Razwantee and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 197
•15 February 2024
Razwantee and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 197 (15 February 2024)
Division:GENERAL DIVISION
File Number: 2023/9008
Re:Rakesh Razwantee
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Deputy President Boyle
Date:15 February 2024
Place:Perth
The decision of the delegate of the Minister dated 22 November 2023 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Temporary Graduate (Class VC) (Subclass 485) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
........[Sgd]..................
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – conviction for use of electronic communication with intent to expose a person under the age of 16 years to indecent matter – where the Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Ministerial Direction No. 99 – cancelled visa has expired - protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments if removed – considerations in favour of revocation of cancellation outweigh those against revocation of cancellation – decision under review set aside and substituted
LEGISLATION
Criminal Code Act 1995 (Cth) ss 27, 474.26
Criminal Code Act Compilation Act 1913 (WA) ss 204B, 204B(2)(a)(i), 204B(2)(a)(ii)
Migration Act 1958 (Cth) ss 189, 197C(1), 197C(3), 197C(3)(c), 198, 499, 499(1), 499(2A), 500(1)ba, 500(6B), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 4(1), 5.1, 5.2, 6, 7, 8, 8.1, 8.1.1(1)(a)-(e), 8.1.2(1), 8.1.2(2)(a)-(b), 8.2(1)-(3), 8.3(1)-(4), 8.4(1)-(4), 8.5(1)-(4), 9.1, 9.2, 9.3, 9.4
REASONS FOR DECISION
Deputy President Boyle
15 February 2024
THE APPLICATION
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 22 November 2023 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the Applicant’s Temporary Graduate (Class VC) (Subclass 485) visa.[1]
[1] R1/11.
The Applicant’s visa was cancelled on 2 May 2023 under s 501(3A) of the Act,[2] because the Applicant did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of Western Australia.[3]
[2] R1/61.
[3] R1/31.
On 5 May 2023, the Applicant made representations for the revocation of the cancellation of his visa,[4] and on 22 November 2023, a delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above).
[4] R1/69-94.
The Applicant was advised of the decision not to revoke the cancellation of his visa by letter dated 23 November 2023.[5]
[5] R1/7.
Section 500(1)(ba) of the Act allows an application to be made to the Administrative Appeals Tribunal for review of a decision of a delegate of the Minister made under s 501CA(4) of the Act not to revoke the cancellation of a visa.
This application for review was lodged with the Tribunal on 30 November 2023,[6] which was within the nine days of the Applicant being notified of the decision as allowed for such applications under s 500(6B) of the Act.
[6] R1/1.
BACKGROUND
The Applicant is a 45-year-old citizen of Mauritius. He first arrived in Australia on a student visa on 20 October 2007 with his wife.[7] He was, at the time of his arrival, 29 years old.
[7] R1/60.
On 13 April 2022 the Applicant was granted the Temporary Graduate (Class VC) (Subclass 485) visa which was cancelled on 2 May 2023. The visa allowed the Applicant to stay in Australia up to 13 October 2023.[8]
[8] R1/142.
On 17 March 2023 the Applicant was convicted in the District Court of Western Australia, on his plea of guilty, of use of electronic communication with intent to expose a person under the age of 16 years, to indecent matter contrary to s 204B of the Criminal Code Act Compilation Act 1913 (WA). The Applicant was sentenced to a term of imprisonment of 18 months.[9]
[9] R1/31 & R2/1.
The only other convictions that the Applicant has are in the Perth Magistrates Court on 18 May 2010 for unlicenced vehicle and unauthorised driving by a learner, for which the Applicant received fines of $50 and $150 respectively, and on 10 September 2008 for no authority to drive for which he received a $150 fine and suspension of licence for three months.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b) the person is 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.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) …
(b) … or
(c) the person has been sentenced to a term of imprisonment of 12 months or more...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.
THE ISSUE FOR DETERMINATION
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 5 and 6 February 2024. The Applicant, who appeared from Acacia Prison by telephone, was represented by Ms D Naidu of Waterbrook Legal and the Minister was represented by Ms C Mumford of Australian Government Solicitor. Ms Naidu and Ms Mumford appeared by video. The Applicant and his wife, Usha Razwantee, gave oral evidence at the hearing.
The following documents were admitted into evidence:
(a)Support Letter - Sabita Rijal dated 11 January 2024, received 17 January 2024 (A1);
(b)Support Letter – Sarah Malacari dated 11 January 2024, received 17 January 2024 (A2);
(c)Support Letter to Parole Board – Liz Mannunkal dated 19 September 2023, received 1 February 2024 (A3);
(d)Respondent’s Section 501G Documents (R1); and
(e)Respondent’s Tender Bundle (R2).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[10] The character test is defined in s 501(6) of the Act (see [12] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [13] above) 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...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and therefore he has a substantial criminal record and, as a result, does not pass the character test. The Applicant conceded that he does not pass the character test.[11]
[10] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66.
[11] para 2.5 of the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) and para 1 of Applicant’s submissions in response dated 31 January 2024 (Applicant’s Submissions in Response).
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 2 May 2023. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.[12]
[12] A valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act – see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6.
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii)…
(iii)...
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
...
Apart from three minor traffic matters, the Applicant has committed only one offence, the use of electronic communication with intent to expose a person under the age of 16 years, to indecent matter (the indecent matter offence) (see [9] and [10] above).
The Applicant’s SFIC made the following submissions relevant to the consideration of the nature and seriousness of the Applicant’s offending:
(a)The indecent matter offence is serious.
(b)The Applicant does not have an extensive criminal history.
(c)There is no “cumulative effect” of repeat offending.
(d)The indecent matter offence did not occur over an extended period and relates only to communication.
The Minister’s Statement of Facts, Issues and Contentions dated 23 January 2024 (Minister’s SFIC) made the following submissions relevant to the nature and seriousness of the Applicant’s offending:
(a)The Applicant concedes that his offending is serious,
(b)The Applicant’s crime cannot be considered as anything other than very serious. Direction 99 makes it clear that sexual crimes are to be viewed very seriously.
(c)The Applicant’s offending is of a sexual nature and involves a child.
(d)The sentencing Judge considered the Applicant's offending to be serious based on a number of factors, including:
(i)the offending was over a period of time which means the Applicant had the opportunity to reflect on and stop the communication.
(ii)The offending involved a real child, someone who the applicant knew to be a real child and using information that the Applicant had learnt from that child's life.
(iii)The Applicant knowingly sent explicit images of himself to the child, the conversation was sexualised and he requested that the child send explicit images to him.
(iv)The offending involved a breach of trust as the applicant knew the child through family friendships.
(v)The Applicant engaged in subterfuge by creating a fake account of a child around the same age as the victim.
(vi)The Applicant attempted to meet the child for the purpose of seeing if the child would engage in sexual activity.
(vii)The grooming of the child so that if she did attend the meet-up, she had already considered the idea of sexually engaging with someone's parent or an older person.
The circumstances of the indecent matter offence were set out in the sentencing remarks of Barone DCJ as follows;[13]
[13] R1/32-57.
Now, the indictment is framed from 12 to 16 June but I can see from the messages that the initial communication and reaching out was earlier than that, and that was on 29 March 2022 where you contacted her under the name or profile of a person called Dylan Krakouer. … you purported to be someone who knew her from school and that you were also a young person. So you were pretending, I think it was, to be a 15-year-old boy.
At the time [victim] was a 13-year-old girl. I understand that she was the friend of your daughter and that you were family friends with [victim's] family, having got to know each other through your daughter and [victim’s] friendship from school.
So between that period of time you sent numerous messages so initially from about 29 March through to the 7th you sent messages trying to call as well. She indicated that she didn't know who Dylan was, but you persisted in the communications. You indicated through those communications that you knew something about her, not that you were some random unknown person. You used information that you had gathered from real life in order to try and convince [victim] that you were this young 15-year-old person who knew her. So you used real information about her and your understanding of her to try and keep the conversation going and to gather her trust so that she would respond to you.
Now, on 12 June you took photos of your penis and you sent them in the communications. Also in the communications there is other types of chat in relation to sexual matters. You sent photos of your penis and you said: “Do you like my dick?”
You also had a conversation about meeting up, so there was a conversation, the conversation moved to the notion that you would meet up with each other.
…
Now, you kept a conversation going with who was now [victim’s] mum and was communicating on the Messenger. The messages indicate that you at part of that send an image which shows your torso of a person. You talk about other sexual conduct in the messages. For example, you talked about - I'll just find it - whether or not she had had sex with anyone, you talked about whether or not she would go with an adult if she knew them. You talked about whether she was a virgin.
…
Now, you sending the pictures of your penis is obviously part of what makes it serious. Sending images as opposed to just conversation is a serious form of communicating with a child in these ways. The image, whilst obviously depicting a male penis in an erect state, and is something no child should be exposed to, couldn't be described at being at the perverse end of communications but it was, nonetheless, more than one image that was sent.
…
The conversation, though, isn't overly perverse. That's always a matter of comparison, but the comparison isn't highly perverse or degrading in any particular way. But it is clearly sexual conduct.
…
…there are other communications about meeting up but this is the communications that relate specifically to the lead-up to 16 June.
…
trying to encourage the child. You send, I think it is, another image of your penis and then the conversation turns into communications about her sex life again:
…
Now the reason that you’ve heard so much discussion in relation to the meeting is it is a serious aspect of offending of this type if there is a plan to meet. What the authorities speak about is that - and it's important in terms of assessing the seriousness, is to look at the risk that is posed. So what is the risk that you posed to children and what's the risk that you pose to reoffending in this way again and when looking at what is the risk that you pose, you need to consider, well, in the turning up that demonstrates somebody who is more likely to pose a real risk to children of sexual offending.
They say this type of offending is about being preventative in character so it's focussed on your intention rather than on the actual effect or the effect of your conduct but the cases which speak about the more serious examples being those where people turn up is because it asks me to consider and focus on where there's a substantial risk that you will come into contact with a child and commit an actual contact sexual offence against a child so that means to actually sexually offend in person against a child.
In my view, those communications reveal a couple of things. They reveal that this is a serious example of this type of offending. This communication appears not - occurs not just on one day but over a period of time so the offending is between 12 to 16 June so there's a lot of conversation that occurs over that period of time, not just one day.
Why that's serious is because you had time to reflect and stop and consider your own communication. So there's some degree of persistence in doing it on more than one day although I accept that this is only a communication that occurs a relatively short period of time, for example, by comparison it's not over the course of months or years but nonetheless it's not on a single day.
Her Honour noted again that the offence involved “a real child” and a “breach of trust” as well as “subterfuge”. She then stated that she was:
…satisfied beyond reasonable doubt by having a look at all of the material that the intention to meet up was to meet up for the purposes of seeing if the child would engage in sexual activity.
…
That is not to say that you intended to, if she wasn’t willing, commit an offence against her. I'm not making any finding as to what it was specifically but that you had turned up with the intention to see if that child would engage in that type of conduct.
Her Honour noted that that conclusion was consistent with Dr McCue’s report. She found, based in particular on Dr McCue’s report, that because the Applicant had sexualised his thinking towards the victim, he posed a risk to the victim. She was not however, satisfied that he posed a risk to all children.[14] Her Honour then observed that:
I'm not punishing you for that, I'm punishing you for this communication and that informs, in part, the seriousness of the communication. So, as I said, when I look at all of those things, I am satisfied that this is a serious example of this type of communication and offending.
[14] R1/45.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) – The Applicant has been convicted of a sexual crime which, according to this subparagraph is “to be viewed very seriously”. The fact that the sexual crime was committed against a child further elevates its seriousness. I am obliged to take into account that the Australian Government and the Australian community consider such crimes to be very serious. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99 (Singh v Minister for Immigration, Citizenship and Multicultural Affairs);[15] see also Price v Minister for Immigration, Citizenship and Multicultural Affairs.[16]
(b)Paragraph 8.1.1(1)(b) – the Applicant’s offending does not come within the types of offences referred to in these subparagraphs.
(c)Paragraph 8.1.1(1)(c) – the Applicant was sentenced to a term of imprisonment of 18 months. The maximum penalty for the offence is five years’ imprisonment. While such an offence is inherently serious, as noted by Barone DCJ in sentencing the Applicant, that while the images transmitted were not, by comparison to other cases, highly perverse or degrading in any particular way, the Applicant’s offence was still a serious example of this type of offending. This is reflected in the not insubstantial term of imprisonment imposed by her Honour.
(d)Paragraphs 8.1.1(1)(d) and (e) – As the Applicant’s SFIC contended, as there has been only one serious offence committed by the Applicant, there is no frequency in his offending nor any cumulative effect.
[15] (2023) 296 FCR 582 at [73] per Snaden J.
[16] [2023] FCAFC 171 at [71].
As noted above, para 8.1.1(1)(a) of Direction 99 requires the decision-maker to take into account the views of the Australian Government and the Australian community that sexual crimes of are to be viewed “very seriously”. This direction requires consideration of the seriousness of the Applicant’s criminal offending. While it is undoubtedly the case that the indecent matter offence was serious and, as a sexual crime, must be taken to be viewed very seriously by the Australian Government and the Australian community (para 8.1.1(1)(a)(i)), it is at the lower end of seriousness for sexual crimes. Accordingly, while that offence is to be taken to be viewed very seriously by the Australian Government and the Australian community, because it is effectively a one-off and did not involve any physical contact with the child, I do not assess the Applicant’s criminal offending to be very serious. The Applicant’s criminal offending to date is properly, in my view, to be assessed as serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, 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. 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.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant’s SFIC and the Applicant’s Submissions in Response did not make submissions specifically addressing the nature of the harm that would be caused if the Applicant were to engage in further criminal or other serious conduct. Rather than addressing the elements of the first primary consideration, the protection of the Australian community, the Applicant’s submissions, in effect, dealt with that consideration by arguing that the Applicant was no, or at most a low, risk of reoffending.
Some concession as to the type of harm caused by the Applicant’s criminal and other serious conduct and, presumably, by the sort of harm that would be caused if he were to repeat that conduct, is made in the material provided by the Applicant to the Department in support of his request for revocation of the cancellation of his visa. In an undated statement included with that request, the Applicant made the following comments:[17]
I feel deeply guilty about and the effect this has had on the victim, her family and my family.
…
I fully understand the effects of my behaviour on everyone around me. I understand that I completely broke the trust of the victim and her family, as we were once considered friends. I would have potentially damaged any trust the victim will now have on other men in her life, as she grows up. I am very aware that I hurt the victim and her family through my actions, which I wish so much I could reverse.
…
I need to say that I have learnt my lesson. My remorse and payment for my actions came well before my incarceration. I would never hurt anyone in this way again. I feel deeply saddened for the victim and her family as well as for mine. I would never want anyone to go through this again.
[17] R1/74.
While the above statements show some limited insight into the effect that the Applicant’s conduct had on the victim and her family, the vast majority of the Applicant’s statements concentrated on the impact that his being caught, convicted and imprisoned for his criminal behaviour has had on him and his family and his future prospects. Consideration and understanding of the impact of his behaviour on his victim seems to come a distant second in the Applicant’s thinking. That lack of insight is of some concern.
The Minister’s SFIC made submissions to the following effect in relation to the nature of harm that would be caused if the Applicant were to repeat his criminal and other serious behaviour:
(a)The nature of the harm that that would be caused to the community should the Applicant re-offend in a similar manner is self-evident. The harm is psychological and may also become physical. This is because:
(i)the Applicant used a position of trust in an attempt to solicit explicit images of a child and knowingly sent explicit images to a child;
(ii)the Sentencing Judge was satisfied beyond reasonable doubt that the Applicant arranged to meet with the child for the purpose of seeing if she would engage in sexual activity with the Applicant;
(iii)while the sentencing Judge did not consider the Applicant would commit an offence against the child if she was not willing, the implication is that the Judge was satisfied that if the child was willing, the Applicant intended to engage in sexual activity with the child.
In considering the nature of the harm to the community or to individuals if the Applicant were to “engage in further criminal or other serious conduct” (para 8.1.2(2)(a)), it is obviously necessary to identify the criminal or other serious conduct. I am mindful of the fact that the Applicant was convicted of using an electronic communication to expose a child to an indecent image contrary to s 204B of the Criminal Code. While the section of the Criminal Code pursuant to which the Applicant was convicted also includes use of an electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity (s 204B(2)(a)(i)), the Applicant was convicted under s 204B(2)(a)(ii) of use of an electronic communication with intent to expose a person under the age of 16 years to indecent matter.
I am also mindful of the fact that the Applicant was not convicted of the more serious crime of physically engaging in a sexual activity with a person under the age of sixteen or any of the other more serious crimes under s 321 of the Criminal Code or of using a carriage to procure or groom a person under the age of 16 contrary to ss 474.26 or 27 of the Criminal Code Act 1995 (Cth). I do, however, take into account the observations and conclusions of Barone DCJ in sentencing the Applicant set out in [35] and [36] above. Looking at the totality of the Applicant’s behaviour over a period of months, not just at the criminal conduct between 12 and 16 June 2022 which constituted the transmission of indecent matter, Barone DCJ was satisfied beyond reasonable doubt … that the intention to meet up was to meet up for the purposes of seeing if the child would engage in sexual activity. The Applicant was arrested at the time and place that he had arranged to meet the victim, so it is a matter of speculation what the Applicant would have done had he not been stopped by the police and the victim, rather than the police, had turned up to the meeting. It was on that basis that her Honour observed that “turning up … demonstrates somebody who is more likely to pose a real risk to children of sexual offending” (see [35) above), that is, a real risk of something more than merely using an electronic communication to transmit indecent matter.
As noted above, para 8.1.2(2)(a) of Direction 99 requires the decision-maker to consider the criminal or other serious conduct engaged in by the non-citizen. In the present case that other serious conduct is the Applicant’s conduct over the longer period starting in March 2022 which Barone DCJ found evidenced an intention on the part of the Applicant to meet up for the purposes of seeing if the child would engage in sexual activity. Accordingly, in looking at the type of harm that that the community or an individual may suffer if the Applicant were to engage in further serious conduct of the type that he has engaged in in the past, as well as the harm that might be caused if he were to repeat the behaviour that gave rise to his criminal conviction, the prospective harm would also include harm caused by behaviour of the type described by Barone DCJ referred to in [46] above.
The psychological harm likely to be caused if the Applicant were to engage in the behaviour he has engaged in in the past is serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
As noted above, the Applicant’s SFIC and Submissions in Response in effect dealt with the issues of the nature of the harm that would be caused if he were to repeat his criminal and other serious behaviour and the risk of the Applicant reoffending together. The Applicant’s SFIC made submissions relevant to the likelihood of the Applicant engaging in such behaviour to the following effect:
(a)The Applicant has taken responsibility for his offence by engaging in rehabilitation and has shown remorse in relation to the indecent matter offence.
(b)The “likelihood of him engaging in further conduct, such as the [indecent matter offence], is non-existent and is negligible at best due to alcohol consumption and external stress factors”.[18]
[18] Applicant’s SFIC para 4.17. I take this to be a submission to the effect that the risk of the Applicant engaging in the behaviour that he has in the past is non-existent or negligible as a result of the Applicant having addressed his issues with alcohol and dealing with stress.
(c)In support of the above contention the Applicant points to the following matters:
(i)The Applicant does not have an extensive criminal record;
(ii)There is no cumulative effect of repeated offending;
(iii)The Applicant pled guilty, is deeply remorseful for his actions, acknowledges the effect of his actions on his victim and takes responsibility for his offending.
(iv)The offence was not over an extended period and relates only to communication.
(v)The sentencing judge accepted that the Applicant was remorseful and he has apologised to his family and friends.
(vi)The Applicant’s family and friends are aware of his offending and would be able to monitor, assist, encourage and motivate the Applicant.
(vii)The Applicant has a vast array of support, and therefore, has a strong foundation to avoid future criminality and contribute to the Australian community as a hardworking adult and family man with Christian values.
(viii)The Applicant has asked the victim's family for forgiveness.
(ix)The Applicant has participated in a sex offenders’ program whilst in prison and was due to complete the course on 2 February 2024. He has also enrolled in Safe Care Men’s Group Treatment Program - Breaking the Cycle of child sexual abuse. He will also compete the Addictions Offending Pathways Program to rehabilitate him from alcohol consumption and to be able to manage external stress factors.
(x)Dr McCue found it unlikely that the Applicant would reoffend.
(xi)The Applicant has received counselling sessions from Infocus Counselling and is receiving psychological treatment in regard to his traumatic and abusive childhood.
The Minister’s SFIC made submissions to the following effect:
(a)Any risk of similar conduct is unacceptable.
(b)The most recent psychological assessment before the Tribunal is dated 2 March 2023 by Dr James McCue. However, the Department of Justice Stable Assessment Report, and Treatment Assessment Report both dated July 2023,[19] assessed the Applicant’s risk of reoffending.[20] The Treatment Assessment Report indicated that the Applicant is at an average risk of reoffending.
(c)The factors identified by the Applicant as indicating that he is no, or a minimal, risk of reoffending because he has addressed his issues with alcohol and stress should be given little weight.
(d)In his report Dr McCue considered that the Applicant had sexualised his victim as a result of cognitive distortions he held in relation to her behaviour. That is, he considered her behaviour improper and used that as a justification to engage in sexual conversations with her. Dr McCue also noted that the Applicant explained his offending as being the result of stress regarding his visa situation, conflict with his family and financial stressors.
(e)These are all situations and stressors that the Applicant will face if his visa cancellation is revoked, and he is released from detention. It is highly likely that the Applicant will face increased stressors due to his visa situation, conflict with his family, and financial stressors. It follows that there is a risk that in a similar set of circumstances, the Applicant will develop another sexual fantasy involving a child or family friend.
(f)There is no evidence of any ongoing counselling in relation to stress management, or psychological treatment regarding any childhood trauma outside of the letter dated 13 March 2023 which referred to six sessions of “Infocus Counselling”.[21] The source of the offending behaviour has not been appropriately addressed.
(g)The support that the Applicant identifies that he would have if he were to be released into the community is the same support that he had when he offended.
(h)When taken into prison, the Applicant claimed that he was too intoxicated to remember committing the offences, denied that he viewed the victim in a sexual manner and denied that he wanted to engage in sexual activity with the victim. This could lead the Tribunal to believe that any statements of remorse and responsibility by the Applicant were largely self-serving and do not lessen the Applicant’s risk of reoffending.
[19] R2/235-8 & R2/241-4.
[20] R2/243.
[21] R1/127.
In his report dated 2 March 2023,[22] Dr McCue made the following observations and findings:
[22] R1/115-26.
(a)The purpose for which the report was sought was to identify whether there were any psychological factors that may explain the Applicant’s offending behaviour.[23]
[23] R1/115.
(b)Dr McCue conducted in-person interviews with the Applicant on 29 November 2022 and 19 January 2023, each of 90 minutes.
(c)The Applicant’s manner and responses to the questions suggested that he was deeply embarrassed by, and ashamed of, his offending behaviour and was burdened by the pending legal consequences of his offending and the impact this may have on the status of his, his wife's and his children's visas.
(d)The Applicant took several photos of his penis and sent the images via the Messenger application to the victim, and asked, "Do you like my dick?" The Applicant initiated conversation in order to meet up with the victim alone.
(e)The Applicant continued to sexualise the conversation asking the victim if she was a virgin and repeatedly requested images of her vagina.
(f)The Applicant initially had difficulty discussing his offending behaviour and identifying his motivation to offend. He said, "I have no idea why I did it. Random reason. I don't know what goes wrong with me." He was also unable to recall when he created the alias profile and for what purpose he created the profile.
(g)The Applicant admitted that he ''talked about sex" with the victim and that he created a plan to meet the victim during his conversations via the Messenger application. When asked about his reasons for his behaviour he reiterated, "I don't know why I did that. Don't know what was in my mind." He said that he respected the victim’s parents and family and that he “didn't really have an intention to have sex with her."
(h)The Applicant commented that "some parts (of his offending) I don't remember." He said, "I feel ashamed as a husband and a father. Something like this breaks me down." He also commented that "I've worked with lots of young girls (in the restaurant industry) and never had sexual conversations." He was unable to identify what therefore prompted his sexual behaviour towards his victim.
(i)He admitted that he had often consumed alcohol prior to messaging the victim. He said that he had been drinking more frequently because of financial and family stress he was experiencing at the time. Although it is possible that alcohol may have had a disinhibiting effect on his behaviour and act in less restrained ways, it does not explain his desire to want to engage in sexual conversations with his victim.
(j)When challenged to consider the source of his motivation, the Applicant admitted "It was probably a fantasy ... I wanted attention. Maybe getting a reply made me keep going." When asked why he wanted attention from the victim he said, "I had noticed her not sitting in a proper way. Her leg was up; I saw everything (her underwear). Sometimes her underwear was see-through." He also commented that when the victim had visited his home, he had noticed that she was "quite tall" for her age and recalled that "she stood close to me.''
(k)The Applicant’s subsequent comments suggested that during his interactions with the victim when she would visit his home with her parents, he had viewed her in a sexualised way and formed a distorted perception that some of her behaviours were sexually suggestive.
(l)The Applicant denied that he had a sexual interest in children. He expressed remorse for his offending and demonstrated some victim awareness when he explained the likely impact of his behaviour on his victim.
(m)The Applicant reported that he consumed alcohol regularly and would drink one or two beers each day, and sometimes three or four. He said that he has “a low tolerance for alcohol. I feel drunk quickly." He explained that he would consume more alcohol during periods of stress and after an argument with his wife. He said that he was drinking more alcohol around the time of his offending, and at the time he sent some of the messages to his victim. It impressed that during periods in his life, the Applicant has used alcohol as a means of coping with stress and emotional discomfort. He reported that he has ceased drinking alcohol currently.
(n)Risk for Sexual Violence Protocol - Version 2 1(RSVP-V2). The Applicant’s online sexual conversations with the victim were persistent and frequent. His sexual online behaviour did not escalate; his communication was sexual in nature early in the conversation and he made comments regarding the victim sending pictures and the two of them meeting relatively early in their communication.
(o)The Applicant did not employ psychological coercion as part of this offending. However, the Applicant’s offending behaviour was highly manipulative due to his decision to use an alias whom he made a similar age to his victim. He did not have physical contact with his victim.
(p)The RSVP-V2 considers relevant factors to determining a person’s risk of future sexual violence. The Applicant has limited self-awareness or insight into his offending behaviour. The shame and embarrassment that he has experienced in reaction to his offending and subsequent arrest have made it difficult for him to reflect on his motivation to offend in a considered, open, and meaningful way.
(q)Although he does not meet the diagnostic criteria for alcohol use disorder, it is possible that the Applicant’s alcohol use was another risk factor that contributed to his offending behaviour. The Applicant also reported experiencing childhood trauma and, in Dr McCue’s opinion, this experience has contributed to his problems managing stress and developing functional coping strategies to emotional discomfort.
(r)The Applicant denies and minimises some aspects of his offending. He does not appear to present with entrenched or stable attitudes that support or condone sexual violence. However, given his difficulty in fully discussing his offending, this factor was difficult to assess fully. The Applicant does not appear to present with a stable pattern of arousal to pre-pubescent or pubescent children. Despite the nature of his offending and the likely sexual arousal he experienced in response to his victim, due to the relatively short period that he engaged in his offending behaviour and that she is his only victim, it cannot be concluded that he has an enduring paedophilic or hebephilic sexual interests.
(s)There is also no evidence that the Applicant presents with psychopathic personality traits or other psychological disorders. He has not had problems with other antisocial behaviours, he has not experienced problems with employment and he has no problems in his non-intimate, or intimate relationships.
(t)He has not engaged in psychological treatment previously and it is difficult to gauge the degree to which he might engage in, and benefit from, psychological treatment.
(u)The circumstances of the Applicant committing a similar offence in the future would involve him meeting an adolescent female, likely through his children or a family friend. He would need to interpret the child's behaviour in a sexual way and perceive them as a sexual being. He would likely develop a sexual fantasy involving his victim. He would be more inclined to act on this fantasy if he experienced heightened personal stress and failed to address the source of his stress or employ functional coping strategies. If he were to employ dysfunctional strategies, such as increased alcohol use, he could make an attempt to act on his sexual fantasy. This would involve him contacting the focus of his fantasy and potential victim.[24]
(v)A scenario of the Applicant re-offending, but the nature of his offending escalating, could occur in a similar way and under similar circumstances to the previous scenario. The difference, however, would be that after he has made contact with his victim online his behaviour could escalate to him having physical contact with his victim. This situation is, however, unlikely to occur given the consequences of his current offending.
(w)Based on the use of the RSVP-V2, the Applicant’s risk of a similar offending, or sexual offending with physical contact and escalated violence, is considered unlikely.
[24] Para 44 Dr McCue’s report; R1/123.
As noted by the Minister, the Department of Justice prepared reports going to the Applicant’s risk of reoffending.[25] Relevantly the Treatment Assessment Report concluded:[26]
Based on the Static-99R and the Stable-2007 combined, Mr Razwantee's composite assessment placed him on Level (III) for supervision and intervention. Individuals placed on Level (III) are an average risk of sexual reoffending. Mr Razwantee's static risk factors include: a conviction for non-contact sex offence, and having an unrelated victim. His dynamic risk factors include: significant social influences; general social rejection; impulsiveness; poor problem solving skills; negative emotionality; sexual preoccupation; and sex as coping.
…
Based on the current assessment, Mr Razwantee presents an average risk for sexual reoffending on the combined results of the Static-99R and the Stable-2007, and a moderate risk on the LS/RNR for future generalist offending. However, he presented a high risk/need on the alcohol/drug profile.
[25] Stable Assessment Report (R2/235-8) and Treatment Assessment Report (R2/241-4) both dated July 2023.
[26] R2/243-4.
The Applicant’s Individual Management Plan identified that Applicant at the time of that plan (21 November 2023) as participating in the Sex Offender – Medium Program with a then expected completion date of 2 February 2024.[27] The Applicant’s evidence at the hearing was that he has completed that program.[28] The plan also noted that the Addictions Offending - Pathways Program would not be available to the Applicant prior to release. At the hearing the Applicant also gave evidence that he was attending Alcoholics Anonymous (AA) meetings in prison. He had not completed any specific alcohol program while in prison. His evidence was that the Pathways alcohol program is not available to him due to the shortness of his sentence.[29]
[27] R2/224.
[28] Transcript 5 February at 69.
[29] Transcript 5 February at 70.
The Applicant relies on Dr McCue’s assessment of him being a low risk of reoffending. As is always the case with psychological assessments, Dr McCue was reliant on what the Applicant told him. Dr McCue’s assessment of the risk of the Applicant offending, as he has in the past, was based on what the Applicant had told Dr McCue about his offending and what motivated him to offend. That assessment, set out in [51(u)] above, was based on the Applicant’s advice that he had sexualised and fantasized about his victim as a result of her behaviour around him (see [51(j) and (k)] above). At the hearing, however, the Applicant denied that that was the case. In cross-examination the Applicant was taken to para 18 of Dr McCue’s report, the substance of which is reproduced in [51(j)] above. His evidence was:[30]
[30] Transcript 5 February at 58-59.
APPLICANT: Actually the – I never saw her in this – in this situation. So, yes, when the doctor was saying, he told me, “Look, you need to say something, like to get a good ground, like otherwise the report won’t have a ground.’
COUNSEL: So, sorry, are you saying that the doctor told you to say that?
APPLICANT: He didn’t told me to say that, he pushed me to say this.
COUNSEL: So why did you say that?
APPLICANT: Because he say, ‘You don’t have a reason, otherwise you will have to – you will have to go back – you will – because you will go to prison if you don’t have a good reason why you did that.’ Because I never – I never saw this girl like sitting in this manner, sorry.
COUNSEL: So why would you make that up then?
APPLICANT: I don’t know. At this time he was just keep asking me the same question.
COUNSEL: So did you think that the victim had acted towards you in a sexual way?
APPLICANT: No, I can’t say that but at that time probably when she was at home, I just take it into negative way.
Where that leaves Dr McCue’s assessment of the Applicant’s risk of re-offending is not clear,[31] however, it must be seen as having less weight given that the premise on which it was based was not correct. It does, however, illustrate Dr McCue’s assessment at para 11 of his report,[32] that the Applicant “had difficulty discussing his offending behaviour and identifying his motivation to offend” and his assessment at para 38 of his report that the Applicant has “limited self-awareness or insight into his offending behaviour”.[33] In the end the Applicant was not able to provide any coherent or consistent explanation for his offending behaviour other than, according to him, he only engaged in the offending conduct when he was drunk. However, as Dr McCue observed at para 16 of his report, while “it is possible that alcohol may have had a disinhibiting effect on his behaviour and act in less restrained ways, it does not explain his desire to want to engage in sexual conversations with his victim”.
[31] I also note that Barone DCJ relied on and accepted the report of Dr McCue in sentencing the Applicant (R1/52).
[32] R1/117.
[33] R1/122.
In that regard I note the Treatment Assessment Report commented that:[34]
Mr Razwantee seemed to believe that taking responsibility for his offending behaviour was sufficient and he did not need to consider further the consequences of his offence upon the victim and her family. However, his demeanour could likely be due to the ongoing stresses about his visa being cancelled and he estrangement from his family in Mauritius, including the rift between his mother and his wife.
[34] R2/241.
The Applicant’s evidence in relation to his attendance at the park at time that he had arranged to meet his victim was also confused, contradictory and generally unsatisfactory. It is incontrovertible that the Applicant was arrested by police at the time and at the location that he had arranged to meet his victim. It is also incontrovertible that the Applicant had a condom in his car at the time of his arrest.[35] In a text to the victim at around 9 am on 16 June 2022, the morning that he was arrested, the Applicant had asked the victim whether she had a condom with her, to which she replied that she did not. The Applicant’s response was: “So we can do it without a condom”. He was arrested moments later sitting in his car at the arranged meeting location.
[35] Dr McCue’s report para 13: R1/117.
Dr McCue’s report recorded that the Applicant had told him that he had gone to the park to make a phone call. In cross-examination the Applicant’s initial evidence was that on the morning that he was arrested he had dropped his daughter to school and was “heading back home when they stopped me”.[36] That story was simply untrue. The Applicant was sitting in his car in the carpark adjacent to the park where he had arranged to meet the victim when he was approached by police.
[36] Transcript 5 February at 46.
Counsel then put to the Applicant that his evidence that he had dropped his daughter at school and was heading home was wrong. His answer was:
No, it’s right. I was driving home, but I stopped there.
The Applicant’s evidence almost immediately changed as follows:[37]
[37] Transcript 5 February at 47.
COUNSEL: No. Mr Razwantee, you were either driving home or you had stopped at the park?
APPLICANYT: Yes, I – I probably stop at the park.
COUNSEL: Well, it’s not a matter of ‘probably’?
APPLICANT: Yes, I stop at the park, yes.
COUNSEL: They are fundamentally different things. When the police approached you?
APPLICANT: Yes.
COUNSEL: You were in your car already stopped, weren’t you?
APPLICANT: Yes, because when – when I was going and then I saw them, then I parked my car there, before – before they – before they approached to me.
I then asked the Applicant why he had stopped in the carpark adjacent to the park where he had arranged to meet the victim. His evidence was that he had parked his car “to go to Coles”. The following exchange then took place:
COUNSEL: But you are telling us that you didn’t drive to the park at the time of the meet-up – sorry – you drove there with no intentions to meet the victim?
APPLICANT: Yes, that’s right.
COUNSEL: Even though it was at the exact time and place that you had arranged to meet?
APPLICANT: Yes. I didn’t have any intention to – because I know – at this time I did know the girl know me. So if she will see me then of course it will be bad for me. Because I knew that. That’s why – that’s why I didn’t try to – what it’s called – yes, I didn’t try to meet up with the girl. I just put a plan to meet her but I didn’t have intention to.
COUNSEL: But why did you message her 20 minutes beforehand, confirming the meet-up?
APPLICANT: Yes, because – because when I get a reply then I just text her. I was – I was just trying to see what she will do.
It was put to the Applicant that he was sitting in his car at the park to meet the victim.[38] His evidence, initially in response, was that he was not there to meet the victim but to “…see what she will do”. That of course is inconsistent with his prior stories that he was driving home after dropping his daughter at school when he was stopped by police, that he went to the park to make a phone call or that he was in the car park adjacent to the park to shop at Coles.
[38] Transcript 5 February at 53.
The following exchange then took place:
TRIBUNAL: Mr Razwantee, you realise, don’t you, that – and this is a matter that I should put to you because it will go to credibility?
APPLICANT: Yes
TRIBUNAL: You have come up with three very different stories about why you were in the park. Your evidence, under affirmation today, initially was that you had dropped your daughter at school and you were driving home?
APPLICANT: Yes
TRIBUNAL: Your evidence then was that you admitted that, in fact, you had pulled into the car park?
APPLICANT: Yes.
TRIBUNAL: But that, in fact, you were going shopping at Coles or Woolworths?
APPLICANT: Yes.
TRIBUNAL: Now, that has changed again – or that is different to what you told Dr McCue that you had pulled into the car park to make a phone call. And also now for the first time, we’ve heard you saying that you were in the car park to see what the victim – or the reaction of the victim. So there are four fundamentally different stories that we’ve all heard within the last 10 minutes?
APPLICANT: No, like I – like I say there, I was – I pull my car there and then I got stopped – the cops stop me.
…
TRIBUNAL: So the police did not stop you. Secondly, we only heard today, for the first time that, in fact, your story now is that you were pulling into that car park to go shopping at Coles or Woolworths?
APPLICANT: Yes, and then - - -
…
TRIBUNAL: But that is fundamentally – you are now agreeing that you weren’t shopping?
APPLICANT: Yes.
TRIBUNAL: You weren’t driving, going home from your daughter’s school. You had stopped and to see what the victim was going to do?
APPLICANT: Yes.
TRIBUNAL: So you were there to see the victim, weren’t you?
APPLICANT: Yes.
The Applicant’s evidence on this point was less than satisfactory. The Applicant was not, in my view, a frank witness. While he asserts that he takes responsibility for his offending behaviour, such acceptance of responsibility is qualified by his repeated assertion that he cannot remember much of his offending behaviour and his assertion that he only engaged in the offending behaviour when he was drunk. With the reduction in the reliance that can be placed on Dr McCue’s assessment because it was, in part at least, based on false information provided by the Applicant, we are left with no real understanding of what caused the Applicant to behave as he did. Understanding the cause or causes of offending behaviour is obviously an essential step in the rehabilitation process.
I do, however, accept that, whatever the cause of the Applicant’s offending behaviour, he does deeply regret it, or probably more accurately, deeply regrets the consequences that his behaviour has had on him and his family, even if his appreciation of the effect that such behaviour has on victims is limited.
The Applicant’s wife has stood by him. She provided a number of letters of support and gave oral evidence at the hearing.[39] Mrs Razwantee’s evidence was that the Applicant’s offending behaviour was out of character, that he has always been a good husband and father to their two daughters. Her evidence was to the effect that she put his behaviour down to stress, and the mix-up of alcohol and medication drugs that the Applicant was taking for his depression.[40] The Applicant was under stress at the time because he had relatively recently lost his job, had had a car accident which threatened his ability to work in his profession as a chef and difficulties that they were having in relation to their visas. She says that she will support the Applicant and ensure that he undertakes relevant rehabilitation courses. I accept that the Applicant’s wife and daughters will be a stabilising influence on the Applicant and will also provide a very significant incentive against further offending which would see him again removed from them, potentially permanently.
[39] R1/149 & 151.
[40] Transcript 6 February at 88.
While the Applicant has not undertaken extensive rehabilitation programs, he has in effect undertaken the programs that have been available to him in prison and appears to be benefiting from his involvement with AA. I accept the Applicant’s evidence that he has not consumed alcohol since his arrest and that he now understands the danger that his drinking poses. Given the community support that is evidenced by the letters that the Applicant filed in these proceedings and the support of his wife and his daughters and with the clear understanding that he will not get another chance, I assess the Applicant to be a low risk of offending as he did in the past. I accept that the behaviour which resulted in his conviction was out of character and that the Applicant is significantly chastened by his experience. He is fully aware of what he will lose if he offends again.
While I assess the Applicant to be only a low risk of offending as he has in the past, the seriousness of the impact and the harm that this type of offending can have is such that this consideration, the protection of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa and moderate weight should be given to it.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Both parties contended that this consideration is not relevant in the present case. I agree. There is no evidence that the Applicant has engaged in conduct which would constitute family violence as that term is defined in Direction 99.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non- citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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) The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s SFIC and the Applicant’s Submissions in Response made submissions relevant to this consideration to the following effect:
(a)The Applicant has been in Australia since 2007.
(b)He has a family in Australia, including his wife and two minor daughters, who were born in Australia and who are Australian citizens.
(c)The Applicant has links to Australia through his work and close personal friendships with people who are Australian citizens who have provided letters of support to revoke the visa cancellation.
(d)Given that the Applicant has lived in Australia for over 16 years, it is only natural that the Applicant would have established strong ties with the Australian community and the Australian people.
(e)The Applicant has been in Australia for 16 years and as such, has integrated with his family into the Australian community. It would cause significant emotional and financial hardship to him and his family should he be returned to Mauritius.
(f)It has been established that removing long-term residents from a country which they have lived for a long period of time raises human rights issues and Australia should not be deporting non-citizens who have lived in Australia for most of their lives but are not citizens, regardless of what crimes they commit.
(g)Under Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) Australia has an obligation not to arbitrarily deprive a person of their right to enter their country. That obligation is not limited to Australian citizens. Article 12(4) embraces individuals who, because of particular ties to a country, cannot be considered mere aliens.
(h)Mandatory visa cancellation decisions may result in significant limitations on the enjoyment of human rights. In order for these limitations to be compatible with Australia’s international human rights obligations, they must be in pursuit of a legitimate objective and be a reasonable and proportionate means of achieving that objective.
(i)The key objective is to enable the Australian Government to manage risks posed to the Australian community by non-citizens who have committed crimes. Protection of public safety is a legitimate objective under international human rights law. However, the limitations on human rights resulting from visa cancellations on criminal grounds is also a legitimate concern and in certain circumstances, these limitations may also be reasonable and proportionate.
(j)However, where a visa cancellation decision has more serious consequences as is the case for the Applicant being separation from his family and his children, poor chances of re-establishing himself financially and with appropriate housing and if necessary, having to relocate the children who are Australian citizens to a country they were not born or raised in invokes the limitations on human rights caused by the decision because it is not reasonable or proportionate, even if the legitimate objective is the protection of the Australian community.
(k)Cancellation of the Applicant’s visa based on criminal conduct effectively imposes an additional punishment on the Applicant who has already been sentenced and punished which may be a breach of article 9 of the ICCPR.
(l)Australia should take full responsibility for criminal offending within its own jurisdiction in support of a commitment to rehabilitation and in recognition that consequences of offending are a consequence of the country in which the Applicant has lived for a substantial amount of time, not in the country in which he was born.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant has identified three immediate family members: his wife and two children. His wife has provided supporting statements. The Applicant’s two daughters have also supplied supporting statements and evidence that they are Australian citizens. The statements all indicate that the Applicant’s Family rely on him for financial support.
(b)The Minister Accepts that there will be adverse impact on the Applicant’s immediate family if the visa were to remain cancelled.
(c)The Applicant has lived in Australia for 16 years. The Minister accepts that this is a significant period in the Applicant’ s life. He did not spend his formative years in Australia.
(d)Moderate weight should be given to the Applicant’s other ties to Australia including employment history, involvement in the local church, and friendships made in Australia.
(e)The Minister accepts that the strength, nature and duration of ties to Australia is likely to weigh moderately in favour of revocation.
Paragraph 8.3(1) of Direction 99 requires the consideration of “any impact of the decision on the non-citizen's immediate family members in Australia...”. The impact of an adverse decision on the members of the Applicant’s immediate family, in this case the Applicant’s wife and two minor daughters, would be very significant. The Applicant’s wife’s statement dated 26 October 2023,[41] relevant to this consideration, stated:
(a)She remains in contact with the Applicant by telephone every day, sometimes two or three times a day. The Applicant writes letters to her and their daughters every two weeks.
(b)She has known the Applicant for 23 years and has been married to him for 17 years.
(c)They had many challenges in their lives in Mauritius and decided to move to Australia. She will welcome the Applicant back into the family and will support him through whatever treatment is needed. They will work to make their relationship stronger.
(d)The Applicant has always been a good father to their two daughters, aged 14 and 10 years. Her has never hurt or disrespected her or their daughters. The girls love and respect the Applicant.
(e)They do not have any support in Australia other than the Applicant.
(f)She fears for her daughters and their mental health if the Applicant were not allowed to stay in Australia. She is now alone raising their daughters without any help or benefits from the government. She is suffering emotionally and financially and her health is suffering. She does not spend as much time with her daughters as she would like as she has to work full time to support them and herself.
(g)The two girls are well established in their schools. Australia is the only country that they know.
(h)There is currently high demand for chefs and the Applicant would have no difficulty in obtaining employment.
[41] R1/163.
The Applicant’s wife also provided a statement dated 9 May 2023 which made submissions to the same effect as the letter dated 26 October 2023.[42] In her letter dated 9 May 2023 the Applicant’s wife also noted that the Applicant’s imprisonment has been the first time that she and the children have been separated for the Applicant. She also advised that the two daughters speak only English and, if they were forced to return to Mauritius, she fears that the children’s mental health will suffer.
[42] R1/149.
I also note the letter dated 9 May 2023 provided by Women’s Health and Family Services which advised that the Applicant’s wife was receiving counselling to manage overwhelming fears of isolation and anxiety caused by the Applicant’s incarceration and the practical impact on the daughters of having only one parent and reduced financial resources.[43]
[43] R1/185.
A letter from Park Medical Group stated that the Applicant’s wife was under medical care for depression and that she was struggling with financial difficulties, social isolation and emotional difficulties.[44]
[44] R1/184.
Letters were also provided by the Applicant’s daughters. The older daughter recently turned 15 years’ of age and the younger recently turned 11 years’ of age. In her letter the older daughter speaks of her disappointment at the thought of her father being deported,[45] the effect that separation has had on her and her sister and how the Applicant was a caring and supportive father. She speaks also of her mother struggling financially and emotionally without the Applicant. The younger daughter’s letter similarly refers to the stress that separation from the Applicant has had and the key role that he plays in their lives.[46]
[45] R1/152.
[46] R1/155.
It is also apparent from the letters of support provided by friends, fellow church members and former work colleagues that the Applicant has social links with the Australian community outside the direct members of his family.[47] The authors of these letters clearly hold the Applicant in high regard as a hard-working, honest man and a good and loving father. Undoubtedly these members of the Australian community would be at least emotionally impacted by a decision that resulted in the Applicant being sent back to Mauritius.
[47] R1/147, 159-61.
While the Applicant arrived in Australia after his formative years, the Applicant has been in Australia for over 17 years and has contributed to the Australian community through his regular employment and charitable work through his church. Overall, the consideration of the Applicant’s links to the Australian community, primarily because of the impact on his immediate family, his wife and two minor daughters, that an adverse decision would have, weighs heavily in favour of revocation of the cancellation of the decision to cancel the Applicant’s visa.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) 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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two children relevant to this consideration, his 15-year-old and 11-year-old daughters with his wife. The Applicant’s SFIC made submissions to the following effect:
(a)Not enough emphasis was placed by the delegate on the delicate balance between protecting the Australian community and considering what is in the best interests of his Australian minor children.
(b)No other consideration can be treated as “inherently more significant” than the best interests of the children.[48]
(c)The evidence further demonstrates that the Applicant maintains a strong and loving relationship with his biological daughters.
(d)If the Applicant’s visa cancellation is not revoked, this would cause catastrophic and irreversible harm to the Applicant’s family unit, which would be critical to his two daughters citing as evidence the letters written by the two daughters (see [77] above).
(e)The Applicant will play a positive parental role for his daughters in the future. He provides the family unit's main income and emotional and loving support to his daughters. He is an integral part of the family unit.
(f)The evidence demonstrates that the Applicant’s wife is struggling both financially and emotionally without the Applicant’s presence at home. She has to work long hours to support her children and satisfy household, school, and legal fees concerning the Applicant’s immigration case before the Tribunal. She has no family support here and cannot access government payments.
(g)An adverse decision would mean that the Applicant’s wife and children would need to move back to Mauritius. This would lay a disproportionate amount of emotional and psychological distress upon the children if they were to leave Australia, which has been since their birth where their friendships, education and childhood have been established. Australia is the only place the children have known.
[48] Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 and the judgment of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [45].
The Minister’s SFIC made submissions and contentions to the following effect:
(a)The Applicant plays a parental role in the lives of the two children.
(b)The Minister accepts that the Applicant’s family relies on the Applicant for emotional and financial support.
(c)The Minister accepts that the best interest of the minor children in Australia weighs in favour of revocation of the cancellation of the Applicant’s visa.
The facts and evidence relevant to this consideration are largely set out in the consideration of the third primary consideration, the strength nature and duration of ties to Australia, in particular [71(e)], [72], [73(a), (d), (e), (f) an (g)], [74]-[78] above.
Considering the factors identified in para 8.4(4) of Direction 99 relevant in the present case, I find:
(a)Subparagraph (a) - the Applicant’s relationship with his two children is obviously parental. Until his imprisonment, he has had constant close contact with the children throughout their lives.
(b)Subparagraph (b) - until his arrest, it appears that the Applicant was a model father. While he committed a serious sexual offence against a child, my assessment is that he is a low risk of re-offending. Further, the scenario identified by Dr McCue (see [51(u)] above) in which the Applicant might offend is such that it is unlikely to include an offence against his daughters. I am satisfied that the Applicant is likely to play a positive role in his daughters’ lives as he did before his arrest.
(c)Subparagraph (c) - there is no evidence that the Applicant’s offending, apart from it resulting in his imprisonment and physical separation from his children, has had a negative impact on the children.
(d)Subparagraph (d) – the children’s letters and the evidence of their mother demonstrate that the Applicant’s absence is having a negative effect on the children. It is fair to assume that that would only get worse if the Applicant were to be permanently separated from them, or if they were required to relocate to Mauritius.
(e)Subparagraph (e) – while the children’s mother is fulfilling a parental role, it is clear that she is struggling to cope, emotionally and financially. I am satisfied that the children’s best interests would be served by having both parents in their lives and with the Applicant being able to share the burden of raising the two children.
(f)Subparagraph (f) – both of the children wish their father to stay in Australia (see [77] above).
It is, in my view, overwhelmingly clear that the best interests of the Applicant’s two daughters would be served by the Applicant being allowed to stay in Australia. An adverse decision, while not immediately resulting in the Applicant’s removal, would be a step in the process of the Applicant’s ultimate removal. The consequence would either be the children not having their father in Australia providing parental duties, including financial support, or the children being uprooted from their school and being removed from the only culture and country that they have known. Either consequence would have a detrimental impact on the children.
The consideration of the best interests of the Applicant’s two minor children weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
...
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
...
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant’s submissions in relation to this primary consideration were rolled into the Applicant’s submissions on the risk to the Australian community. Paragraphs 4.5-24 of the Applicant’s SFIC came under the heading “Risk to the Australian community & expectations of the Australian community”. While there may be some overlap between the two considerations, they are separate primary considerations under Direction 99 which must be addressed by the decision-maker and to roll the submissions in relation to them into the one set of submissions and contentions is not particularly helpful.
Further, as I pointed out to Ms Naidu at the hearing, many of the submissions failed to take into account the very particular wording of Direction 99 or even that of the immediately preceding Ministerial Direction, Direction 90 (see [17] above). Submissions made with reference to decisions of the Tribunal made as far back as 2003 in relation to previous Ministerial Directions, which were materially different to Direction 99, are of little assistance.
The Minister’s SFIC made submissions to the following effect:
(a)Due to the “norm” in para 8.5(1) of Direction 99, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR v Minister for Home Affairs,[49] this primary consideration weighs against revoking the visa cancellation.
(b)The Applicant’s submissions are superseded by FYBR.
(c)The Applicant’s crime was a sexual crime against a child and clearly falls into the category described in para 8.5(2)(c) of Direction 99.
(d)The Minister refers to para 5.2(6) and submits that the Applicant’s offence falls into the category of offence that is “so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community”.
[49] [2019] FCAFC 185; (2019) 272 FCR 454.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in para 8.5 of Direction 99, without independently assessing the community’s expectations in the particular case. The principles set out in para 5.2 of Direction 99, as set out in [19] above, are also relevant to this consideration.
In FYBR the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [17] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular those dealing with the expectations of the Australian community (para 8.5(1)) were expanded by Direction 90 and subsequently incorporated into Direction 99.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs I summarised the effect of the Full Court’s judgment in FYBR,[50] as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[50] [2020] AATA 3953 at [156].
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In FYBR Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs,[51] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently caried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the person’s visa.
[51] [2019] FCA 500.
The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[52] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
[52] [2023] FCAFC 68.
Nothing that the Applicant has raised in relation to this consideration indicates that the “norm” as stated in para 8.5(1) of Direction 99, should not apply. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [87] above) which provides that the Australian community expects that the Australian Government can, and should, cancel a non-citizen’s visa if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. The indecent matter offence obviously comes within the category of conduct described in para 8.5(2)(c).
I do not accept the Minister’s contention that in the present case that the Applicant’s single offence is so serious as to come within the operation of para 5.2(6) of Direction 99 (see [90(d)] above). The particular circumstances of the Applicant, the isolated nature of the relevant offence, the lack of other offending generally and the low likelihood of the Applicant reoffending, do not warrant this consideration being given anything more than minor weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.
Neither the Applicant’s SFIC nor the Applicant’s Submissions in Response made any submissions on these considerations. There were, however, statements made by the Applicant in the material provided to the Department in support of his request for revocation of the cancellation of his visa could be relevant to those considerations.[53] I deal with them, with the Minister’s contentions in respect thereof under the relevant headings below.
[53] R1/81-94.
Legal consequences of the decision (para 9.1)
Paragraph 9.1 of Direction 99 provides:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Minister’s SFIC made submissions to the following effect:
(a)Direction 99 states that decision makers should be mindful of the requirement under s 198 that unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section of the Act, and in the meantime, are liable to detention under s 189, noting also that s 197C(1) provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen. However, s 197C(3) provides that s 198 does not require or authorise removal of a person to a country in respect of which a “protection finding” has been made in the course of considering a protection visa application, except in the circumstances set out in s 197C(3)(c).
(b)No protection finding has been made in respect of the Applicant.
(c)In the material presented to the Department, the Applicant stated that he fears returning to Mauritius due to persecution on the basis of his conversion to Christianity, and that he fears being separated from his family.
(d)The Minister does not cavil with the delegate’s findings in relation to that consideration. The Applicant has not further substantiated any claim to fear harm, such as who he fears harm from, the nature of the harm and the likelihood that any harm will occur. Nor has he supplied any evidence to support that Christian converts are persecuted in Mauritius.
(e)In any event, even if the Applicant were to pursue that claim, it would be appropriate to defer assessment on the basis that it is open to him to apply for a Protection visa, by which his claims can be assessed comprehensively.
(f)If the non-revocation decision stands, then the Applicant would be prevented by s 501E of the Act from making an application for another visa, other than a Protection visa or Bridging R visa.
(g)If a protection finding was made and the Applicant’s removal became impracticable in the reasonably foreseeable future, then it is likely that he would no longer be liable to detention under s 189: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[54]
[54] [2023] HCA 37.
At the hearing I asked Ms Naidu whether the Applicant pressed any claims relevant to the “other considerations” under para 9 of Direction 99. Ms Naidu’s answer was that the Applicant’s Submissions in Response raised issues of Australia’s obligations under the ICCPR (see [71(g)-(l)] above). I pointed out to Ms Naidu that the matters raised in those submissions were covered by the mandatory considerations in Direction 99 including the rights of children, the individual’s ties to Australia and the impact of removal on the individual and the community. Ms Naidu confirmed that the Applicant had no submission in respect of the legal consequences of the decision.[55]
[55] Transcript 6 February at 118.
As noted above, the visa that was cancelled would have expired in October 2023 had it not been cancelled beforehand. Accordingly, even if I were to substitute a decision revoking the cancellation of the Applicant’s visa, that would not result in the Applicant being released into the community on the completion of his prison term (or on release on parole). Unless he obtains another visa, the Applicant will still be liable to removal in accordance with s 198 of the Act as he will not hold a visa. The indirect legal consequences of a decision under s 501CA(4) of the Act are those identified by the Minister as set out in [103(f)] above.
The legal consequences of the decision are indirect and, in any event, will be subject to the Applicant wishing to apply in the future for any visa for which he would be barred from applying absent a positive decision. Accordingly, while this consideration does weigh in favour of revoking the cancellation of the visa, only very minor weight can be given to it because of the very limited consequences and the contingent nature of those consequences.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
As noted above, while the Applicant’s SFIC and Submissions in Response made no submission specifically in relation to this consideration, when asked at the hearing whether the Applicant had any submissions, Ms Naidu referred to the evidence of the Applicant and his wife to the effect that they had no relationship with their respective families in Mauritius and could not expect any support from them if they were to return. She also referred to the evidence of the Applicant that everything in Mauritius is expensive.
Ms Naidu, however, was unable to point to any evidence that the Applicant’s ability to any impediment in the Applicant being able establish and maintain basic living standards (in the context of what is generally available to other citizens of Mauritius), taking into account the matters identified in subparagraphs (a)-(c) of para 9.2(1).
The Minister’s SFIC made the following submissions:
(a)The Applicant is 45 years of age. He would not face any language or cultural barriers upon return to Mauritius.
(b)The Applicant has extensive family residing in Mauritius, including his mother, father and four siblings. He has also returned to Mauritius for an extended period of time in 2016.
(c)The Applicant has qualifications as a commercial cook, as well as extensive work experience in Australia. The Applicant could use these skills to re-engage in employment upon return to Mauritius.
(d)While the Applicant may face some difficulty re-establishing himself in a country that he has not resided in for many years, the challenge is in no way insurmountable given his extensive familial connections there and Australian work history.
(e)The Applicant has identified health concerns including depression and anxiety. His prison records indicate he ceased using antidepressants while in the community, but that he is currently on a baseline treatment for depression.
(f)The Applicant will have access to medical care in Mauritius. Mauritius has a universal healthcare system and there are mental health care services available.
(g)The Minister acknowledges that the Applicant may face emotional hardship upon return to Mauritius, due to separation from his family members. However, it also appears that the Applicant’s family would move to Mauritius with him which would lessen that hardship.
(h)Overall, while the Applicant may suffer some hardship, the impediments upon return are not insurmountable and should only have minor weight in favour of revocation.
The Applicant has obtained qualifications and experience in Australia which he agreed would assist him in getting a job in Mauritius. There was evidence that the Applicant suffers from a shoulder injury as a result of a car accident and that he suffers from depression for which he is taking medication. He was educated in Mauritius, spent his formative years in Mauritius. He speaks the language, is familiar with the culture and there was no evidence that he would not be entitled the social, medical and/or economic support available to Mauritian citizens.
I accept that separation from his wife and children (if they were to stay in Australia) would cause significant emotional stress and that trying to settle and support his wife and children if they were to return with him to Mauritius would be a hardship and potentially an impediment to the Applicant establishing and maintaining a basic living standard. There is nothing to suggest, however, that such impediments would be permanent.
I find that there would be impediments in the Applicant establishing and maintaining basic living standards if he were to be returned to Mauritius, however, given they would be relatively minor and most likely of a temporary nature. While this consideration weighs in favour of revocation of the cancellation for the Applicant’s visa, I agree with the Minister’s contention that only minor weight can be given to it.
Impact on victims and Impact on Australian business interests
The Minister contended that neither of these considerations is relevant in the present case, The Applicant made no submission on either consideration. I agree that they are not relevant.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [21] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [17] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection,[56] and the Full Court judgment in Minister for Home Affairs v HSKJ.[57] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs for analysis of those cases.[58]
[56] [2018] FCA 594.
[57] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[58] [2023] AATA 755 at [182]- [183].
More recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[59] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[59] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. I now compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
Applying the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa and moderate weight should be given to it (see [68] above).
The second primary consideration, family violence committed by the Applicant, is not relevant in this case.
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs heavily in favour of revocation of the cancellation of the decision to cancel the Applicant’s visa (see [79] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa (see [86] above).
I find that the fifth primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa but only minor weight should be given to it (see [99] above).
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision weighs in favour of revocation of the cancellation of the Applicant’s visa, but that only very minor weight can be given to it (see [106] above). The only other consideration relevant in the present case, the extent of impediments in the Applicant establishing and maintaining basic living standards, weighs in favour of revocation of the cancellation of the Applicant’s visa, however, only minor weight can be given to it. (see [113] above).
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [21] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations in favour of revoking the decision to cancel the Applicant’s visa, in particular the third and fourth primary considerations, outweigh those weighing against the revocation of the cancellation of the visa. Accordingly, I find that there is another reason why the original decision should be revoked and that the discretion to revoke the cancellation of the Applicant’s visa should be exercised.
DECISION
The decision of the delegate of the Minister dated 22 November 2023 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Temporary Graduate (Class VC) (Subclass 485) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 128 (one hundred and twenty - eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.........[Sgd]....................
Dated: 15 February 2024
Date(s) of hearing:
5 & 6 February 2024
Solicitors for the Applicant:
Ms Deivamanee Naidu
Solicitors for the Respondent:
Ms Centaine Mumford
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