four nights a week, depending on her work.
PYYV said some years ago he had a ‘secret’ relationship with another Indian woman, but her family did not accept him as a suitor because he was from a ‘medium’ family, and she was from a very rich family. He said he went to New Zealand to marry her away from the reach of her family, but they broke up instead. He told the Tribunal that where relatives don’t accept a relationship, they can undertake an honour killing.
In prison, PYYV said he undertook a New Directions programme to learn about coping strategies and arousal levels. He said he also did Cognitive Behavioural Therapy (CBT) sessions and a Smart Recovery programme which explained about relapse and stopping unhealthy behaviour.
In respect of his parents in India, he said they knew of his offending that he had slept with a ‘younger person.’ He said his mother had told him she did not want the details and told him to take responsibility. He said he regularly sent some money to help his parents financially; his father has retired, and his mother suffers certain health conditions. He said he also makes donations, through his mother, to a local school in his home village, and donates to the Sikh Temple.
PYYV confirmed to Mr O’Shannassy that he had had about 15 ‘hook ups’ from meeting people in Grindr, and guessed most of them were around his own age.
The Tribunal raised with the Applicant the following statement that he had included in his Personal Circumstances form submitted to the Department of Home Affairs, in response to the question on the form that reads, ‘Are there any other problems you would face if you have to return to your country of citizenship? If so described these.’
PYYV wrote:
Since all this problem arose, the rumour of me having used the application ‘Grindr’ has spread amongst my family members, my community in Australia, but also my village back in India, including the whole Sikh community. I have been labelled as a ‘homo’ for having used this application. I have fear of being harassed and prosecuted because of this. The whole community back home will harass and humiliate me if I am to be there.
(Minor typographical errors corrected.)
The Applicant was asked to elaborate. He said:
In India if you are gay or bisexual, people start to treat you as nuisance or a pest, or dirty in many cases; they mock you. I lived there for 23 years. I remember a gay guy delivered newspapers in my village. People would mock him and not take newspapers from him. I knew people would dig deep into my details after my conviction. In prison it still happened. A friend told me it was going in What’s App groups. News travelled all the way to my village, which is small, only around 1,000 people. My friend said everyone knows. Even relatives I have in the UK and Canada.
When asked how that would place him in fear, PYYV said, “People have already started to call me ‘homo,’ and I haven’t been there for 10 years. People in my village. I am fearful. I can’t go to the police. They want money if you want protection. People would say to me ‘you are a homo; you raped a girl.’”
PYYV said people in his village know he was reported as using Grindr. He told the Tribunal, “They are calling me ‘tempu,’ which is a slang term for homo in India.”
Mr O’Shannessy noted that PYYV had remarked that he had been threatened by his ex-girlfriend’s family in regard to an honour killing and asked if that threat still existed. The Applicant responded, “It never goes away in India. It is a bigger threat than the other one. Ex-girlfriend was from a family of very rich people. Her uncle, who runs a local dog track, said he would kill me because of family honour. ‘Whenever I see you, I’m going to kill you’.”
The Applicant was asked when this uncle had said that. PYYV responded, “I’ve never met him. [I found out] when my girlfriend told me that they wanted her to marry someone else.”
The Tribunal directly asked the Applicant whether this was in 2015. He responded, “2013. Then I was secretly seeing her. I went to New Zealand to marry her. She broke up with me.”
The Tribunal then asked whether PYYV was aware of where his ex-girlfriend now was. He responded, “She is in New Zealand. I heard she is married through a common friend. She contacted me once; I said I wanted no further contact.”
Ms FC
Ms FC adopted her statement of 22 May 2024. She said she had met PYYV through a common friend. She said initially it was just a friendship, but it progressed to a relationship.
Ms FC said that the Applicant told her of his offending early on, and when he told her he was ‘shameful.’ She said she knows the circumstances of the offending ‘from both sides.’ She said she had planned to move in with PYYV before he was imprisoned.
Ms FC said she works in retail in the town in which she lives. She said she has thought about what she would do if PYYV’s visa remains cancelled, and she had decided she would move to India to be with the Applicant.
Mrs EC
Mrs EC adopted her statement dated 22 May 2024. She said she had not known the Applicant for long, but considered him an open, warm and articulate young man. She said she had become closer to PYYV as this process has gone on.
Mrs EC said she first met PYYV in February 2023. Her daughter invited her to a local hotel to meet him.
Mrs EC was asked what she knew about the Applicant’s offending. She said she knew he had been convicted of having sex with an underage person. She said, “Key pieces of information helped him to make his choice. He knew you had to be over 18 to use the dating app. Other information led him to believe she was over 18: her appearance, plus she told him she was married and had a child.”
Mrs EC said he had spoken to PYYV often on the telephone and had visited him in Hobart in prison and a few times since he has been in immigration detention in Melbourne.
Under cross-examination, Mrs EC said: “There was a bad error in judgement, but there was also extenuating circumstances. It was very unintentional. He did not intend to go down that road. He had key pieces of information.”
Mr O’Shannessy noted that the Chief Justice had mentioned PYYV was reckless as to the victim’s age, and asked if Mrs EC accepted that. She responded, “To some degree. But I can understand what led him to make that choice. I’m not trying to dismiss what happened…he had information to believe the person was 18.”
Mr O’Shannessy noted that the Applicant slept with a 12-year-old and asked if there was anything Mrs EC could say that acknowledges PYYV’s culpability in the crime. She responded, “He shouldn’t have continued on with that night. Maybe being told she was married was a red light. He’s done a lot to improve his character.”
Mrs EC said she worried what was being done to support the victim and that it was important she was not forgotten about.
Other character witnesses
Five character witnesses were called. Each had furnished a statement in support of the Applicant. Except for one, who is on a student visa, all are either on permanent visas or are Australian citizens.
A common thread from all their evidence was that they regarded PYYV as a person of good character, who was hard-working and a reliable friend. When pressed on the offending, all except one were generally aware of the nature of the crimes and the age of the victim.
Some of the witnesses said they had young children, and they had no difficulties with PYYV being around them and trusted him in their company. One witness said he was present at the Supreme Court when the Applicant was sentenced. He said he found the charges ‘unbelievable’ and when asked whether he accepted what the Applicant was accused of, said he would not make a statement about that.
Some witness statements referred to the Applicant’s ‘innocence,’ but when pressed on that by the Tribunal, one witness said he considered PYYV innocent because he told the truth. He said that the Applicant admits he did abuse a child but that it was a mistake.
One witness was asked how knowledge of the incident affected his relationship with PYYV. He responded, “No impact on our relationship. I am in touch with the Applicant regularly. Anyone can make a mistake. It was not intentional. This cannot judge his character. He has had so many jobs: uber driver, taxi driver, truck driver. He is a hard-working guy to support his family back at home. There is no difference between us before and after the incident. I can trust him completely with my wife and my kids – 100 per cent.”
Mr Cummins, psychologist
Mr Jeffrey Cummins appeared before the Tribunal as an expert witness. He confirmed he had examined the Applicant and provided a psychological report dated 23 May 2024. Mr Cummins confirmed that he had relevant documents before him including the ‘G’ documents, the sentencing remarks and the Crown Statement of Facts. He also confirmed he had read the earlier psychological report of Dr Blake.
Mr Cummins said that he applied the Static-99R measure of risk tool, which he confirmed is widely used to predict recidivism. He noted that Dr Blake had also applied this tool when he examined PYYV. Mr Cummins told the Tribunal that the Static-99R tool has ten fixed risk factors. The risk factors were: the age of the person on release; whether the person has ever lived with a lover; whether there was a history of non-sexual violence; whether there was a prior conviction for violent offending; whether there was a prior conviction for a sex offence; whether there was a prior sentence; whether there was a non-contact sex offence; whether the victim of the offending was unrelated to the Applicant; whether the victim was a stranger; whether there were any male victims.
Mr Cummins said that he scored PYYV as ‘seven’ under the Static-99R risk tool, which he said was ‘well above average’ risk of reoffending. He noted that Dr Blake had scored the Applicant as ‘four,’ and explained the difference as being that at the time of Dr Blake’s assessment, PYYV had not yet been convicted of any sexual offence, but at the time of his assessment, the Applicant had been convicted and sentenced of six counts.
Mr Cummins said he also conducted a qualitative tool assessment, applying the Risk for Sexual Violence Protocol (RSVP). This is a tool used to identify the presence and relevance of unchangeable and dynamic risk factors associated with future offending. Mr Cummins said the RSVP result suggested that PYYV was at a low to average risk of sexual recidivism and that his risk level would be lower if he possessed insight into his need for help, and if he had already acted on seeking help.
Mr Cummins said that there was no chronicity of offending, meaning the offending conduct occurred on one occasion and with one victim. He said that the victim was ‘compliant, albeit under legal age.’ He said that there was an escalation of offending because it began with kissing and moved on to intercourse. Mr Cummins said there was no abuse of power because the victim was willing, and there was no abuse of trust because PYYV believed the victim to be at least 18 years of age. However, he noted that he ‘wholly understood’ the basis on which the Chief Justice concluded that PYYV did not take all reasonable steps to ascertain the age of his victim.
Mr Cummins noted that there was no denial by the Applicant of his sex offending, and no history of sexual violence or attitudes of sexual entitlement. He noted that there was no evidence of sexual deviance, that PYYV was not attracted to underage persons and was not psychopathic. He noted that at the time of the offending his opinion was that the Applicant was suffering from ‘reactive depression’ because he had been stood down from work.
Mr Cummins said that he took into account that PYYV had subsequently done a mandatory New Directions sex offender course whilst in prison, and after the offending had commenced a new relationship with Ms FC, which was continuing. These were protective factors.
Under cross-examination, Mr Cummins conceded that the Applicant had told him it was “normal for every guy to do that” in reference to sharing a photograph of the victim with his friends, and that this was some evidence of an attitude of sexual entitlement. He agreed that at the time of the offending, PYYV had problems of stress and coping with the potential loss of his job.
When asked whether there was a history of the Applicant using alcohol and indiscriminate sex as a coping mechanism, Mr Cummins said he did not find that. He said while the Applicant admitted occasions of over-drinking alcohol, he did not indicate he was intoxicated at the time of the offending of which he was convicted.
Mr Cummins confirmed that his opinion was that PYYV was a “Low” risk of reoffending. When asked whether he had assessed the validity of the Applicant’s self-reporting as Dr Blake did, Mr Cummins said that he did not. Mr O’Shannessy noted that Dr Blake had concluded that PYYV’s self-reporting was probably unreliable and that his self-description of events was overly favourable. He asked Mr Cummins if that caused concerns to him about PYYV’s reporting. Mr Cummins responded:
I am aware of those results. I used my clinical skills and experience to the extent I could rely on this man. I am aware of the risk category rating Dr Blake had given. We are very close together.

Mr Cummins agreed that if someone is convicted of a sexual offence, by that very fact it cannot be said that they are at ‘no’ risk of reoffending. In his report he wrote (paragraph 65):
I assessed the current risk for committing a further sexual offence as Low, which effectively equates to a negligible risk. In my opinion there is no need for [PYYV] to engage in any further offence specific treatment.
The following exchange then occurred:
Tribunal:  The word ‘negligible’ is editorial?
Mr Cummins:             The lowest level of risk is ‘Low.’ I say in a practical sense it is negligible.
Tribunal:                    But they are different things, though.
Mr Cummins:           I would not expect this man to re-offend. He said he never intended   to have sex with an underage person.
Counsel:  Do you agree Dr Blake assessed some risk?
Mr Cummins:             Yes. But he assessed prior to sentencing, incarceration and a specific course.
Counsel:You agree there is some risk?
Mr Cummins:             Some risk, but I describe it as negligible.
Counsel:Are you saying for anyone rated Low, the risk is negligible?
Mr Cummins:             No. But in this instance. This was a specific situation – the victim was actively involved in deceiving him.
Counsel:It is outside the clinical realm to add ‘negligible.’
Mr Cummins:             The technical level is ‘Low.’ I add to that the circumstance in which he re-offended.
Counsel:What do you mean by ‘negligible’? You don’t mean no risk?
Mr Cummins:             You could say that within ‘Low’ there can be high-low or low-low; it is low-low.
Counsel:The bottom end of the ‘Low’ range?
Mr Cummins:             Correct. He thought the sexual contact was with a person 18 years old or older.
Mr Cummins was asked whether he thought the Applicant’s relationship with Ms FC was a significant factor in reducing his risk of reoffending. He responded that it was of some relevance, but only one factor. “My overall assessment is that the Applicant has learnt his lesson.”
Mr O’Shannessy noted that PYYV’s counsel in Court had conceded the Applicant was reckless as to the victim’s age and did not take reasonable steps to ascertain it. He asked Mr Cummins whether he agreed that the Applicant was reckless as to the age of the victim. The witness responded, “I can’t answer that. I don’t know how that came about.”
The Tribunal noted that there was no mention of any questioning of the Applicant about the victim in the psychological report and asked Mr Cummins whether he asked PYYV about the victim. He responded, “Yes. He said, ‘how can she place herself in that situation?’” The Tribunal asked Mr Cummins whether he referred to that in his report, and he agreed that he did not. He added, “The Applicant said, ‘what else should he have done?’.”
CONSIDERATION
The Tribunal proceeds below to refer to all the primary and other considerations in the Direction and, where relevant, has assigned weight to particular considerations according to the circumstances of the Applicant.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (para 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a con.
(Emphasis added)
The new Direction made by the Minister has added the emboldened words, which obliges the Tribunal to take account, relevantly to PYYV’s case, that a crime of a sexual nature against a child may be considered ‘very serious,’ regardless of whether the crime included an element of violence and regardless of the sentence imposed. The convictions of the Applicant on 20 February 2023 fulfil the category of being sexual crimes.
The circumstances of the offending were described in the Crown Statement of Facts, which was in the papers before the Tribunal. The complainant will be called ‘TC.’ She was born in 2008 and was aged 12 at the time of the offending. At the time of the offences, TC had an active profile on a dating application called ‘Grindr,’ under a different name, which stated she was aged 18.
Two days before the offending conduct, TC had left her home without informing her family where she was going, and police were notified. One day before the offending conduct PYYV and TC connected by way of the dating application. They commenced a conversation and exchanged naked photographs. They arranged to meet. Early the following day, the Applicant and TC met at a supermarket car park and travelled back to the Applicant’s home. They engaged in oral and unprotected vaginal sexual intercourse. The next day, PYYV drove TC back to where they had met, and he then went to work.
Later that day, police located TC. She was taken to hospital and participated in a vulnerable witness interview. During the interview she disclosed the offending. PYYV was contacted by Tasmania Police. He was by this time working in Melbourne. He said he was asked to attend a local police station when he returned to Tasmania, but not told why. When he returned to Tasmania about four weeks later, he attended the police station. He was interviewed by police but not charged with any offence at that time.
He was asked about the events of an evening on a nominated date. In his interview, PYYV said he had been looking for someone using the Grindr dating application. He told police that although he was heterosexual, he sometimes used this particular dating application to meet men for ‘oral relief.’ He was surprised to find a female profile on it.
PYYV said that he engaged in a conversation with TC through the dating application. After a break in the conversation, the Applicant asked where she had been. He said she told him she had to deal with ‘her little human and her drunk Pakistani husband.’ He said TC suggested they meet to have sex. They arranged a meeting soon after midnight. When PYYV picked her up at the supermarket car park, he said he saw her speaking to another man. He asked TC if the man was her husband, and she said he was.
PYYV admitted to police that he and TC went to his house and had sexual intercourse several times. He admitted when he had vaginal intercourse, he did not use contraception. He said the next day he took her back to the supermarket car park and asked TC if she wanted to catch up again, and said she said ‘yes.’ He dropped her off. He told the police that TC blocked him ‘right away’ on the Grindr application and he did not hear from her again.
In relation to TC’s age, the Crown put to the Court that PYYV said he did not suspect she was underage, because a person must be 18 to have a profile on the dating application. He said he never asked how old she was and the fact that she had a husband and child ‘gave him confidence.’ He said he thought, looking at her, she was 18 or 19. He said that Australian girls are healthy, and they look older, and he finds it hard to judge age. He told the police that he wanted to have sex, and that was all he cared about. He said if he had asked her age, and she had told him, he would not have done it. The Tribunal read back these points from the Crown Statement of Facts to the Applicant at the hearing, and he agreed that was an accurate summary of what he told the police.
In his comments on passing sentence, the Chief Justice said:
[PYYV’s] counsel put to me in mitigation that I should take into account a mistaken belief on his part based on the girl’s appearance, knowledge that Grindr was not available to people under 18, the mention of a husband and child, the presence of the man at the [name of supermarket redacted] at 2am, and the girl’s behaviour. He conceded that [PYYV] was reckless as to her age and should have made proper enquiries.
Section 14B(3)(a) of the Criminal Code provides:
In proceedings for a relevant offence, by an accused, in respect of a person who is under the age of 17 years, a mistaken belief by the accused as to the age of the person is not honest or reasonable if
(a) the accused did not take all reasonable steps to ascertain the age of the person…
His Honour later said:
[PYYV] did not take all reasonable steps to ascertain the age of the girl whom he had sex with. She was under the age of 17 years. Any mistaken belief by him as to her age must therefore be regarded as neither honest nor reasonable. He must be sentenced accordingly. However I will take into account in his favour the fact that, in the circumstances, he had no reason to believe or suspect that she was as young as 12.
Nevertheless, when the victim of a sexual offence is under the age of 13 years, s 11A(1) of the Sentencing Act 1997 requires a sentencing court to treat that fact as an aggravating circumstance. However a number of common aggravating factors are absent in this case. [PYYV] did not and does not have any sexual interest in children or adolescents. This case did not involve grooming, seduction, corruption or any abuse of trust. The girl was sexually experienced and a willing participant in all the sexual activity on the night in question.
There are a number of factors that weigh in favour of some leniency in this case. As I have said, [PYYV] has no significant prior convictions. He cooperated fully with the police and made full admissions. He pleaded guilty at an early stage. He is remorseful. If he goes to prison he will lose his employment and his financial support of his parents will cease. Whether he goes to prison or not, he is likely to be deported. A friend who has known him for six years provided a reference describing his general good character.
I was provided with a thorough report on [PYYV] by a clinical psychologist. He found no evidence of mental illness. He concluded that [PYYV] had “unhelpful sexual beliefs” originating in part from lack of sex education. He concluded that there was a low to average risk of him committing a reportable sex offence in the future. He accepted that he had no sexual attraction to children, sexual deviance or anti-social qualities.
Sexual acts involving children and young people are prohibited in order to protect them from ill-considered decisions. The victim in this case lacked the maturity to make sensible decisions about sexual activity and, for that matter, running away from home. [PYYV] exposed her to a risk of pregnancy. Crimes of this nature usually result in sentences of imprisonment. There is a need to impose a sentence that should deter others from this sort of conduct.
…
I have come to the conclusion…that the only appropriate penalty in this case is a sentence of imprisonment. The mitigating factors, particularly the likelihood of deportation, are significant, and I am taking them into account in fixing the length of the head sentence and making provisions for parole.
The Tribunal finds that PYYV committed a very serious crime in having sexual relations with a child, and the fact that she was under the age of 13 means the law designates his actions as aggravated offending. As the Chief Justice stated, he may not have realized she was aged 12, but he was reckless as to whether she was under the age of 17 years.
Mr Ahmadzai submitted that it was not contested that the conduct of PYYV was serious. He submitted that the offending was ‘situational,’ to borrow a word used by the expert witness Mr Cummins. He said the victim of the offending was not coerced or targeted, but emphasised that the Applicant in no way releases himself from responsibility for what occurred. He said that PYYV has demonstrated honesty in his evidence and, as an example, cited his co-operation with police and providing an image of the victim to the police which she had provided to him through the Grindr application.
There was extensive discussion in oral evidence about the age of TC. The Applicant said that certain things gave him ‘confidence’ that she was aged around 18. These were her profile on the Grindr application which he understood was only meant to be used by adults aged 18 or over, and the fact that he said she told him she was married and had a child. He said that when he picked her up and was driving to his residence, he asked her what she did for work. He said she told him she was ‘a prostitute,’ but that she also had ‘another job.’
The Tribunal cannot impugn the conviction on which a deportation order (as is the effect of the revocation of a visa held by a non-citizen) is based: see Minister for Immigrationand Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairsv Gungor (1982) 63 FLR 441) and Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197. The Chief Justice in his remarks noted the points about the victim saying she was 18 and her appearance, alleged ‘husband’ and the fact of being out in the middle of the night were raised in mitigation, as well as TC’s appearance. However, His Honour also noted that counsel of PYYV conceded that the Applicant was reckless as to her age and should have made proper inquiries.
I am satisfied, having read the relevant extract in the Crown Statement of Facts to the Applicant in the hearing, which he said was an accurate summary, that he told the police that he never asked the victim what age she was and that he ‘wanted to have sex, and that was all he cared about.’ There was no retraction of this from the Applicant, although he focussed extensively on the fact that he assumed she must have been an adult because she was on the Grindr application.
In terms of the photograph of the victim which PYYV sent to police after his interview, there was conflicting commentary in two psychological reports before the Tribunal, from Dr Blake who examined the Applicant before he was charged, convicted and sentenced, and Mr Cummins, who examined him more recently. The Respondent put to me that the best account of what happened in this regard was given by the Applicant in his oral evidence. I agree with that submission. I accept that the Applicant took a video of the victim while she was asleep, but when she was covered by bedclothes. He intended to show this to his friends to prove he had slept with a girl from Grindr. He showed this video to police. Later, he found in the ‘deleted photos’ part on his mobile phone a naked photo that the victim had sent him before they met, through Grindr, and sent this to police in a – perhaps naïve – attempt to illustrate she looked older than her actual age. In doing so, he was potentially committing an offence, but I accept that was not his intention and that he was not making the photo ‘public’ other than by sending it to a detective who had given him her contact email in case he found any further relevant evidence.
Mr Cummins in his report referred to the video taken of TC in bed when she was asleep as being ‘consensual.’ That of course cannot be accepted. The Applicant himself said he has realised as part of what he had learned from the courses he had done in custody that this was an improper act, because a sleeping person cannot give permission for a photograph to be taken or a video recorded. Mr Cummins conceded, under cross-examination, that this act shows evidence of an attitude of sexual entitlement. The Tribunal agrees with that.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. This part of the Direction is not relevant to the Applicant’s criminal record.
The Applicant received a custodial sentence of 10 months, six months of which he must serve before he was entitled to apply for parole. That is perhaps at a more lenient end of the spectrum of sentencing for this type of offending, but the learned Chief Justice pointed out the elements of the offending which were absent in this particular incident. His Honour said that PYYV did not have any sexual interest in children or adolescents, and the incident did not involve grooming, seduction, corruption or any abuse of trust. The Chief Justice especially noted the immigration status of PYYV which influenced the tariff of sentence imposed. PYYV was paroled in October 2023 and was then taken into custody by Australian Border Force officers as a non-citizen without a visa, and into immigration detention in Victoria.
At paragraph 8.1.1.(d), the Direction now requires, within this primary consideration, that decision-makers take into account the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no direct evidence of the impact on TC and her family of the Applicant’s offending. There was no trial because PYYV pleaded guilty and there is no material such as any victim impact statements.
The Tribunal, with respect, believes the Chief Justice’s short summary in his comments passed on sentencing is accurate. PYYV did not set out to groom or seduce the victim and there is no evidence that he has any sexual interest in children or adolescents as a character trait. He believed the victim was older, but the Tribunal also notes the concession on his behalf in Court that he was ‘reckless’ as to her age. The Tribunal must adopt His Honour’s finding that any mistaken belief the Applicant had as to the victim’s age must not be regarded as honest or reasonable. In the Tribunal’s view, PYYV did not undertake sufficient inquiries to assure himself of her age: most tellingly, he admits he did not ask the victim at any stage (even if she might have been likely to proffer an untrue answer).
Paragraph 8.1.1(1)(e) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. The Tribunal puts little weight on the Applicant’s traffic infringements. They are minor and were dealt with by the Magistrates Court by way of fines. They were not raised by either legal representative in submissions in the hearing.
In terms of the group of six offences which triggered the cancellation of PYYV’s visa, they all occurred in a single series of actions. There is no evidence of any frequency of offending by the Applicant, even though this particular incident related to very serious offending. Because the serious offending all occurred in a single event, the Tribunal finds that there is no trend of increasing seriousness.
Paragraph 8.1.1(1)(f) requires the Tribunal to consider the cumulative effect of repeat offending. This part of the Direction is not relevant, because the six sexual offences were counts within a single series of acts in one night. The Tribunal considers that the minor traffic infringements do not materially contribute to a record of repeat offending over time.
Paragraph 8.1.1(1)(g) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. There is no such evidence before the Tribunal.
Paragraph 8.1.1(1)(h) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. There is no such evidence before the Tribunal.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. Should PYYV continue to offend in the same manner has he has, the harm to the community would be sexual violation of children or young people who are, in law, not capable of consenting to such activity.
As mentioned above, before the Tribunal was a report by Dr Grant Blake, clinical psychologist, dated 27 November 2022. It was prepared to be submitted before sentencing by the Supreme Court of Tasmania. Dr Blake interviewed PYYV, who he stated understood the purpose of the examination and the report that would ensue.
In his report, Dr Blake stated that it was his clinical opinion that the Applicant is a ‘low to average risk of sexual reoffending. He could quickly achieve a low-risk categorisation if responsive to intervention’ (GD, p 189).
Later in his report, Dr Blake responded to the following question: Risk of reoffending, Namely, if it is far-fetched and fanciful to say he will reoffend or commit a reportable offence in the future. He wrote:
Disclaimer to the Response
The notion of ‘no risk’ does not exist. No one can be described as presenting ‘no risk’ of sexual offending. “Very low risk” and “low risk” are the lowest risk categories possible within forensic psychological risk assessments. People in these categories present about one quarter to one half of the risk of the average offender. Further, it is the author’s understanding that “far-fetched” and “fanciful” are legal terms with complex precedent argued by legal scholars and learned practitioners of law. As someone with expertise in forensic mental health, rather than legal precedent, it is difficult to use this terminology with absolute confidence. The author understands these terms to be similar in meaning to ‘unreal, ‘not reasonably foreseeable’ and ‘not significant.’ If the author has misunderstood these terms, then the author will gratefully receive corrective feedback to revise the response provided below.
Response
If the Court accepts the author’s understanding of ‘far-fetched’ and ‘fanciful,’ then it is my opinion that [PYYV’s] risk of further offending is not far-fetched and fanciful.
It is my clinical opinion that there is a low to average risk of [PYYV] committing a reportable sex offence in the future. This is not on account of sexual attraction to children, sexual deviance, paraphilia, or being antisocial, but instead due to his sexual conduct and sexual beliefs more generally. The unhelpful sexual beliefs originate from a lack of sex education, early sexualisation with a sex worker and a married woman, and misogynistic beliefs about attractive women as sexual conquests to boast about.
If [PYYV] were to be charged for another sexual offence, it would most likely be a complaint from a consenting sex partner who discovered that [PYYV] [surreptitiously] photographed or videoed their interaction without their consent, and/or shared sexual imagery of the victim without their consent. Given [PYYV’s] indiscriminate use of sex acts to alleviate boredom and loneliness on Grindr, then there is risk that he could find himself in a similar situation with another minor looking to have sex with an adult. Because he has not considered that there are personal factors to address, then he has not given himself the opportunity to address the risk factors that led him to be in this position. On that basis the author cannot consider [PYYV] as presenting a far-fetched or fanciful risk.
The Respondent submitted that, as Mr Cummins’ report was dated after the Applicant had been convicted, and therefore the assessment tools reflected that more current situation, and as the author had made himself available for cross-examination, the Tribunal should prefer Mr Cummins’ assessment of PYYV as a ‘Low risk’ of reoffending, rather than Dr Blake’s earlier assessment of a ‘low to average’ risk. However, Mr O’Shannessy submitted that the Tribunal should not accept that this is a negligible risk, and that, given the nature of the offence, any risk of reoffending is too great.
Consideration of level of risk
PYYV successfully completed a ‘New Directions’ programme, described as a criminogenic programme for sex offenders, while he was in prison. A letter from the Tasmanian Department of Justice described him as ‘motivated and positive’ in his engagement with this course. The Respondent suggested in written submissions that he had not completed the course. The Tribunal rejects that, because before me was a certificate of attainment dated 10 August 2023, that he had completed the course. PYYV also undertook a TAFE computer course in June 2023 and was embarked on a barista course but had not completed it before he was released on parole. There is no evidence that he was other than a well-behaved prisoner. He has also been well-behaved in immigration detention, and the IHMS reports record him as responsive and positive in his engagement in the ‘Smart’ recovery course.
The Tribunal accepts that Mr Cummins’ report of the Static-99R tool is the more accurate one, given it post-dated PYYV’s conviction and sentencing. The Tribunal however finds it difficult to accept Mr Cummins conclusions, in the light of that higher assessment of risk, that can sustain his opinion is that the Applicant is of ‘Low’ risk which in his case means a ‘negligible’ risk. There seems to be a logical inconsistency that his opinion is of a ‘lower’ risk than Dr Blake’s, but the objective Static-99R measure returned a higher risk result.
While there have been some protective factors such as passage of time, and the Applicant now being in an apparently loving relationship with Ms FC, and supported in that by her family, and he has undertaken rehabilitative courses, the plain facts are that PYYV had penetrative sexual intercourse with a 12-year-old child in a circumstance where he was reckless as to ascertaining her age and did not make proper inquiries.
The Tribunal heard extensive evidence of the subterfuge that TC was engaged in by her fake profile on Grindr. The Tribunal accepts that she was holding herself out to be 18 years old, as well as using a fake name. The Tribunal also notes, although it is not strictly relevant to these proceedings, that two other persons have been convicted in separate matters relating to sexual offences with the same victim at around the same time.
However, the Tribunal must focus here on the risk of PYYV reoffending, not on the fact that he believed the victim was 18. The Tribunal notes, without being censorious, that the Applicant freely admits that he used the Grindr dating application for making contact for sexual purposes with strangers, both men and women. The Tribunal also notes that he told police he was not thinking about the age of the victim when he committed the offences, but was only focussed, essentially, on the acts themselves. While the Tribunal finds it very difficult to accept that PYYV did not apprehend that TC was not 18, when confronted with her, naked, in a lit bedroom, I make no finding about that. I accept, as I must, the Court’s conclusions that his belief about her age was neither honest nor reasonable. I also accept the Chief Justice’s conclusion that PYYV had no reason to believe or suspect, in these circumstances, that TC was as young as 12. I accept his evidence that he was ‘shocked’ when he found out. But he was reckless as to the age of the person – a stranger – with whom he was about to have sexual relations.
Having considered the evidence and clinical conclusions in Dr Blake’s and Mr Cummins’ reports, the oral evidence and the submissions of both parties, I accept that the current risk of PYYV reoffending in the same manner as his index offending is ‘Low.’ I do not accept at all that it is a ‘negligible’ risk; that conclusion cannot be reached even with the passage of time and the protective factors, because of the recklessness of the Applicant’s conduct in April 2021. Mr Cummins ‘editorial’ addition to qualify the ‘Low’ risk finding as ‘negligible’ places a gloss on his opinion of risk which is decoupled from his own administration of the assessment tool. That editorial addition is not therefore supportable.
The Tribunal therefore finds that the weight of this primary consideration slightly bifurcates. The seriousness of the offending is at the highest level, because it involves a number of sexual offences involving a child, and a child under the age of 13 which aggravates the offending in law. The risk of the Applicant reoffending is found to be low. But, because of the nature of the offending, any risk (other than a fanciful risk) is unacceptable. The overall weight that the Tribunal assigns to this primary consideration is that it weighs very heavily against revoking the mandatory cancellation of the Applicant’s visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
There is no evidence before the Tribunal that PYYV has committed acts of family violence within the terms of the Direction. Therefore, this primary consideration weighs neutrally in the Tribunal’s assessment.
Primary consideration: The strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely.
Paragraph 8.3(2) states:
Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant first came to Australia in 2014 as the holder of a student visa. He enrolled in and has successfully completed a Bachelor of Business Administration (Hospitality Management) at the University of Tasmania. He has been employed part-time as a cleaner, a chef, a taxi driver and a ride share driver in Tasmania, and both part- and full-time as a truckdriver. He has undertaken voluntary work assisting in the community kitchens of Sikh Temples in different cities in Tasmania.
PYYV also has other links with Australia. In his personal circumstances form submitted to the Department he lists an aunt and uncle and two cousins as residing in Australia. In the papers he submitted to the Tribunal he has also provided statutory declarations from other friends who have known him in the community.
The evidence of five friends before the Tribunal was impressive in terms of their views of the Applicant. They all regarded him highly as a friend and a source of advice. Several witnesses gave concrete examples of positive acts of kindness PYYV had done which affected them. Two witnesses with children spoke of his positive interaction with them and that they had absolutely no concerns about any risk to their children from the Applicant. Although the evidence of some about his offending tended to concentrate on the fact that the victim had misled him, rather than the actual offending he had committed, the Tribunal understands this, in the context that they had made statements and were appearing to attest to his overall general good character.
In his personal circumstances form he also referred to Ms FC, who he described as his de facto partner, and listed her parents, who he listed as ‘father-in-law’ and ‘mother-in-law.’ PYYV wrote, and Ms FC corroborated in a statutory declaration which was before the Tribunal, and in her oral evidence, that they were introduced by a common friend in September 2022 and since October 2022 their relationship strengthened, and they entered into a committed relationship.
The Respondent accepted that the relationship between the Applicant and Ms FC is a positive and loving one, albeit one of relative recency. The Tribunal considers that is a concession properly made. It found the evidence of Ms FC and her mother Mrs EC convincing in terms of the genuineness of the relationship and their willingness to strongly support PYYV. Practical evidence of that is the frequent trips they made to the prison in Hobart when he was incarcerated (which the Tribunal is aware requires a round trip of about six hours), and regular flights to Melbourne since he has been in Victoria in immigration detention.
The Tribunal considers that this consideration weighs in favour of revoking the mandatory cancellation of the visa, and assigns moderate weight.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.4)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
Mr Ahmadzai asked the Applicant about friends who had small children, and he told the Tribunal that two do, and he had interactions with them, including being asked by their parents to take two to school on occasion. However, no minor child has been identified by the Applicant as specifically relevant to this part of the Direction, so the Tribunal finds that this primary consideration weighs neutrally.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(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 of 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.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
The Australian community’s expectation is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ A superseded version of the Direction contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.
The current Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm,’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
The High Court of Australia in Ismail and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 2 stated, at [54], in referring to a previous direction but which is still relevant to the contents of this primary consideration in paragraph 8.5(4) of the current Direction:
Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)‑(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)‑(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90.
In this case, the Tribunal finds that the weight of the deemed expectations of the community would be heavily against revoking the mandatory cancellation of PYYV’s visa. He has committed a series of sexual crimes against a vulnerable child, albeit in a single event. His response to police was included in the Crown summary before the Supreme Court. PYYV was asked directly by the Tribunal about the accuracy of how it was recorded, and he confirmed that he did not think about the age of the victim (believing as she was on the Grindr application, she ‘must be’ 18), and that he would not have done the acts had he realized she was 12. As the Chief Justice said, he was reckless as to whether she was under the age of 17.
His other minor traffic infringements are not significant, and his time in Australia since 2014 has been, on the papers before the Tribunal, generally law-abiding except for the stipulated offences. Even though this was an isolated offending incident, given its seriousness because of the age of the victim, the Tribunal finds that the weight of this deemed expectation would be heavily against revoking the mandatory cancellation of the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, PYYV wrote this in his personal circumstances form in response to the question: Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?
It would be extremely difficult to have to recommence my life in India, after living in Australia and building cultural, emotional, economical ties in this country. I would go in extreme financial hardship as I will not be able to find any job for a long time. My parents are financially dependent on me. If I cannot earn a salary like the one I earn in Australia, my parents are at risk of being on severe financial hardship. My relationship with my partner would also be at risk of dissolving if I have to return to India.

He then went on to suggest that he would face discrimination in his home village because he had been on Grindr (as set out above in the summary of his oral evidence). The Tribunal considers the evidence of the Applicant on this matter somewhat vague. On the one hand he was adamant before the Tribunal that he is heterosexual, but he says that people in his village have ‘heard’ about his Court case and ‘would’ think he is homosexual and discriminate against him on that basis. He provided no firm evidence to support these contentions. He also suggested that he might be subject to threats from the family of his ex-girlfriend in the sense of family ‘honour.’ He told the Tribunal he was more concerned about that than the gay slurs. However, he admitted that his relationship with this ex-girlfriend ceased in 2013, that she had since married, that she lives in a third country and that he had only one peripheral contact with her in the last eleven years, and said he did not want any more.
The Respondent submitted that it was open to the Applicant, if he feels that he can make a claim that Australia’s treaty-based protection obligations may be invoked, to articulate his claims in more detail in terms of applying for a protection visa. The Tribunal agrees with that submission. There was no evidence before me that PYYV plans to do that, but it is open to him so to do. If he does, any claims he might make will be carefully considered in a discrete sense, and, as is made clear in paragraph 9.1.2(2) of the Direction:
…Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
The Tribunal, noting that there is no evidence before it of any security concerns relevant to PYYV, adopts the course foreshadowed in that part of the Direction. I consider that I have properly read and considered the factors that might found a protection claim, as articulated by the Applicant. His legal representatives from both sides questioned him on those claims, as did the Tribunal directly.
I consider that, given it is open to the Applicant to apply for a protection visa and, if he does, he will not be liable for removal from Australia while such an application is being determined (see paragraph 9.1.2(3) of the Direction). that this other consideration weighs neutrally in this assessment.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to India, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in the country of reference.
The Applicant in his personal circumstances form said he did not have any diagnosed medical or psychological problems. However, he later wrote that ‘[t]here would be significant financial hardship, emotional stress, psychological distress and I would be at risk of going into severe depression’ if he were deported.
The Tribunal notes that the Applicant is in good physical health and the IHMS reports, and Mr Cummins’ oral evidence, report no significant mental health issues – noting it is reasonable for him to be anxious about his current situation, the prospects of deportation, and his separation from Ms FC.
The Tribunal is satisfied that the Applicant would not face language barriers if returned to the country of reference; he displayed in the hearing his fluency in Punjabi. The Tribunal notes that he has been able, in Australia, to send funds to his retired parents, and accepts his evidence that he has provided charitable support, through his mother, to a local school. He would not be able to do that if he were repatriated.
The Tribunal finds that this other consideration weighs, very marginally, in favour of revoking the mandatory cancellation of the visa.
Other consideration: Impact on Australian business interests (para 9.3)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
As mentioned above, PYYV has an Australian tertiary qualification, however he does not appear to have worked in the hospitality field after graduating, except part-time as a chef. He has, however, been employed full-time as a cleaner, then as a taxi driver and most recently before his incarceration as a full-time truck driver. He has contributed to the national economy in his employment.
However, in the context of this part of the Direction and how it is couched, the Tribunal does not consider that the Applicant’s past employment history rises to the level that is contemplated in terms of affecting a major project or service. Therefore, the Tribunal finds this consideration weighs neutrally.
CONCLUSION
The Tribunal has found that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs very heavily against revoking the mandatory cancellation of PYYV’s visa. The primary consideration relating to family violence conduct is not relevant and weighs neutrally, as does the primary consideration relating to the best interests of minor children in Australia.
The primary consideration relating to his ties with Australia weighs moderately in favour of the Applicant because he has relatives in Australia and a genuine and mutually supportive, if nascent, relationship with Ms FC.
The primary consideration relating to the expectations of the Australian community weighs heavily against the restoration of the visa, because of the serious nature of the offending.
In respect of the other considerations, the Tribunal has made the following findings. The other consideration relating to the legal consequences of the decision and that relating to the other consideration relating to impact on Australian business interests both weigh neutrally. The other consideration relating to the extent of impediments if removed weighs very marginally in favour of revocation.
The Tribunal is required to consider each of the considerations in the Direction individually, and also cumulatively. Although isolated, the offences PYYV committed are very serious. He has a ‘Low’ risk of reoffending, but because of the nature of the offending and the reckless conduct associated with it, the Tribunal finds it is an unacceptable risk.
Consistent with the exhortation in paragraph 7.2 of the Direction, the heavy weight that has been assigned to the primary consideration relating to the protection of the Australian community (which in the Direction is generally to be given the greatest weight) and the heavy weight assigned to the expectations of the Australian community combine to be determinative in this matter and outweigh the two considerations that weigh, in one case moderately and the other case marginally, in favour of the Applicant.
The conclusion of the Tribunal therefore is that the discretion provided in s 501CA(4)(b)(ii) of the Act is not enlivened. Therefore, there is not ‘another reason’ to revoke the mandatory cancellation of the visa. The consequence of that finding is that the reviewable decision will be affirmed.
DECISION
The Tribunal decides to affirm the decision of 5 April 2024 not to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................................[sgn]..................................
Associate
Dated: 1 July 2024

Dates of hearing: 24, 25, 26 June 2024

Counsel for the Applicant:
Mr Ruslan Ahmadzai

Solicitors for the Applicant: Crystal Migration Legal Services

Counsel for the Respondent: Mr Rogan O'Shannessy

Solicitors for the Respondent: Mills Oakley Lawyers
ANNEXURE
Schedule of Exhibits
G Documents G1 to G44 (paged 1 to 296) Exhibit R1
Respondent’s Tender Bundle Exhibit R2
Indexed:
-R2-2 – “Applicant’s movement history”
-R2-3 – “Applicant’s visa list”
-R2-4 – “Email from TPS Warrants to National Character Cancellation Centre (NCCC)”
-R2-5 – “Email from applicant’s representative to NCCC”
-R2-6 – “Email from NCCC to applicant’s representative”
-R2-7 – “Email from applicant’s representatives to NCCC”
R2-8 – “Tasmania Police – Record of charges”

Applicant’s Tender Bundle Exhibit A1
Indexed:
-1 – “190 Visa Grant Notification”
-2 – “Visa Cancellation Letter”
-3 –Supreme Court of Tasmania – Comments passed on sentencing of Applicant
-4 – “AFP – [PYYV] - March 2023”
-5 – “[PYYV] Statutory Declaration”
-6 – “Interview of the Minor, [TC]”
-7 – “Psychologist Report”
-8 – A Supreme Court of Tasmania judgment in another matter (1)
-9 – A Supreme Court of Tasmania judgment in another matter (2)
-10 – “UBER Payment Receipt”
-11 – “Crown Statement of Facts – [PYYV]”
-12 – “Facts for the Prosecutor”
-13 – “[Ms FC] Statutory Declaration”
-14 – “Character References and Stat Decs of Witnesses”
-15 – “New Direction Program Completion Letter”
-16 – “Sex Offenders Treatment Plan”
-17 – “General Psychologist Progress Reports - General Generated By IHMS”
-18 – “Mental Health Care Plan”
-19 – “Certificate Award - Introduction to Computers”
-20 – “Certificate - Course in Skills for Further Learning and Engagement”
-21 – “First Visa to Australia”
-22 – “Academic Transcripts - Bachelor of Business Administration (Hospitality Management)”
-23 – “Work Reference Letter – Chef”
-24 – “Work Reference - Transport Truck Driver”
-25 – “Witness Statement – [Mrs EC]”
-26 – “[Ms FC] Counselling”
-27 – “Mother's Condition”
-28 – “Articles”

[2024] AATA 2163

1 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Dates of hearing:	24, 25, 26 June 2024
Counsel for the Applicant:	Mr Ruslan Ahmadzai
Solicitors for the Applicant:	Crystal Migration Legal Services
Counsel for the Respondent:	Mr Rogan O'Shannessy
Solicitors for the Respondent:	Mills Oakley Lawyers