QPRD and Minister for Home Affairs (Migration)

[2019] AATA 1098

QPRD and Minister for Home Affairs (Migration) [2019] AATA 1098 (30 May 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1420

Re:QPRD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:30 May 2019

Place:Adelaide

The decision under review is affirmed.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of visa – Class BF Transitional (Permanent) visa – Where Applicant does not pass the character test – sentenced to 12 months’ full time imprisonment or more – whether there is another reason why the mandatory cancellation decision should be revoked – application of Primary and Other Considerations in Direction No 79 – decision under review affirmed

Legislation
Child Sex Offenders Registration Act 2006 (SA)
Migration Act 1958 (Cth)

Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Theodore Tavoularis

30 May 2019

1. QPRD (‘the Applicant’) is a 61 year old citizen of the United Kingdom who first arrived in Australia in 1962, aged four years. The Applicant’s Class BF Transitional (Permanent) visa was mandatorily cancelled on 20 September 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). A delegate of the Minister (‘the Minister’ or ‘the Respondent’), on 26 February 2019, decided not to revoke this mandatory cancellation decision.

2. It is this mandatory cancellation decision (made on 26 February 2019) which comprises the subject matter of the instant application. On 13 March 2019, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the abovementioned non-revocation decision.  This is the application that is now before the Tribunal.

   ISSUES

3. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

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

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

   (b)the Minister is satisfied:

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

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

4. There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]

   there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[2]

   [1] [2018] FCAFC 151.

   [2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

5. There are therefore two issues presently before the Tribunal:

   (a)Whether the Applicant passes the character test; and

   (b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

6. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[3] I will address each of these grounds in turn.

   [3] Ibid.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

7. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

8. There was no apparent resistance from the Applicant at the hearing to a suggestion that he does not pass the character test as he has a substantial criminal record. The Applicant’s position on this point was, to my mind, appropriately taken because, as a result of two sentencing episodes, on 30 April 2009 and 25 July 2018, the Applicant was sentenced to an aggregate custodial period of five years and three months’ imprisonment for very serious child-based offending.[4] Although these sentences contained certain stipulations about release on parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[5]

   [4] Exhibit 5, s 501 G Documents, pages 15-16.

   [5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.

9. Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.

   IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?

10. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”) applies.[6] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    …a decision maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[7]

    [6] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.

    [7] The Direction, sub-paragraph [7(1)(b)].

11. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:

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

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

12. Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.

13. The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

14. I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]

    Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[9]

    [my insertion]

    [8] [2018] FCA 594.

    [9] Ibid at paragraph [23].

15. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:

    (i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (ii)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;

    (iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;

    (iv)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;

    (v)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;

    (vi)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 be allowed to come to or remain permanently in Australia; and

    (vii)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 for determining whether to exercise the discretion.

16. I will now turn to addressing these considerations.

    Primary Consideration A: Protection of the Australian community from criminal or other serious conduct

17. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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.

18. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be readily gleaned from his National Criminal History Check.[10] His offending history is not necessarily substantial and comprises two specific sentencing episodes, each dealing with very similar child-based type of offending. Stated succinctly, the offending history can be summarised thus:

    [10] Exhibit 5, s 501 G Documents, pages 15-16.

Court	Court Date	Offence	Court Result
Supreme Court of South Australia	30 April 2009	Make child amenable to sexual activity - aggravated	Two years, three months’ imprisonment with a non-parole period of 15 months.
District Court of South Australia	25 July 2018	1.    Fail to comply with reporting obligations, Disseminate child exploitation material (basic offence);	1.    Sentenced to 1 year imprisonment
		2.    Possess child exploitation material (aggravated offence), Possess child exploitation material (basic offence).	2.    Sentenced to 2 years’ imprisonment.
Head sentence for offending 1 and 2: 1 year, 10 months’ imprisonment with a non-parole period of 1 year commencing 16/11/17

The Nature and Seriousness of the Applicant’s Conduct to Date

1. A sufficiently fulsome description of the Applicant’s offending has been aptly summarised in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”).[11] In short order, the Applicant was convicted for:

   ·“Making child amenable to sexual activity – aggravated”: This conduct involved the Applicant writing an appallingly worded note to his step-granddaughter at a time when he was entrusted with helping her to get ready for school one morning. The note can only be read in one way. He denied having written the note and maintained the denial until sometime after his imprisonment for the offence pursuant to a conviction following a contested trial before judge and jury;

   ·“Dissemination and possession of child exploitation material and sex offender reporting offences”: For this offending, the Applicant elected not to contest the charges at a criminal trial and instead entered respective pleas of guilty to the suite of charges proffered against him. In addition to failing to comply with reporting obligations under the Child Sex Offenders Registration Act 2006 (SA), the Applicant pleaded guilty to (and was convicted of) respective charges for “possessing child exploitation material” and “possessing child exploitation material – aggravated”. The aggravating aspect being that the children depicted in the material were under 14 years of age.

   [11] Exhibit 4, Respondent’s SFIC, pages 2-4, paragraphs [12]–[19] and pages 5-6, paragraphs [25]-[29].

2. The Applicant seems to adopt an equivocal and irresolute attitude towards the nature of his offending. For example, in his SFIC[12], he says:

   “…

   13. The delegate constantly states during the reasons for refusal to revoke the cancellation of my visa that I am attempting to minimise my offending. The fact is in all my charges, they were in the low scale.

   - My first offence in 2009 was writing a note to my step-granddaughter. While the offence caused emotional pain and sorrow, it was still a note.

   - My last offence of possessing C.E.M. [Child Exploitation Material], the image and video material numbers in the hundreds (pg 151 para 21) and the majority of these are in the level 1 catagory [sic]. My understanding is that in a lot of these types of cases, the material numbers in the thousands. The dissemination charge relates to an email conversation between two role playing adults (pg 18 para 1 and pg 19 para 1). While the subject matter of these emails was disgusting, there was no child hurt, no money made and I, at no time tried to contact children.

   …

   14. I disagree that the stories contained in the emails that were the subject of the dissemination charge should be listed at level 4. I consider that these should have been catagorised [sic] at level 6 (C.E.M. – animated or virtual) as the scenario was imaginary, therefore virtual (pg 18 para 3).

   15. I admit my offending and I think that serving prison time was deserved. But considering the level of offending, I think that the sentence of deportation on top of the prison sentence is manifestly excessive.”[13]

   [my underlining]

   [12] Exhibit 1, Applicant’s SFIC.

   [13] Ibid, pages 3-4, paragraphs [13]-[15].

3. The Respondent points to the “…very serious nature of the Applicant’s offending and the serious harm that could be caused to an individual if the Applicant did re-offend, together with the real risk of his doing so, are factors that combine to present an unacceptable risk to the Australian community.”[14]

   [14] Exhibit 4, Respondent’s SFIC, pages 10-11, paragraph [61].

4. The sentencing judicial officer who dealt with the Applicant in 2009, His Honour Judge Millsteed, told him that the crime he:

   “…committed against [the victim] was very serious. In my view, your conduct was the first step in a process you hoped would make her receptive to the idea of engaging in sexual activity with you.  Your crime is aggravated by [the victim]’s tender age, and the fact that you were effectively her grandfather. Your conduct involved a serious breach of the trust placed in you by [the victim], her parents and, indeed, your wife. A troubling aspect of this case is that you have not shown the slightest bit of contrition or remorse for your conduct.

   ...As I have mentioned, your crime involved a grave breach of trust and is one for which you have shown no remorse…it is difficult to assess your prospects of rehabilitation. On the one hand, you have a previous good record. On the other hand, there is no evidence of any contrition. You do not seem to appreciate the seriousness and enormity of your conduct. In the absence of a willingness to admit wrongdoing, it is difficult to see you responding in a positive way to any appropriate psychological treatment or counselling.”[15]

   [my underlining]

   [15] Exhibit 5, s 501 G documents, page 27-28.

5. The sentencing judicial officer who dealt with the Applicant in 2018 was His Honour Judge Soulio of the District Court of South Australia. His Honour’s views about the nature of the Applicant’s conduct are aptly summarised in the sentencing reasons:

   “…The protection of the Australian community is the fundamental consideration for the purposes of the Sentencing Act. Offences against children are regarded seriously. A primary function of the criminal law is to protect the vulnerable in the community. As you have acknowledged, offences involving the downloading of child sexual material are not victimless crimes. Such offences perpetuate an industry predicated on the abuse of children. The acts depicted in such material involve the exploitation of children incapable of protecting themselves. People who commit such offending create a market for child exploitation material to be produced. The children who are depicted suffered pain, degradation and humiliation during creation of the material. Their suffering is compounded by the fact that such material is available for others to view.”[16]

   [my underlining]

   [16] Ibid, pages 24-25.

6. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

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

   (c)The principle that crimes committed against vulnerable members of the community (such as 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;

   (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

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

   (f)The cumulative effect of repeated offending;

   (g)...

   (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   (i)…

1. Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction stipulates that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously. With reference to his offending that was punished in 2009, there can be little or no argument against the proposition that there was an overtly sexual intention and end-purpose to the Applicant’s conduct in writing the note to his infant step-granddaughter. There is no other way to read a note drafted as follows:

   “[The victim’s name redacted], what I want more than anything else in the world, more than money, more than luxury, is to make love to you like a man and woman. I love you.”

2. Similarly, the offending that was punished in 2018 involved a predominant theme of unlawful sexual offending in the form of possessing a very significant amount of child exploitation material. Despite what the Applicant may now propound about whatever level on the National Child Exploitation Material Category that material may fall under, this offending is captured by this sub-paragraph (a) because it is a sexual crime involving the Applicant collecting, viewing and sharing with others dreadful material concerned with penetrative sexual activity between children and adults, including intercourse. This offending involved the Applicant both disseminating the child exploitation material and composing fantasy-based fictional accounts wherein he posed as a 10 year old girl who was talking in a sexually explicit way about conversations with her grandfather.

3. I find that this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s conduct must be viewed very seriously.

4. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction refers to the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed. It is self-evident that the Applicant’s offending involves children in two primary senses. First, in a direct sense, because he offended against his step-granddaughter who, at the time of the offending, was in his immediate vicinity by virtue of the fact that he was entrusted with helping her to get ready for school one morning, prior to driving her to school. This was a position of trust which the Applicant inexcusably abused.

5. Second, in a much broader sense, the Applicant’s offending drew a much greater number of child victims into its orbit by virtue of his electronic-based activities involving dissemination and possession of child exploitation material. I need not repeat the disconcerting sentencing remarks of Judge Soulio, quoted above, about the impact of that offending on innocent child victims. Perhaps the more disquieting element of this dimension of the Applicant’s offending involves his ongoing participation in a community – albeit an electronic community – that involves itself in propagating and perpetuating such heinous and abhorrent conduct against innocent child victims.

6. There can be no other finding other than that the totality of this Applicant’s child-based offending strongly militates in favour of a finding that his offending conduct in this country has been of a very serious nature.

7. Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community are to be regarded as serious. To an extent, this sub-paragraph (c) dovetails into my findings about the immediately preceding sub-paragraph (b). I have no compunction in finding that the child against whom the Applicant directly offended, and the potentially much broader scope of children sought to be captured into the orbit of the Applicant’s participation in an electronic community promoting and propagating such conduct, comprise “vulnerable members of the community” as contemplated by this sub-paragraph (c). To find otherwise would be an affront to children everywhere. This sub-paragraph (c) obviously and undeniably endorses a finding that the Applicant’s offending has been committed against vulnerable members of the community and, accordingly, is thereby very serious.

8. Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. To an extent, this sub-paragraph (d) is rendered nugatory as a result of the applicability of sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. This is because sub-paragraph (b) (for present purposes) compels a finding that the Applicant’s offending must be viewed “very seriously, regardless of the sentence imposed.”

9. Be that as it may, it must be taken into account that the Applicant received respective custodial terms for two years and three months in 2009 and three years in 2018. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.

10. Prior to being sentenced in 2009, the Applicant maintained a denial of ever having written the note to the victim and incorporated that denial in his criminal defence strategy that ultimately came before judge and jury. The denial was not accepted by the jury and he was duly convicted and incarcerated. It was only after his incarceration that the Applicant acknowledged having written the note. His maintained denial resulted in his wife, daughter and the child victim being confronted with the trauma of having to give evidence at a criminal trial. The denial was maintained in circumstances where: (1) the trial judge regarded the child victim as being “an impressive witness”, and (2) the evidence of the child victim about receiving the note from the Applicant was strongly corroborated by a handwriting expert confirming the Applicant was the author of the note. In sentencing him, Judge Millsteed rejected mitigating factors regarding suspension of the sentence and said this:

    “…Your counsel, Mr White, urged me to suspend your sentence on account of the mitigating factors in your case. In my view, the gravity of your conduct outweighs those factors personal to you. I find that there is no good reason to suspend the sentence. Accordingly, it will not be suspended.  It begins from today.”[17]

    [my underlining]

    [17] Ibid, page 28.

11. In terms of the sentence he received for his offending in 2018, Judge Soulio noted:

    “...

    In respect of the counts of possessing of child exploitation material and aggravated possessing child exploitation material, I would have imposed a single penalty of imprisonment for two years.

    The sentences are to be served cumulatively, making a total starting point of three years’ imprisonment. You are entitled to a sentencing discount of up to 40 percent. I allow a discount of that order and make the sentence one of imprisonment of one year and 10 months.

    …I fix a non-parole period of one year.

    Having regard to the previous offending and the seriousness of the current offending, I do not consider that suspension or a home detention order are appropriate.”[18]

    [my underlining]

    [18] Ibid, page 25.

12. I am thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts in 2009 and 2018 for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.

13. Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. At first blush, upon a reading of his criminal history, one may form a view that his offending is neither frequent per se and that perhaps it may not be of increasing seriousness. I would disagree with both such contentions.

14. The basis of my disagreement is to be found in the comments of Judge Soulio who, upon sentencing the Applicant in 2018, noted:

    “Counsel for the Director of Public Prosecutions made the submission, however, that the offending involving downloading of sexually explicit child exploitation material occurred subsequent to you attending Owenia House in relation to treatment for such conduct, and that your offending was part of an ongoing course of conduct apparently committed between December 2015 and December 2017.”[19]

    [my underlining]

    [19] Ibid, page 21.

15. In terms of the sheer volume of material founding the 2018 offending, His Honour noted:

    “The material included, in respect of the basic charge, 110 images and six video files in level 1[20]; seven images and 16 video files in level 2; one image in level 3; six images and 1 video files in level 4; seven images and four video files in level 5; and one video file in level 6; a total of 131 images and 39 video files.

    In respect of the aggravated offence, police located 221 images and six video files in level 1; 20 images and 10 video files in level 2; six video files in level 3; 52 images and 71 video files in level 4; and one image and two video files in level 5; a total of 303 images and 95 video files.”[21]

    [20] In the paragraph immediately preceding the paragraph quoted in these reasons, His Honour helpfully summarises the six categories of categorisation of such child exploitation material in accordance with the National Child Exploitation Material Category. That paragraph is at Exhibit 5, s501 G Documents, page 18, commencing with the words “Police also analysed and seized equipment to which I have referred and discovered child exploitation material stored on those items…”

    [21] Ibid, page 18.

16. Thus while the Applicant’s offending history may not, in and of itself, indicate a frequency of offending, I am nevertheless satisfied that this Applicant’s conduct is frequent, in circumstances where he continues to offend while participating behind the veneer of receiving rehabilitative treatment at Owenia House and, as observed by His Honour Judge Soulio, his offending was part of “…an ongoing course of conduct apparently committed between December 2015 and December 2017.” Likewise, I am satisfied that the Applicant’s conduct is of increasing seriousness because his offending for which he was punished in 2009 involved a serious and inexcusable transgression against a singular victim. The offending for which he was punished in 2018 involves actual and potential victims of an infinitely broader scope. As well, this latter conduct involves the Applicant participating in a community of likeminded offenders – albeit an electronic or virtual community.

17. The application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction results in an inevitable finding that both the frequency of the Applicant’s offending and its increasing severity is such as to render his offending as very serious.

18. Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant’s offending commences with a focus on just one victim. It grows into participation in a community of similarly motivated offenders.

19. His written submissions to this Tribunal demonstrate both a lack of remorse as well as a lack of any measurable appreciation of and insight to the serious and potentially catastrophic nature of his offending. His written submissions talk of “I admit my offending and I think that serving prison time was deserved…” but at the same time, he considers – after findings made by His Honour Judge Soulio upon sentencing him , pursuant to his own pleas of guilty – that his offences “…were in the low scale…” and, in relation to his offending against his step-granddaughter, “While the offence caused emotional pain and sorrow, it was still a note.” With reference to his possession of the child exploitation material, he thinks “…the majority of these are in the level 1 catagory [sic].”

20. Apart from the inaccuracy of the Applicant’s comments regarding Judge Soulio’s findings about the categorisation of the child exploitation material found to be in possession of the Applicant, the cumulative effect of the Applicant’s offending demonstrates that while he appears content to accept “…that serving prison time was deserved” for his offending, he does not necessarily appreciate that the seriousness of the totality of his conduct is such as to now place his visa status in this country in extreme jeopardy.

21. Another cumulative effect of the Applicant’s offending is such as to culminate in him being removed from the mainstream Australian community either as a result of being in criminal custody or immigration detention for a cumulative period of almost three years (actually, 33-34 months). It is also arguable that another cumulative effect of the Applicant’s offending is that it demonstrates that he is not respectful of the lawful authority governing the Australian community to which he seeks to be readmitted. This is especially evident from his offending while apparently being in receipt of rehabilitative treatment at Owenia House.

22. The application of this sub-paragraph (f) can only lead to a finding that the cumulative effect of the Applicant’s offending and its increasing seriousness is clearly indicative of its very serious nature.

23. Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor is clearly not favourable to the Applicant. He was indeed warned about the adverse consequences to his migration status arising from his offending.

24. By letter dated 11 May 2010, the Minister notified the Applicant that the visa authorising his continued stay in Australia could be liable for cancellation on character grounds. He was given the benefit of the doubt on that occasion, while at the same time, the Minister made his position abundantly clear :

    “Registered Mail

    …

    Dear [the Applicant]

    NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958

    On 28 August 2009 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

    After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds at this time. Your current Class BF Transitional (permanent) visa will continue to provide you with permission to remain in and re-enter Australia. However, the Delegate decided that you are to be given the following formal warning.

    Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

    ...

    If you have any questions about this Notice, you can write to me or telephone me on [number redacted].

    Please acknowledge receipt of this letter by signing the attached page in the enclosed envelope…

    Yours sincerely

    …

    11 May 2010”[22]

    [22] Ibid, pages 99-100.

25. This letter was forwarded by registered post to the Applicant. He has subsequently signed the receipt confirmation document and that signed confirmation appears in the material.[23] There can be no question the Applicant did not receive this letter. There is no contention that he did not understand its contents.

    [23] Ibid, page 102. Note: See also page 103 of Exhibit 5, s 501 G Documents relating to this signed acknowledgement that was signed by the Applicant on 22 November 2018.

26. Despite receiving this letter, the Applicant continued to offend, culminating in the offences that came before the South Australian District Court (per His Honour Judge Soulio) in 2018. The content and terms of the letter of warning issued by the Minister to the Applicant in May 2010 could not have been clearer. His blatant disregard of this warning is palpable and beyond excuse. The reality that the Applicant has ignored a duly issued warning by the Minister about the effect of any continued offending on his migration status in this country is confirmatory of the very serious nature of his subsequent conduct.

27. He was given an opportunity – in the form of a written warning - to modify and ameliorate his conduct. He has failed to do so and, indeed, re-offended after receiving that warning.   This refusal to heed the Minister’s warning is a factor that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, attaches a label of “very serious” to the nature of the Applicant’s offending.

28. Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

29. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:

    (i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (ii)Paragraph 13.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

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

30. Any consideration of a non-citizen’s risk to the Australian community were the non-citizen to commit further offences or engage in other serious conduct is informed by 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 risk that it may be repeated may be unacceptable.

31. Both of the sentencing judicial officers who dealt with the Applicant in 2009 and 2018 were clear and unequivocal in their findings as to the seriousness of his conduct be it in the realm of the direct approach to his granddaughter or in terms of his being in possession of a significant amount of child exploitation material. The Respondent contends that were he to reoffend, the nature of the resulting harm would indeed be serious. The Respondent’s further contention is that taking into account the available information about the risk of him reoffending, despite the evidence of apparent rehabilitation, there is a real risk of repetition of the offending conduct. I agree with both of these contentions.

32. The Applicant was afforded an opportunity to participate in a 12 week program of rehabilitation at Owenia House in 2010. This program spanned the latter period of time he was in prison and for a period following his release. Whatever beneficial and ameliorative things the Applicant may have experienced from that program must have been transitory. This is because about five years later, the Applicant again yielded to his inherent pre-disposition towards child-based offending.

33. This offending involved him:

    ·Being found in possession of a significant quantity of child exploitation material that was methodically collected and acquired and then electronically stored on his own device(s);

    ·Downloading that material, some of which was aggravated;

    ·Creating his own fictional electronic textual narrative about a 10 year old girl, bearing the same name as his step-granddaughter victim, having a sexual interaction with her grandfather.

1. This fantasy-based narrative eerily parallels his offending involving his step-granddaughter in 2007 for which he was sentenced to a head custodial term of two years and three months in 2009.

2. A holistic view of both (1) the Applicant’s conduct dealt with by both sentencing episodes and (2) the Applicant continuing to reoffend in a similar way despite the various supportive and guidance-based measures aimed at lowering his risk of reoffending leads to no other conclusion than that this Applicant represents a significant risk of offending. If that were to occur, the nature of the resulting harm would be both very serious with resulting irreparable and, quite conceivably, catastrophic harm to a victim(s).

3. He has had, in 2010, the benefit of a 12 week program of rehabilitation via Owenia House. He has received a benign warning, in 2010, from the Minister making clear that any repetition of similar offending would have very serious consequences for his visa status in this county. He has had the opportunity to experience the deterrent effect of the imposition of a head custodial term of two years and three months in 2009.[24] He has had the benefit of being placed on a Child Sex Offenders program that contained specific disclosure requirements designed to provide effective monitoring of his activities and to minimise his risk of reoffending. None of these measures were effective in lowering or removing his risk of reoffending.

   [24] With a non-parole period of 15 months.

4. The Applicant’s conduct with regard to the conditions imposed by the abovementioned Child Sex Offenders program is particularly concerning. He had failed to adhere to those conditions and had breached and circumvented them in two specific ways. First, he created his own email account and ensured it remained known only to him. This was done for the specific purpose of accessing a website(s) that contained or provided access to photographs of under-aged girls. The Applicant acknowledges he deliberately did not tell anyone in lawful authority about the secret email address because he wanted to conceal his activity.

5. Second, the intended end result of his clandestine activity saw him accessing and being in receipt of significant quantities of child exploitation material on his electronic equipment that only came to light following execution of a search warrant at both his home and workplace in November 2017. Not only was this conduct squarely in breach of his reporting and disclosure obligations under the relevant Child Sex Offenders program, it flew in the face of every other deterrent effort and guidance/support-based mechanism made available to him designed to prevent him reoffending.

6. The inevitable and unavoidable conclusion is that despite the Applicant’s oral and written protestations of being desirous to disengage from his predilections causing him to (1) access and download pictures and videos of under aged girls and (2) fantasise about such material, the totality of the historical footprint of his conduct fails to inspire any measure of confidence that those protestations are either genuinely felt and/or genuinely intended.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct

7. Ms Susan Heinrich is a clinical psychologist who, in May 2018, at the request of the Applicant’s legal representatives in the sentencing hearing before His Honour Judge Soulio on 25 July 2018, prepared a report comprising a psychological assessment of the Applicant. The intention of the report was to draw attention to factors of mitigation to be taken into account by the sentencing judge. As I understood the totality of the material, the Applicant now seeks to attach at least some measure of reliance to Ms Heinrich’s report.

8. To my mind, for this Tribunal to attach any significant measure of reliance on Ms Heinrich’s report is a step that is fraught with danger. This is so for several reasons. First, it is not apparent from Ms Heinrich’s report that she was ever made aware about the abovementioned warning provided by the Minister to the Applicant in May 2010. As well, it does not appear that she was made aware that material generated by the Applicant via his secret email account contained details of his fantasies about a 10 year old girl bearing the same name as his step-granddaughter victim from 2007 and that those fantasies involved a narrative about sexual activities between that 10 year old and her grandfather. In particular, it does not appear that Ms Heinrich was made aware that these latter fantasies – specifically before the sentencing court in 2018 for which her report was prepared – were strikingly similar to the factual circumstances of his offending against his step-granddaughter in 2007.

9. The conclusion reached by Ms Heinrich for the medico-legal purposes of her report was that she accepted the Applicant had expressed a genuine desire to move away from his predilection for paedophilic behaviour – both actual and fantasised – involving under aged girls and that, in her judgement, he was thus a good candidate for referral to and participation in further rehabilitative treatment. On this basis, Ms Heinrich thought that the sentencing judge in 2018 could be reasonably convinced that the Applicant’s prospects of re-offending were lower than they otherwise would have been.

10. I agree with the Respondent’s contention and characterisation of Ms Heinrich’s report: she has reached a conclusion that is based on limited information. Ms Heinrich did not have the Applicant’s complete historical offending details before her when she expressed an opinion about his risk of recidivism. As also noted by the Respondent, the findings of Ms Heinrich are not consistent with the oral and written evidence provided by the Applicant at the hearing.  It is worth repeating that at paragraph [13] of his written submissions[25], for example, he expresses the view that his offending involved “charges… in the low scale…” of severity.

    [25] Exhibit 1, Applicant’s SFIC.

11. Likewise, he then sought to propound that his offending in 2018 was not really serious because, according to him, serious charges in this realm of offending required an offender to be found in possession of ‘thousands’ of child-based images and videos and that his offending was not serious because he was found to be in possession of not so large a volume of offending material. This is an unmeritorious contention because, leaving aside the nature of the six categories of exploitation material referred to by the learned sentencing judge, it is worth repeating that  in terms of sheer volume of material, the Applicant was found in possession of:

    “…in respect of the basic charge, 110 images and six video files in level 1; seven images and 16 video files in level 2; one image in level 3; six images and one video files [sic] in level 4, seven images and four video files in level 5 and one video file in level 6; a total of 131 images and 39 video files.

    In respect of the aggravated offence police located 221 images and six video files in level 1; 20 images and 10 video files in level 2; six video files in level 3; 52 images and 71 video files in level 4; and one image and two video files in level 5; a total of 303 images and 95 video files.”[26]

    [26] Exhibit 5, s 501 G-Documents, Sentencing remarks of His Honour Judge Soulio, page 18.

12. The totality of material of which the Applicant was found to be in possession comprised 170 items (image and video files) for the non-aggravated offence and 398 items (images and video files) for the aggravated offence. It is therefore absurd for the Applicant to suggest that his being found to be in possession of 568 child exploitative image and video files is somehow in the ‘…low scale…’ of offending.

13. In his written submissions and at the hearing, the Applicant continued to propound the unmeritorious contention that ‘…while the offence [in 2007 involving the step-granddaughter victim] caused emotional pain and sorrow, it was still a note.’ This evidence demonstrates a significant lack of insight into the nature and severity of his offending against the step-granddaughter victim. It also comprises an unacceptable attempt to minimise the nature of his offending, especially in circumstances where he accepted in cross-examination that he wrote the note to the step-granddaughter with a specific intention of making it clear to her that he wanted to have sexual relations with her and that he intended the note to cause her to reciprocate his intention.

14. The further difficulty with this evidence is that it casts into grave doubt the Applicant’s contention that he simply wants to come out of custody and submit himself to yet another course of rehabilitation. While this intention may sound impressive, it has no historical support and, perhaps more concerningly, it goes a long way in confirming that the Applicant is yet to comprehend the enormity of his offending against the step-granddaughter victim in 2007. I am not convinced that the Applicant has come to terms with his offending or that he has truly understood its nature and seriousness. As a result, I am not convinced that he is ready to benefit from any further program of rehabilitation upon his release from custody/detention. The Tribunal cannot be convinced that he is anywhere near able to overcome his urgings for and predilection towards paedophilic conduct. In my view, these are very significant factors in my finding that he continues to represent a convincing likelihood of reoffending.

15. Having regard to the totality of the material, my finding is that there is a genuine and appreciable risk of this Applicant reoffending. Were he to re-offend, that offending has the clear capacity to cause very serious physical and/or psychological harm, indeed catastrophic and life-long irreparable harm, to a child-victim of the Australian community. Such a risk, in my view, is not acceptable to the broader Australian community.

16. I am mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:

    “The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[27]

    [27] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.

    Conclusion: Primary Consideration A

17. I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.

18. Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.

    Primary Consideration B: The best interests of minor children in Australia

19. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

20. The material discloses one minor child potentially affected by the cancellation decision. That child is the Applicant’s four year old granddaughter, who is the child of the Applicant’s biological daughter. The Respondent readily accepts that, prior to his imprisonment in November 2017, the Applicant did have contact with his granddaughter, his biological daughter and his ex-wife on a regular basis. The Respondent also accepts that it would be in the best interests of the grandchild for the Applicant’s visa to be reinstated.[28]

    [28] Transcript, page 5, lines 39-47.

21. As against that, it should be borne in mind that were the Applicant to be released back into the Australian community, he will be subject to the conditions arising from his placement on the South Australian Sex Offenders Register. Those conditions will most likely stipulate restrictions on his capacity to interact with his granddaughter and, indeed, other infant children.

22. Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of infant children potentially affected by a decision like this. Those factors relevantly comprise for present purposes:

    (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.

23. Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children. The Applicant’s role in the life of his granddaughter in Australia has been significantly limited as a result of his current term in criminal custody. Be that as it may, there has been a discernible level of contact between the Applicant and the granddaughter such that a slight level of weight can be allocated to this sub-paragraph (a).

24. Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date. The Applicant has not played any significant parental role in the life of his granddaughter. As mentioned earlier, the time he may in future spend with her in Australia, were his visa status to be restored to him, would necessarily be constrained by stipulations as to necessary supervision by third parties such as his biological daughter and/or his ex-wife. Accordingly, only a slight amount of weight, if any, can be allocated to this sub-paragraph (b).

25. Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his granddaughter in Australia. There is no evidence that any of the Applicant’s conduct has manifested in any measurable adverse impact on the welfare of his granddaughter. Obviously, a permanent separation between the Applicant and his granddaughter would not be beneficial to her. The only reasonable finding is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his granddaughter.

26. Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the granddaughter from the Applicant would have on her, taking into account the Applicant’s ability to maintain contact in other ways. There are two aspects as to how this factor can be discussed. First, the Applicant’s biological daughter (the mother of the subject granddaughter) expresses a view that “…I also know his deportation will affect many other family members and friends who show the same concerns about his welfare.”[29] Put at its highest, the daughter’s comments about “…other family members…” can realistically be taken to refer to the infant granddaughter. To that extent, any separation between the Applicant and his granddaughter could be said to negatively impact on her.

    [29] Exhibit 1, Applicant’s SFIC, Attachment 4 thereto, Statement of the Applicant’s daughter.

27. Second, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his Australian-based infant granddaughter by SMS and/or social media platforms from the United Kingdom or elsewhere. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the granddaughter via Skype and other digital platforms.

28. In these circumstances, this sub-paragraph (d) is of slight weight in favour of the Applicant in assessing whether restoration of his migration status is in the best interests of his granddaughter in Australia.

29. Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. It is clear from the daughter’s written statement that she is “…a single mother…” and the sole and primary caregiver for the subject granddaughter. It would not be an unreasonable stretch to presume that she would be assisted in this regard by the Applicant’s former wife. There seems no contrary suggestion by the Applicant in any of the material (or in his oral evidence at the hearing) to the fact that his biological daughter is the primary carer of the subject granddaughter. Having regard to the factual circumstances of this case, this sub-paragraph (e) is of slight weight in favour of the Applicant in assessing whether restoration of his migration status is in the best interests of his granddaughter in Australia.

30. Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the child about their separation from the Applicant, having regard to their age and maturity. As already alluded to, there is no independent or expert evidence before the Tribunal that the granddaughter has been exhibiting behaviours indicative of adverse views she may have regarding how the physical removal of her grandfather from her life will negatively impact upon her. It is thus difficult to allocate any appreciable measure of weight to this sub-paragraph (f) in the absence of any such known views and where there is no substantive evidence to suggest that the prolonged, physical absence of her grandfather from her life thus far or in future will have any adverse impact on her.

1. Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the grandchild in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.

2. Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. There is no evidence that any of the Applicant’s offending occurred in front of or is otherwise within the ambit of knowledge of the granddaughter. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by the granddaughter as a result of the Applicant’s offending conduct (as opposed to his prolonged physical absence from her life) – is of no weight and is not determinative of any finding about this Primary Consideration B.

   Conclusion: Primary Consideration B

3. Having regard to:

   (a)the unconvincing evidence of the Applicant, his biological daughter and his former wife, with its significant absence of any convincing detail about any negative impact of the Applicant’s removal on the subject granddaughter other than to make vague references to knowing “…how this kind of thing affects families and children…”[30], that “…his deportation will affect many other family members and friends…”[31]and that the Applicant “…had a strong bond [with the subject granddaughter] before I was incarcerated and for a long time she was telling everyone “I have lost my granddad’”.[32]

   (b)the reality that the Applicant’s time with the subject granddaughter will be subject to conditions and limitations arising from his placement on the South Australian Sex Offenders Register;

   (c)the absence of any convincing or substantive evidence about the parental role the Applicant has played and may continue to play in the life of his granddaughter were he to be returned to her life (in a physical sense);

   (d)the slight level of weight I have attributed to factors (a), (b), (c), (d) and (e) of paragraph 13.2(4) of the Direction;

   - I am of the view that the best interests of the Applicant’s granddaughter in Australia does weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a slight level and does not, in any way, outweigh the heavy weight I have attributed to Primary Consideration A.

   [30] Exhibit 1, Applicant’s SFIC, attachment 3 thereto, Statement of the Applicant’s former wife.

   [31] Ibid, Attachment 4 thereto, Statement of the Applicant’s daughter.

   [32] Exhibit 5, s 501 G Documents, Applicant’s Appendix 1 to his Personal Circumstances Form dated 17 October 2018, page 58.

   Primary Consideration C – The Expectations of the Australian Community

4. I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[33] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[34] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.

   [33] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.

   [34] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).

5. For the purposes of considering the instant application, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[35] notwithstanding the contributions of the Applicant (if any) to the Australian community, the amount of time he has lived in Australia,[36] and the impact of his removal upon his immediate family in Australia.[37] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should (or should not) retain the privilege of remaining in Australia must be broken down into a series of components so that it can be properly understood and assessed.

   [35] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).

   [36] Ibid, paragraph 6.3(5).

   [37] Ibid, paragraph 6.3(7).

6. The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:

   ·he arrived in Australia in September 1962 aged four years old;

   ·his Nationally Coordinated Criminal History discloses an offending history running from 2007 to 2018 – a period of approximately 11 years;

   ·his offending across this 11 year period has resulted in the imposition of the following custodial terms:

   oApril 2009 – for the offence of “making a child amenable to sexual activity – aggravated” a head custodial term of 2 years and 3 months (with a non-parole period of 15 months);

   oJuly 2018 – for the offences of “Fail to comply with reporting obligations, Disseminate child exploitation material (basic offence); 2 Possess child exploitation material (aggravated offence), Possess child exploitation material (basic offence)” a cumulative custodial term of 3 years’ imprisonment (with a “Head custodial sentence of 1 year and 10 months, with a non-parole period of 1 year”);

   ·his protestations about being at a low risk of re-offending despite:

   ohim having, in 2010, the benefit of a 12 week program of rehabilitation via Owenia House, yet subsequently re-offending and in a very serious way;

   ohim receiving a benign warning, in 2010, from the Minister noting his offending punished in 2009 and warning that any future offending could seriously compromise his visa status in this country, yet subsequently re-offending and in a very serious way;

   ohim having the opportunity of experiencing a deterrent effect intended by the custodial term he received in 2009 for his very serious offending against his step-granddaughter in 2007, yet subsequently re-offending and in a very serious way;

   ohim having the benefit of being placed on a Child Sex Offenders program stipulating specific disclosure requirements to monitor his activities, yet subsequently contriving to flagrantly breach those disclosure requirements and to compile a very significant amount of child exploitation material and to create, publish and participate in a paedophilic narrative involving near-identical conduct that saw him convicted and incarcerated in 2009;

   ohis unsustainable respective contentions that:

   ·         while his very serious offending in 2007  against the step-granddaughter “caused emotional pain and sorrow, it was still a note” and thus not overly serious;

   ·his offending that was punished in 2018 was “…in the low scale” because he was found to be in possession of a total of “only” 568 images and video files of child exploitation material, whereas, in his view, serious offending in this realm requires the offender to be found in possession of “thousands” of images and/or video files of such material;

   ·my finding that his offending in this country can only be described as very serious;

   ·my finding that the Applicant is a long way from convincing the Tribunal that he has comprehended the enormity of his offending either against the step-granddaughter victim in 2007 or for the conduct which came before the sentencing court in 2018;

   ·my finding that this Tribunal cannot be convinced that he is anywhere near able to overcome his urgings for and predilection towards paedophilic conduct;

   ·my finding that there is a genuine and appreciable risk of him re-offending and, where he to re-offend, it would result in very serious physical and/or psychological harm, indeed catastrophic and life-ling irreparable harm to a victim of the Australian community;

   ·the cumulative custodial terms of imprisonment imposed in April 2009 and July 2018 totalling 5 years and 3 months; and

   ·the unreliable nature of the findings made by the clinical psychologist, Ms Susan Heinrich in her report dating from May 2018 regarding the Applicant’s risk of recidivism, due to her:

   onot being made aware about the abovementioned written warning from the Minister to the Applicant in May 2010 about the adverse impact of future offending on his visa status in this country; and

   onot being made aware that the paedophilic material generated by the Applicant via his secret email account (that came before the sentencing court in mid-2018) contained details of his fantasies about a 10 year old girl bearing the same name as his step-granddaughter victim from 2007, and that those fantasies paralleled his 2007 offending because they involved a narrative about sexual activities between that 10 year old and her grandfather.

7. I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.

8. As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[38]

   [38] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].

9. Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[39] The learned Deputy President thought this paragraph leads a decision maker to:

   102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…

   …

   103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.

   [my underlining]

   [39] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].

10. The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[40]

    In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.

    [my underlining]

    [40] [2017] FCA 1466 at [76]-[77].

11. The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:

    …[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.

    [my underlining]

12. In Afu v Minister for Home Affairs,[41] Justice Bromwich said:

    The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.

    [my underlining]

    [41] [2018] FCA 1311 at [85].

13. The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant, with his personal circumstances and history of offending in this country, has been adequately dealt with by the imposition of custodial terms for his very serious offending to date, such that he should now be allowed to remain in this country.

14. I cannot come to that conclusion in light of my findings as to:

    (i)The very serious nature of his offending to date;

    (ii)His demonstrated lack of insight into the nature of his offending involving, as it does, a lack of respect for the innocent victim(s) of his offending and a similar lack of respect for the lawful authority governing the protection of such vulnerable members of the Australian community;

    (iii)My finding that (1) such lack of insight about the severity of what he has done; (2) the abject failure of rehabilitative efforts thus far; plus (3) his blatant failure to comply with his reporting obligations to lawful authority designed to monitor his conduct - all point to a convincing likelihood that this Applicant will engage in further, very serious conduct if returned to the Australian community;

    (iv)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;

    (v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.

15. I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.

16. At the hearing, the Applicant spoke of wanting to return to the community to and to immediately engage, again, with the rehabilitative process with an end purpose of re-defining his life and becoming a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[42]

    [42] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.

17. In his written evidence, the Applicant speaks of wanting to “…serve the community in a volunteer role, possibly for the aged, and also fundraising for childrens [sic] charities to someday atone for my behaviour.” [43]

    [43] Exhibit 5, s 501 G Documents, page 59.

18. The Applicant has not been dilatory during his time in this country. As he notes:

    “4. After being schooled totally in Australia, I commenced work in 1974, at age 16, for the P.M.G.[44], a government department. I have been in work for most of the period from 1974 to 2017 with various employers in two industries. I have always paid taxes and mostly contributed to superannuation.”[45]

    [44] A precursor to Telstra.

    [45] Exhibit 1, Applicant’s SFIC, pages 1-2, paragraph [4]..

19. Further, it can be fairly argued that any likelihood of him re-offending was, for the first time, tested in the community during the period of approximately 2010 until late 2017. This test resulted in abject failure and yet further very serious offending for which he was punished in May 2018. That initial failure affords little or no measure of confidence that any future similar testing of the Applicant’s propensity to offend would yield any different outcome.

    Conclusion: Primary Consideration C

20. Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.

    Other Considerations

21. There are five “Other Considerations” disclosed in the Direction:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

22. I will address each of these considerations, and their respective weights, in turn.

    (a) Non-Refoulement Obligations

23. The non-refoulement obligations that would normally form part of the Tribunal’s consideration of a matter such as this do not apply here. There are no non-refoulement issues arising from the Applicant’s potential return to the United Kingdom. Accordingly, this Other Consideration (a) is not relevant to determination of this application.

    (b) Strength, nature and duration of ties

24. The Respondent acknowledges that the Applicant has been in Australia since the age of four and that he has resided here for well over 50 years. There is a further acknowledgement from the Respondent that the Applicant’s estranged wife, with whom he remains on good terms, his two biological adult children and his abovementioned granddaughter would experience some measure of distress and difficulty were he removed from Australia.[46]

    [46] Transcript, page 7, lines 39-45.

25. There are further respective acknowledgements from the Respondent that:

    ·The Applicant’s estranged wife does suffer from a number of health conditions and that prior to his incarceration the Applicant did provide certain practical assistance to her and that she would be denied such assistance were he to be removed;

    ·The Applicant’s daughter is a single mother who will find it financially difficult to afford travel to visit her father in the United Kingdom; and

    ·The Applicant’s daughter will be the person most adversely impact by the Applicant’s removal.[47]

    [47] Exhibit 4, Respondent’s SFIC, page 12, paragraphs [72]-[74].

26. I accept and endorse the Respondent’s abovementioned acknowledgements for the purposes of this decision. As against that, it should be noted that:

    ·The Applicant’s estranged wife does have a number of children in Australia and it can be reasonably expected that she will turn to them for assistance in lieu of the Applicant;

    ·The Applicant’s son is studying for a professional vocation which, in all likelihood, will afford him the financial capacity to travel to the United Kingdom to see his father.[48]

    [48] Ibid.

1. The Applicant has a number of other immediate family members in Australia. In terms of immediate family, the Applicant’s three sisters and one brother all reside in Australia. In his Personal Circumstances Form, under the heading “Please state how many relatives you have in Australia or overseas” the Applicant lists three aunts/uncles and eight nieces and nephews, who all reside in Australia.[49]

   [49] Exhibit 5, s 501 G Documents, page 97.

2. It is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), favours the Applicant. Any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to paragraph 14.2(1)(a)(ii) of the Direction) that any time he may be said to have spent contributing positively to the Australian community is significantly outweighed by his very serious criminal conduct during the corresponding period.

3. As a result, while this Other Consideration (b) weighs in favour of revocation, it is outweighed by Primary Considerations A and C, which favour non-revocation.

   (c) Impact on Australian business interests

4. The Applicant’s departure from Australia would not adversely impact any Australian business interests in the sense contemplated by Paragraph 14.3 of the Direction. I cannot recall any evidence that this consideration is of relevance in determining this application.

   (d) Impact on victims

5. The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). He will inevitably be the subject of ongoing reporting and monitoring requirements, given his status as a child sex offender.  Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.

   (e) Extent of impediments if removed

6. Paragraph 14.5 of the Direction stipulates that any assessment of the impediments a non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in that home country, requires a decision-maker to take the following factors into account:

   The non-citizen’s age and health;

   (b)Whether there are any substantial language or cultural barriers; and

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

7. The United Kingdom is culturally and linguistically similar to Australia. There are no discernible linguistic or cultural barriers confronting the Applicant were he compelled to return there. The United Kingdom has comparable standards of healthcare, social welfare and housing support to those in Australia. The Applicant will have access to those services as a British citizen.[50]

   [50] See Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly. While this decision relates to impediments faced by an Applicant upon return to New Zealand, the comments of the learned Senior Member Kelly are apt to like circumstances in the United Kingdom.

8. As observed by the Respondent, the Applicant “…has shown himself well capable of obtaining employment particularly in the IT environment and there would be…clear opportunities for him to obtain employment were he to return to the UK given current [historically low] levels of unemployment in that country.”[51]

   [51]Transcript, page 9, lines 1-5.

9. As also noted by the Respondent, the age at which a person would be entitled to an aged pension in the United Kingdom is 66. Were the Applicant to return to the United Kingdom this year, he would be entitled to an age pension in that country in four years’ time.

10. On the other hand, some time has passed since the Applicant resided in the United Kingdom. He arrived in Australia as a four year old and has resided here on a constant basis since then. I accept he will inevitably experience some short-term hardship in re-establishing himself in the United Kingdom.

11. Looking at the evidence relevant to this Paragraph 14.5 of the Direction, I do not consider that any of the factors therein significantly assist the Applicant. Be that as it may, I agree with the contention of the Minister regarding this Other Consideration (e) to the effect that some weight should be allocated to it in favour of revocation of the decision to cancel the Applicant’s visa.

12. With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:

    ·International non-refoulement obligations: not relevant

    ·Strength nature and duration of ties: weighs in favour the Applicant

    ·Impact on Australian business interests: not relevant

    ·Impact on victims: not relevant

    ·Extent of impediments if removed: weighs to some extent in favour of the Applicant.

    Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

13. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

14. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.

    ·Primary Consideration B is of slight weight;

    ·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, whether combined with each other or combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

15. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

16. The decision under review is affirmed.

I certify that the preceding 129 (one hundred and twenty – nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 30 May 2019

Date(s) of hearing:	16 May 2019
Applicant:	In person
Advocate for the Respondent:	Mr David Brown (Solicitor)
Solicitors for the Respondent:	Australian Government Solicitor