RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 4712
•26 August 2022
RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4712 (26 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4675
Re:RNSQ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:L M Gallagher, Member
Date:26 August 2022
Place:Perth
The Reviewable Decision, being the decision of the Delegate dated 2 June 2022, not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
..............[Sgd]..........................................................
L M Gallagher, Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – possession of child exploitation material – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 43-year-old man who came to Australia as a 8-year-old – reviewable decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Ahmed and Minister for Immigration [2018] AATA 4458
BSJ16 v Minister for Immigration & Border Protection[2016] FCA 1181
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Hambledon v Minister for Immigration & Border Protection[2018] FCA 7
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Mahmoodshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 169
Metcalfe and Minister for Immigration [2021] AATA 3498
Nigro v Secretary to the Department of Justice(2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Snowden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4504
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration & Border Protection (No 2)[2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
WSYT v Minister for Home Affairs (Migration) [2019] AATA 4621
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(5), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.2, 8.1.2(1), 8.1.2(2), 8.3, 8.4, 9, 9.1, 9.2, 9.3, 9.4.
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
REASONS FOR DECISION
L M Gallagher, Member
26 August 2022
The Applicant seeks review of a decision made by a delegate of the Respondent
(the Delegate) on 2 June 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).[1][1]R1, G4.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 7 June 2022,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[2]R1, G2.
The hearing was held on 9 August 2022 at the Tribunal in Perth. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers. The Respondent was represented by Ms Elizabeth Bennett of Minter Ellison, instructing Mr Tom Lettenmaier, of Counsel. The Applicant, his representatives and witnesses appeared in person.
The Respondent’s representatives appeared in person and via Microsoft Teams.applicant’s identity
Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal ordered that the name, address or any other information tending to reveal the identity of the Applicant and any member of his family not be published. As such, the Tribunal has assigned to the Applicant the pseudonym RNSQ.
background facts
The Applicant is a 42-year-old citizen of Portugal, who first arrived in Australia in March 1988 when he was eight years old.[3] The Applicant has not left Australia since his arrival.[4]
[3]R1, G11 p 71.
[4]R1, G11.
The Applicant comes from a large family. Living in Australia, he has:[5]
(a)Nine siblings, the youngest three of whom were born in Australia;
(b)Two daughters, now aged 12 years old and six years old, by his ex-partner;
(c)Four aunts and uncles;
(d)10 cousins; and
(e)18 nieces and nephews, 11 of whom are of minor age.[6]
[5]A1; R1, G17 pp 97-98, 100, 102-103, 105-106.
[6]R1, G17 pp 102- 103.
Applicant’s offending
The Applicant’s criminal history is set out in a National Police Certificate, dated 10 December 2019.[7] The details of are recorded as follows:
[7]R1, G6 p 55.
Court Court Date
Offence
Court Result
Perth District Court of Western Australia
15/08/2019 Possessed child exploitation material Imprisonment: 14 Months concurrent
from 15/08/2019Perth Magistrates Court 13/04/2011 No authority to drive Fine: $500 Fremantle Magistrates Court 02/09/2008 No authority to drive Fine: $400; disqualified 9 months Perth Magistrates Court 06/09/2007 Drive contrary to learner’s permit Fine $200 Perth Magistrates Court 12/09/2006 Unlicensed vehicle Fine: $100 Perth Magistrates Court 12/09/2006 No motor drivers licence Fine: $150; disqualified 3 months Fremantle Court of Petty Sessions 20/01/2000 Failure to give way from a “Stop” sign Fine: $400 Fremantle Court of Petty Sessions 20/01/2000 No motor drivers licence Fine: $400; disqualified 3 months Fremantle Court of Petty Sessions 29/04/1998 Drive contrary to learner’s permit Fine: $200; disqualified 3 months Fremantle Court of Petty Sessions 29/04/1998 Excess 0.02% Fine $100; disqualified 3 months concurrent
On 15 August 2019, the Applicant was sentenced to a term of imprisonment of 14 months by the District Court of Western Australia for one charge of 'Possession of child exploitation material' pursuant to s 220 of the Criminal Code (WA).
The Applicant also has a history of driving offences from 1998 to 2011, and a juvenile criminal record from 1995 to 1997 for ‘assault occasioning bodily harm’, ‘disorderly conduct’ and ‘damage.’[8]
[8]R2, S1, p2.
On 14 October 2020, the Applicant was released from prison and he is currently detained at Yongah Hill Detention Centre.
history of proceedings
On 20 November 2019, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[9] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501(7)(c) of the Migration Act, by virtue of his having been sentenced to a term of imprisonment of 12 months or more.[10]
[9]R1, G12.
[10]R1, G12, pp 72-73. See Sections 501(6)(a) and 501(7)(c) of the Migration Act.
The notice of visa cancellation invited the Applicant to make representations about why the Cancellation Decision should be revoked.[11]
[11]R1, G12, p 73.
On 5 December 2019, the Applicant requested the Cancellation Decision be revoked under s 501CA of the Migration Act and made representations in that regard.[12]
[12]R1, G16; G17.
On 11 May 2020[13] and 11 June 2020[14] the Applicant made further representations and provided submissions and documents in support of his application for revocation.
[13]R1, G18.
[14]R1, G57, G58.
On 13 October 2020, the Minister (the then Minister for Home Affairs) personally decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act.
The Applicant sought judicial review of that decision in the Federal Court, which was refused in a single-judge hearing.
The Applicant appealed the single-judge decision to the Full Court of the Federal Court, which overturned the single-judge decision and remitted the matter to the Minister for determination.
On 24 November 2021[15] and 25 January 2022[16], the Applicant again made further representations and provided further submissions and documents in support of his application for revocation.
[15]R1, G59, G60.
[16]R1, G69 to G71.
Present proceedings
As noted above,[17] on 2 June 2022, a delegate of the Minister made the Reviewable Decision.
[17]See para [1].
On 7 June 2022, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[18] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[18]R1, G2.
ISSUES
The Applicant does not dispute that he does not pass the character test.[19] The Tribunal, in any event, so finds: s 501(6)(a) and 501(6)(e) of the Migration Act preclude a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more. On the basis that on 15 August 2019, the Applicant was sentenced to a term of imprisonment of 14 months[20] for the offence of “Possessed child exploitation material”[21] he has a substantial criminal record as defined and therefore does not pass the character test.
[19]A1 [29].
[20]See para [5] above.
[21]Pursuant to s 220 of the Criminal Code (WA).
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[22] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”[23] why the decision to cancel the visa should be revoked,[24] having regard to the primary and other considerations in Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90).[25]
[22]Direction No. 90 para 5.1(3).
[23]See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].
[24][25]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), (08 March 2021).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 26 August 2022.
legislative framework
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)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) paragraph (6)(e) (sexually based offences involving a child); 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.
The character test
Section 501(6) of the Migration Act provides that:
(6)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)); or…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further 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.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.)
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as he then was)[26] made Direction No. 90 under s 499 of the Migration Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[27]
[26]From 1 July 2022, the title has changed to Minister for Immigration, Citizenship and Multicultural Affairs.
[27]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[28]
[28]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[29] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[30]
[29]Direction No. 90 para 5.1(4).
[30]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(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.
Paragraph 5.2 of Direction No. 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed 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 engage 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 any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)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 8.4(2) (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.
Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[31]
[31]Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[32]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
[32]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(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)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(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.
evidence
The Applicant gave oral evidence at the hearing and was cross-examined.[33] The Applicant also called the following witnesses to give evidence:
(a)W1 (the Applicant’s sister) (W1);[34]
(b)W2 (the Applicant’s brother-in-law) (W2);[35]
(c)W3 (the Applicant’s sister) (W3);[36]
(d)W4 (the Applicant’s sister) (W4);[37]
(e)W5 (the Applicant’s brother) (W5);[38] and
(f)Dr Phil Watts, Clinical Psychologist (Dr Watts).[39]
[33]The Applicant provided several statements to the Tribunal prior to the hearing: R1, G17, G51, G58, G61, A2 (2 statements within).
[34]W1 gave oral evidence in person and her statements appear at R1, G44 and A2.
[35]W2 is married to the Applicant’s sister, W4. W2 gave oral evidence by telephone and his statement appears at A2.
[36]W3 gave oral evidence in person and her statements appear at R1, G43, G66 and A2.
[37]W4 gave oral evidence in person and her statements appear at R1, G45 and G65.
[38]W5 gave evidence in person and his statements appear at A2 (2 statements within).
[39]Dr Watts provided two reports which appear at R1, G34 and A2.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 18 July 2022 (A1);
(b)Applicant’s Bundle of Evidence (parts 1 and 2, 70 pages) (A2);
(c)Applicant’s Reply Submissions dated 4 August 2022 (A3);
(d)Respondent’s G Documents, being a 381-page set of documents provided under s501G of the Migration Act numbered G1 to G71 (R1);
(e)Respondent’s Supplementary Documents, being a 181-page set of documents numbered S1 to S39 (R2);
(f)Respondent’s Further Supplementary Documents, being a 303-page set of documents numbered FS1 to FS4 (R3);
(g)Respondent’s SFIC dated 1 August 2022 (R4); and
(h)International Health and Medical Services (IHMS) documents filed on 9 August 2022 (R5).
The Tribunal has also considered the letters of support and statutory declarations of the Applicant’s additional family members and friends who did not give oral evidence at the hearing, previously provided and contained within R1 and A2.[40]
[40]See R1, G38 to G42, G46 to G50, G52, G53, G62, G63 and A2.
The Applicant
The Applicant provided evidence in his statements[41] and orally at hearing.[42]
[41]R1, G51, G58, G61; A2, documents 3 and 22. See also the Applicant’s personal circumstances form at R1, G17. The Applicant’s sisters, W3 and W1 assisted him in completing this form; Transcript p 15 [15]; p 26 [20]; p 39 [45]; p 79 [5]; p 102 [35].
[42]Transcript, pp 14–40.
The Applicant gave evidence that he has not maintained contact with anyone in Portugal since he arrived in Australia.[43]
[43]Transcript p 15 [5]
In terms of his family in Portugal, the Applicant said that:[44]
…I knew I had one aunty who I haven’t seen since I was a kid. I gave the revocation paperwork to my sisters and filled out those parts of the form, I only found out I had 14 cousins yesterday when my sister told me. I have never had any contact with any of them. [W3] told me that one of our aunties is recovering from something and another has a daughter going through cancer treatment.
[44]A2, document 22 p 70 [3].
The Applicant stated that he was in a relationship with his ex-partner for 14 years,[45] which ended when he went to prison.[46] The Applicant said his daughters still live with their mother, just the three of them[47] and his ex-partner’s new partner lives separately with his own three children.[48]
[45]See for eg R1, G17, p99.
[46]Transcript p 16 [15].
[47]Transcript p 23 [35]-[40].
[48]Transcript p 23 [40]-[45]. See also A2, doc 3 [10].
The Applicant said he has phone contact with his ex-partner about twice per month.[49]
The Applicant said that his family does not get on particularly well with his ex-partner and her new partner, so his family does not see his children very often.[50] The Applicant said that he has moved on from his past relationship and wants to focus on being present for his kids as they grow up in Australia.[51]
[49]A2, document 3 [7].
[50]A2, document 3 [10].
[51]A2, document 3 [12].
The Applicant said he has not seen his children since he went to prison and speaks to them every day on the telephone.[52] The Applicant said his absence has impacted his children, mainly his older daughter who is running amok, not listening to her mother,[53] and getting angrier.[54] The Applicant said that prior to this he lived with his ex-partner and his children[55] and had a very close bond with his daughters.[56] The Applicant said if he was removed from Australia there is no chance that he would see his children again, as he and his ex-partner could not afford it.[57] The Applicant said that if he could remain in Australia, he would seek to agree a custody arrangement with his ex-partner without involving the courts.[58]
[52]Transcript p 16 [20]-[30]. See R1, G51 [38], G61 [21] and A2, document 3 [8], [9].
[53]Transcript p 16 [45]. See R1, G61 [22]-[24].
[54]R1, G17 p 101.
[55]Transcript p 16 [30].
[56]R1, G17, p 101. See also R1, G51 [33].
[57]Transcript p 16 [40]; p 17 [5]. See also R1, G38 [15] and G51 [37].
[58]Transcript p 17 [10]-[15]; A2, document 3 [13]. The Tribunal notes there is no corroborative evidence from the Applicant’s ex-partner on this matter.
The Applicant said that his nephew N (N), who has autism, would probably be affected if he were removed from Australia.[59] The Applicant said that N doesn’t listen to most people but will listen to him for some reason and that he is able to calm and settle N down.[60]
The Applicant says he speaks to N via video calls once in a while.[61] The Applicant said that his other nieces and nephews[62] would also be affected if he were removed from Australia.[63]
[59]Transcript p 17 [25]-[35]. See R1, G51 [41].
[60]Transcript p 17 [30]; A2, document 3 [21].
[61]R1, G61 [17].
[62]The Applicant has 18 nieces and nephews, all residing in Australia and 11 of whom are still of minor age: A1 [139].
[63]Transcript p 17 [35]. See R1, G51 [42],[43].
The Applicant said that if he were removed from Australia, his parents would be “shattered” and that it would “break” them.[64] The Applicant said his parents suffer from depression and high blood pressure and his mother has heart problems,[65] which worries him.[66] The Applicant said that he has not seen his parents in two years, due to his parents’ health conditions and it having been too far for them to travel.[67] The Applicant said that he used to see his parents nearly every week when he was in prison.[68]
[64]Transcript p 18 [5].
[65]Transcript p 18 [5].
[66]R1, G51 [45].
[67]Transcript, p 18 [5]-[10].
[68]Transcript, p 18 [10].
The Applicant said that he is especially close with his siblings W5, W4 and W3 and that they used to “hang out” all the time.[69]
[69]Transcript, p 18 [15].
The Applicant said that since he has been in prison, his family has grown closer, that he has “opened up” to them a bit more and they talk to each other about anything now.[70]
[70]Transcript, p 18 [20]-[25].
When asked to describe the nature of his offending, the Applicant stated that he went to prison for a “child exploitation material” offence and that:[71]
No, I was not selling or distributing, I didn’t pay for it, I didn’t share, anything like that, no. I was just viewing…
[71]Transcript, p 18 [30]-[40].
As to when the police searched his house in 2018,[72] the Applicant said he was so ashamed and embarrassed because his wife and kids were present[73] and that he had denied searching for or viewing child exploitation material to police at that time because he had been told for all his life to “just deny everything and don’t answer any questions unless you have a lawyer present.”[74]
[72]See R2, S10.
[73]A2, document 3 [3].
[74]Transcript, p 19 [5].
The Applicant accepted that he had lied to police in his interview in 2018 by saying he had never searched for child pornography, because he did not want to get caught.[75] The Applicant also accepted that he had understood the caution issued to him at the commencement of the interview that anything he said or did during that interview may be used in evidence,[76] and that he had been offered the opportunity to try and contact a lawyer, friend or relative and had declined.[77]
[75]Transcript, p 28 [20]-[25] and p 30 [15]. See R2, S10, p 36, Q 128.
[76]Transcript, p 28 [35]-[45]. See R2, S10, p 28, Qs 37– 39.
[77]Transcript, p 29 [10]-[15]. See R2, S10, p 28, Q44; p29, Q47.
The Applicant said that it was about a year after the police searched his house that he was charged.[78] The Applicant said that he chose not to reoffend in the interim because:[79]
… I knew what I did when I got caught, and it was so wrong and disgusting that I didn’t want to do it again. I didn’t want to go through all that stuff again, the embarrassment and the shame that I brought to myself, my kids, my wife, my family and friends, everyone; not just me, it’s just everyone that I put through.
[78]Transcript, p 19 [10]-[25].
[79]His having access to the internet via phone in prison and detention and choosing not to search for child exploitation material: Transcript p 19 [30]-[35]; p 22 [5]-[15]. See also R1, G17 p 107; G51, p 250 [18]-[21]; G61 [6] and A2, document 3 [16].
The Applicant said he also feels remorse for the child victims of his offending, having gained the understanding that his actions created a demand for child exploitation material to be produced.[80]
[80]R1, G61 [7].
The Applicant said that he pleaded guilty to the charge because he didn’t want to go to trial and say that he didn’t offend when he did[81] and that he knew what he did was wrong.[82]
[81]Transcript, p 19 [40]; A2, document 22 [1].
[82]Transcript, p 30 [20].
The Applicant said his family only found out about his offending when he went to prison.[83] The Applicant said that his family members know about his offences and what he did and that if released, he can stay with W3, W4 or W5.[84]
[83]R1, G51 [12].
[84]A2, document 3 [20].
The Applicant said that the time he committed the offence, he was drinking about 180 standard drinks per week and that he quit drinking alcohol, going “cold turkey” just before his ex-partner’s birthday in June 2019.[85]
[85]Transcript p 20 [5]-[25]. See R1, G51 [27]; A2, document 3 [5].
The Applicant said he completed several courses in prison, including voluntarily participating in Alcoholics Anonymous and received counselling with Holyoake and ReSet while in prison.[86] The Applicant said his counselling with ReSet continued when he first arrived at the detention centre[87] and for six months after[88], however it has since ceased as he does not have the funds to pay for it and he will wait until he leaves detention until he sees a psychologist again.[89]
[86]Transcript p 20 [30]-[45]. See R1, G17 p 107; G51 p 251; A2, document 3 [18].
[87]Transcript p 32 [5].
[88]R1, G61 [2].
[89]Transcript p 32 [10]-[20]. See R1, G61 [4].
The Applicant accepted that he had attended some, but not all the appointments he had with a mental health nurse at the detention centre, because he did not recall having been provided with appointment slips (or otherwise have been advised of all these appointments).[90] The Applicant said he did, however, attend an appointment with a psychologist via video link from the detention centre.[91]
[90]Transcript p 32 [35]-[45]. See R1, G51 [29].
[91]Transcript p 32 [40]. See IHMS Record dated 28 April 2022 detailing the Applicant’s Mental Health Screening appointment with a psychiatrist via video link from Yongah Hill Detention Centre.
The Applicant said he did not complete the sex offenders’ program because it was cancelled due to Covid-19,[92] having first denied his parole waiting for that course to become available.[93] The Applicant also accepted that he had requested to transfer this program from Bunbury Regional Prison to Casuarina Prison, as it was too far for his visitors to travel,[94] but was of the view that this did not lose him the opportunity to complete the program.[95]
[92]Transcript p 20 [35].
[93]Transcript p 38 [45]. See also R1, G58; G61 [1]; A2, document 3 [18].
[94]Transcript p 31 [5]-[15]; R2, S14, p85.
[95]Transcript p 31 [20]-[35].
The Applicant said that prior to this, he saw his psychologist Neil Taylor, following assessment by a court psychologist, who suspected the Applicant was suffering from PTSD, anxiety, and depression.[96] The Applicant also said he took medication for thyroid disease and that he suffered from high cholesterol,[97] following a two-day hospital stay in August 2021 triggered by “massive chest pain.”[98]
[96]Transcript p 21 [15]-[25]. See R1, G17, p 109, G51 [11] and G61 [5]
[97]Transcript p 21 [30]-[40]. See R1, G58; G61 and A2, document 3 [17].
[98]R1, G61 [10], [11].
The Applicant said that child exploitation material is “disgusting,” “wrong” and “should not be allowed to happen,”[99] that he feels scared about the possibility of being removed from Australia[100] and does not want to leave Australia.[101]
[99]Transcript p 22 [25].
[100]Transcript p 22 [20]-[35].
[101]Transcript p 23 [5]-[10].
The Applicant said that if he could remain in Australia, he wouldn’t reoffend in a similar way because:[102]
I don’t want to go through this again, I don’t want to put my friends and family through this, I don’t want my kids to look down on me, I want them to look up to me, and they can’t do that after what I did….
…I’d get out and get a job, seek counsel [sic] or continue counselling with my clinical psychologist, be a better father for my kids…
… I can get a job easy, my friend [name] he owns a business where he does insurance jobs. I can work with him straightaway until I find a better job that pays good.
[102]Transcript p 22 [35]-[40].
The Applicant said he has always been employed, except for the three to four months prior to him going to prison due to stress and “bad mental health” following his conviction.[103]
[103]R1, G51 [51].
The Applicant said that for about three years prior to going to prison, he was part of his local football club, where he was a voluntary committee member and coordinator.[104]
The Applicant said that he also used to participate in Clean up Australia Day and assist the veterans on his street.[105][104]Transcript p 23 [10]-[20]. See R1, G17, p 109.
[105]R1, G51 [49].
The Applicant said that it was in October 2020,[106] when he received notice that the Cancellation Decision would not be revoked, that he learned he could not return to Australia if he was deported.[107] The Applicant said that prior to this, he was under the impression that he could travel to Portugal and return to Australia once he had sorted out his visa.[108] While he did not specifically recall it, the Applicant accepted that it was on this basis that he had told a prison officer that he would live with an aunt in Portugal if deported.[109]
The Applicant could not recall why he had said this,[110] and could not explain it.[111][106]Transcript p 39 [40].
[107]Transcript p 25, [15]-[35].
[108]Transcript p 25 [30]. See R1, G51 [17].
[109]Transcript p 25 [35]-[40]; p26 [5]-[15]. See case Conference Report dated 7 November 2019: R2, S18, p 103.
[110]Transcript p 26 [40].
[111]Transcript p 27 [45].
The Applicant was asked several questions after being taken to the following passages from a Treatment Assessment Report created by Hakea Prison on 8 October 2019, which ultimately assessed the Applicant as having a high risk of reoffending in relation to child exploitation material and a high risk of general reoffending:[112]
[112] R2, S39, pp 178 to 181. See R1, G51.
…
By his own account, he commenced viewing pornography images intermittently in 2016 which escalated to viewing CEM by the end of 2017, and that he spent up to half an hour viewing them at night but did not always masturbate to them whilst or after viewing them. [The Applicant] disclosed to the assessor that he first encountered CEM when accessing files containing images of nudist scenes that contained images of families and that he became sexually aroused to images contained 14–16-year-old girls who had developed secondary sex characteristics including breasts.
…
It is difficult to provide a clear formulation of [the Applicant’s] current offending behaviour due to his denial of some aspects of the offence details.
…
Based on the current assessment, [the Applicant] presents a high risk of general reoffending on the LS/RNR…
…
Given that Sexual Deviancy is a highlighted area of concern and [the Applicant’s] admission to sexual attraction to underage females, it is recommended that he be included in the Medium Intensity Sex Offending Treatment Program.
…
In relation to the matters at para [69] above, the Applicant said that he did not agree with his having been assessed as a high risk of general reoffending.[113] The Applicant said that he did not tell Dr Watts that he was sexually attracted to children or that he masturbated to child pornography because he did not think Dr Watts had asked him about his sexual preferences.[114] The Applicant, however did accept that given he had indicated to Dr Watts that his sexual interests had been with adult women,[115] Dr Watts would have asked him about his sexual interests.[116]
[113] See [63] above; Transcript, p 33 [45].
[114] Transcript, p 34 [5]-[15].
[115]R1, G34, p 204, [19].
[116]Transcript, p 34 [30].
When the proposition was put to him, the Applicant denied lying to Dr Watts about not having taken up treatment opportunities available to him in detention and denied knowing he would be in a worse position if Dr Watts or the Tribunal found out he had not participated in counselling.[117] Finally:[118]
MR LETTENMAIER: Perhaps if I can ask one last question. If you didn’t lie, what steps did you take at the immigration detention centre to take up the treatment opportunities that were being provided to you?
APPLICANT: ---I’m not saying I couldn’t take any steps – it is so depressing and dangerous, and I am so scared. I don’t know how to think straight. I don’t even know what time of day it is or what day of the week it is. I came in this morning thinking it was Monday, and it’s not. It’s so hard in there; it’s horrible. It’s torture; I don’t want to be there anymore. I am not lying; I swear to god that I am not.
[117]Transcript p 35 [45] to p36 [5]-[15].
[118]Transcript p 36 [20]-[30]. See also A2, document 3 [15].
The Applicant has expressed his concerns regarding his mental health should he be returned to Portugal, for example:[119]
I am concerned about my mental health (suicidal). I will be isolated, will be homeless as I don’t know anyone there and I don’t speak the language. I fear these factors will weigh heavily against my mental health.
…
It would push me to suicide if I can’t go back living with my children.
[119]R1, G17 p 110. See also R1, G51 [53]-[56] and G61 [14].
The Applicant’s family
The Tribunal heard evidence from the Applicant’s sisters W1, W3 and W4, his brother, W5 and his brother-in-law W2,[120] all of whom has earlier provided statements.[121]
[120]W2 is married to the Applicant’s sister, W4.
[121]R1, G43, G44, G45, G65, G66 and A2 documents 1, 2, 5, 18, 20 and 21.
W1
W1 said that she found out about the Applicant’s offending, which she described as a “big accident,”[122] from her older sister, W3.[123] W1 said that she has full knowledge of the Applicant’s criminal history,[124] based on what she heard from her sister W3.[125] W1 stated that she had not spoken to the Applicant about his offending because it’s very uncomfortable for her.[126]
[122]Transcript p 45 [45].
[123]Transcript p 42 [35].
[124]R1, G44 [5].
[125]A2, document 21 [2].
[126]A2, document 21 [4].
W1 said that while she was unaware that the Applicant had at times been sober when he viewed child exploitation material,[127] she continued to support him.[128]
[127]In her statement, W1 stated that “I got told he was drunk” when he viewed child exploitation material: A2, document 21 [2].
[128]Transcript p 46 [40]-[45].
W1 said that her two minor daughters love the Applicant,[129] used to be close to him,[130] and ask about him.[131] W1 said she had a relationship with the Applicant’s daughters during the first year he was in prison, however one of her sisters had a disagreement with the Applicant’s ex-partner, and the Applicant’s ex-partner has indicated she is stopping all contact until the Applicant was back home.[132] W1 said that her children and the Applicant’s children were close,[133] however, given the Applicant’s ex-partner’s wishes the children now communicate via video calls.[134]
[129]Transcript p 43 [5].
[130]A2, documents 21 [5].
[131]Transcript p 43 [10]; A2, document 21 [5].
[132]Transcript p 43 [20]; A2, document 21 [6]
[133]A1, document 21 [5].
[134]Transcript p 43 [25]-[30].
W1 said that since the Applicant has been away from his daughters, his older daughter has been having behavioural issues, she gets into trouble and has become very quiet and reclusive.[135] W1 said that there is “no way” the Applicant’s ex-partner would allow the Applicant’s daughters to move to Portugal.[136]
[135]Transcript p 43 [35]-[40]; A2, document 21 [7].
[136]Transcript p 43 [45].
W1 said if the Applicant were removed, it would be hard on her nephew, N,[137] it would “kill” her parents, who have heart issues (and her mother having depression).[138] W1 said that for herself the Applicant’s removal would be “the straw that breaks the camel’s back” as she is going through a lot with her husband’s family and doesn’t know how she would cope.[139] W1 said that the Applicant has told her that he will kill himself if he were removed from Australia.[140]
[137]Transcript p 44 [5].
[138]Transcript p 44 [10]-[20]; R1, G44 [8], [24]; A1, document 21 [8], [9].
[139]Transcript p 44 [30]-[35]; A2, document 21 [13].
[140]Transcript p 44 [20]-[25]. See also R1, G44 [20], [24] and A2, document 21 [10].
W1 said that the Applicant has aunties and a lot of cousins in Portugal, but the Applicant has not met any of them.[141] W1 said that she had been back to Portugal and had contact with her family in Portugal.[142]
[141]Transcript p 44 [40]-[45] and p 45 [5]; R1, G44 [11].
[142]Transcript p 47 [5]-[10].
W1 said she believes the Applicant will not reoffend if permitted to stay in Australia because he has said many times how ashamed he is of his offending and has had the opportunity to reoffend using his phone in detention and has not done so.[143]
[143]Transcript p 45 [10]-[15].
W1 said that if the Applicant were permitted to stay in Australia, she would support him with whatever was needed, including financial and emotional support and somewhere to stay.[144]
[144]Transcript p 45 [30]-[35]. See also R1, G44 [22].
W2
W2 said that his children ask about the Applicant all the time, especially his youngest son, N,[145] with whom the Applicant shares a close relationship.[146] W2 said that he would be affected “pretty bad” if the Applicant was removed from Australia.[147]
[145]Transcript p 50 [5].
[146]A2, document 2 [14].
[147]Transcript p 50 [10].
As to his knowledge of the Applicant’s offending, W2 said that he did not know how many images the Applicant had viewed, he had not been aware that it was over 2400 images in total,[148] the nature of the images[149], the categories in which those images were classified and the means of those categories,[150] the age range of the children in the images,[151] he never asked the Applicant about his offending and the Applicant never spoke to him about it.[152]
[148]Transcript p 51 [35].
[149]Transcript p 53 [30]-[35].
[150]Transcript p 54 [30]-[35].
[151]Transcript p 54 [20]-[25].
[152]Transcript p 50 [35]-[40]; p 51 [25].
When asked, W2 said that the Applicant was “100 per cent” not sexually attracted to children,[153] and if he was, it would have to change his opinion of the Applicant,[154] as would knowing the categories in which the images fell.[155] W2 said that, in any event, he continues to support the Applicant.[156]
[153]Transcript p 51 [45].
[154]Transcript p 52 [5].
[155]Transcript p 54 [30].
[156]Transcript p 55 [5].
W3
W3 said that she knows the Applicant has been caught with looking at pictures of children, in the terms used by the sentencing judge,[157] which she found out about from her sister, W4, who in turn found out after sourcing the court transcript.[158]
[157]Transcript p 74 [35]-[40].
[158]Transcript p 74 [30].
W3 said that if the Applicant were removed, it would impact the Applicant older daughter more than the younger one, the older daughter being sad, not the same and missing her dad.[159] W3 said her nephew N would be impacted if the Applicant were removed, as the Applicant is quite close with him and to maintain their relationship via FaceTime would “definitely not” be enough.[160] W3 said she is most worried about her parents, who she thinks would have heart attacks if the Applicant were removed.[161]
[159]Transcript p 75 [35]-[40].
[160]Transcript p 76 [10]-[20]. See also R1, G66 [3] and A2, document 20 [9].
[161]Transcript p 76 [20]-[30]. See also R1, G66 [4] and A2, document 20 [11].
W3 said that the Applicant has told her that he will kill himself if he is removed from Australia and she believes he will do so.[162] W3 said she doesn’t think she could handle losing the Applicant.[163] W3 said she truly believes the Applicant will not reoffend[164] because he is going to continue with counselling[165] and that he is remorseful.[166] W3 said that she will give the Applicant 100 per cent support if he could remain in Australia.[167]
[162]Transcript p 75 [40]-[45]. See also R1, G66 [9], [15] and A2, document 20 [7].
[163]Transcript p 66 [12].
[164]Transcript p 77 [15]. See also R1, G66 [13].
[165]Transcript p 78 [5].
[166]Transcript p 77 [40]. See R1, G43, p 234, G66 [12] and A2, document 20 [13].
[167]Transcript p 84 [30]-[35]. See also A2, document 20, [10].
As to their family in Portugal, W3 said:[168]
So we’ve got three aunties. One auntie had a stroke so she’s learning to live on her own, learning to talk and walk again, so she won’t be any support to [the Applicant]. My other auntie, she’s still mourning the loss of a son. She has got a daughter who is going through cancer who over there - because they’re poor, they’ve got no money. Like, they have got no money for treatment so my mum has been helping them to pay for her cancer treatment. So there’s no way they can support my brother. And then my auntie - my other auntie doesn’t even speak English so they won’t support - they can’t. Like, it would just be impossible.
…so my auntie that’s got the daughter with the cancer, she’s got kids but [the Applicant] doesn’t know them. Like, it was only until recently, like, that he’s like, “I’ve got cousins.”
[168]Transcript p76 [35]-[45].
When asked, W3 stated she knew the Applicant had told prison officers that he was going to stay with an aunty.[169] W3 accepted that this was not stated in the Applicant’s personal circumstances form.[170] W3 said that she had understood that when the Applicant’s visa was first cancelled, he would be able to return to Portugal, get another visa and come straight back.[171]
[169]Transcript p78 [40].
[170]Transcript p 79 [5].
[171]Transcript p 79 [45] and p80 [5].
W4
W4 said that she knew what the Applicant had been convicted of and that he had viewed some “really inappropriate images.”[172]
[172]Transcript p 81 [20].
W4 said that her son N, who has ASD, has a very close relationship with the Applicant, struggles with being unable to see him[173] and is upset after speaking with him on the phone, which is stressful for her.[174]
[173]Transcript p 82 [5]-[15]. See R1, G65 [10].
[174]Transcript p 82 [15]-[35]. See R1, G45 [5], [12].
W4 said she has not seen the Applicant’s daughters in over a year, when prior to the Applicant being in prison she and her family would see them all the time.[175] W4 said that the Applicant’s older daughter is upset all the time, moody and distant from being away from her father.[176]
[175]Transcript p 82 [40]-[45].
[176]Transcript p 83 [10]. See R1, G65 [9].
W4 said that if the Applicant were removed, it would be “in a body bag” and she believes she would also lose her parents.[177]
[177]Transcript p 83 [25]-[40].
W4 said that there is “no way” her brother would reoffend if he could remain in Australia[178] and she and all of her siblings would give him “every support,”[179] including financial support.[180]
[178]Transcript p 84 [5]. See R1, G45 [16] and G65 [11]-[13].
[179]Transcript p 84 [10]-[15]. See R1, G45 [20].
[180]Transcript p 84 [30].
W5
W5 said that he understands the Applicant was convicted of viewing child pornography,[181] which came as a complete shock to him[182] and that he had read the sentencing transcript.[183] W5 said that the Applicant is very remorseful and that his eyes have been opened.[184]
[181]Transcript p 85 [25]-[30]. See A2, document 18 [2].
[182]A2, document 5 [3].
[183]A2, document 18 [2].
[184]A2, document 18 [14].
W5 said that his family, (parents, siblings, nieces and nephews, especially N)[185] would be quite substantially affected if the Applicant were unable to remain in Australia,[186] that he would lose both of his parents,[187] their health already having deteriorated.[188] W5 said that the Applicant’s daughters were struggling, especially the older daughter, whose attitude was a lot different and who was “more angry in a way,” and playing up a lot.[189]
[185]Transcript p 86 [15]-[30]. See A2, document 5 [4], [12] and document 18 [5], [8].
[186]Transcript p 85 [40].
[187]Transcript p 85 [40]-[45].
[188]Transcript p 86 [5]-[10].
[189]Transcript p 86 [35]-[40]. See also A2, document 5 [4].
W5 said that if the Applicant could not remain in Australia, he will commit suicide.[190]
W5 said if the Applicant could remain in Australia, he believes the Applicant is 100 per cent not likely to reoffend and if the Applicant he would 100 per cent provide him with support,[191] including financial support for the cost of any treatment required.[192] W5 said that if the Applicant were removed, he does not know how he would cope[193] and a part of him would be gone.[194][190]Transcript p 87 [15]. A2, document 5 [11].
[191]Transcript p 87 [25]-[35]. A2, document 5 [9] and document 18 [9].
[192]Transcript p 88 [10]. A2 document 5 [13].
[193]A2, document 3 [12].
[194]A2, document 18 [11].
W5 said that he does not believe their family members in Portugal would support the Applicant if he were removed as they are going through their own tough time.[195]
[195]A2, document 18 [6].
Dr Watts, Psychologist
In his report dated 27 April 2020,[196] Dr Watts gave the following opinion regarding the Applicant’s offending:
[196]R1, G34, including letter of instructions from Estrin Saul dated 16 April 2020.
19.[The Applicant] indicated that his sexual interests have been with adult women…
…
29.[The Applicant] is quite appalled by his conduct, is remorseful that it occurred, and continues to seek its understanding…[197]
30.There is no doubt that [the Applicant] is quite remorseful of this situation, both for himself, but he also understood the impact on children, and is quite horrified at the thought that he was looking at other children when he has children of his own in that age range.
31.[The Applicant] is an interesting mix with regards to insight. I note that the initial psychologist said that he had a lack of insight. As explained earlier, he has simply not come from a psychologically sophisticated world and had no idea of the emotional connections.
…
34.[The Applicant’s] history is not one of general offending. Other than the possibility of driving related offences, [the Applicant] does not show any pattern of offending behaviour, and his attitude on the PAI was below average for offender beliefs.
35.There is no evidence that [the Applicant] has offended against a real child.[198] There is no evidence that [the Applicant] has any desire to offend against a real child. I would note that the literature on child internet pornography offences, especially the work of Michael Seto, a Canadian researcher, should suggest that there is a fairly low likelihood of recidivism against children.
36.Using the Risk for Sexual Violence Protocol (RSVP), [the Applicant] did not show strong features of risk.
37.The only potential area of risk would be reoffending by looking at child pornography. [The Applicant] had quite a significant consequence in regards to being caught. It is also my experience, for a number of men, they come to realise the dysfunction of their behaviour through being caught. I would see him as being relatively low risk of reoffending, especially is he completes a sex offender program. The only risk factor would be if life goes badly, that the trauma symptoms escalate, and he seeks to lower the emotional arousal through addiction patterns. Having said that, I consider it unlikely that it would involve a real child.
38.It is evident from the Sentencing Remarks that the Judge sentenced [the Applicant] according to the need for community deterrent [sic] as a primary principle. There is not a lot of discussion of risks, so it is difficult to know the level of risk the Court made the sentence on. However, in my opinion, the child internet pornography was being used as a way of escaping negative trauma thoughts, along with excessive alcohol use and workaholic tendency…While I consider [the Applicant] to be low risk of reoffending in the child porn area, if he continues individual therapy and completes a sex offender court, the risk more be a more confidently low. The only likelihood of relapse would be excessive alcohol abuse.
[197]See also Transcript p 62 [5].
[198]At hearing, the Respondent’s counsel clarified with Dr Watts that the term ‘real child’ referred to offending against a child in real-time, a “contact offence”; see Transcript p 64.
Dr Watts’ opinion in his later report was that in both his initial and review assessments of the Applicant, is that clinically, the Applicant is of relatively low risk of reoffending.[199]
[199]A2, document 7, p 4 of report, [22].
At hearing, Dr Watts added:
(a)Based on psychological testing and interview, he considers the Applicant has PTSD, depression, major depression, and anxiety.[200]
(b)The Applicant’s risk of reoffending is, in his view, relatively low, and would be lower still if the Applicant was able to complete the sex offender treatment course and continue to address his trauma.[201] No one can ever be at “no risk” of reoffending.[202]
(c)While the Applicant has become interested in child exploitation material, he is not someone who has a paedophilic interest,[203] which is the same as a sexual attraction to children.[204]
(d)The Applicant’s failure to complete a sex offending course does not change his opinions on risk.[205]
(e)The Static-99R assessment tool is not a specific tool for child exploitation material, rather it is for sex offending in general,[206] (as is the LS/RNR for general offending, not sex offending).[207] Hence his caution in relying on the Static-99R, even though it would if anything probably overstate the risk, because the child exploitation material would be seen as “less strong”.[208] Psychologically, there is no single standard clinical point of view in looking at risk of reoffending.[209]
(f)If someone has a clear interest in, and is sexually aroused by children, it increases the risk that they will reoffend over child exploitation material.[210]
(g)The Applicant did not tell him that he was sexually attracted to teenage children, rather, he said the opposite.[211]
(h)He could not be clear on whether the Applicant had told him that he masturbated to images of teenage children.[212] If the Applicant had told him so, it would, in Dr Watts’ opinion, marginally increase the degree of his risk of reoffending, not the nature.[213]
(i)The Applicant did not tell him that he’d asked not to do the sex offender treatment program in Bunbury because to was too far from family.[214] If the Applicant had done so, it does raise some concern about whether he would do that sort of course when released.[215] However, Dr Watts would say that he sees the Applicant as a relatively low risk of reoffending irrespective of treatment, that the risk could escalate without treatment, but with treatment the Applicant could be an even lower risk.[216]
[200]Transcript p 60 [20].
[201]Transcript p 61 [25].
[202]Transcript p 61 [35].
[203]Transcript p 62 [25].
[204]Transcript p 62 [40].
[205]Transcript p 63 [10].
[206]Transcript p 66 [30].
[207]Transcript p 67 [5], p 72 [35].
[208]Transcript p 66 [35]-[40].
[209]Transcript p 69 [25].
[210]Transcript p 67 [20]-[30].
[211]Transcript p 67 [35]-[40].
[212]Transcript p 67 [45], p68 [5].
[213]Transcript p 68 [40]-[45].
[214]Transcript p 70 [30].
[215]Transcript p 70 [40].
[216]Transcript p 71 [35].
discretion to refuse to grant the visa
Having determined the Applicant does not pass the “character test,” the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.[217]
[217]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
The Applicant contends that on balance, the Tribunal ought to weigh the various considerations in favour of revocation of the Cancellation Decision, as follows:
(a)The nature and seriousness of the Applicant’s offending must weigh against revocation of the Cancellation Decision; however, it does not outweigh his low risk of reoffending, the best interests of his minor children, his links to the Australian community (which weigh very much in favour of revocation)[218] or the extent of impediments if removed (which weigh significantly in favour of revocation).[219]
(b)The best interests of the Applicant’s minor children and his minor nieces and nephews, the extent of impediments if removed and the strength, nature, and duration of the Applicant’s ties to Australia weigh in favour of revocation.[220]
(c)The most significant weight in favour of revocation should attach to the best interests of minor children consideration,[221] which strongly favours revocation of the Cancellation Decision and outweighs all other considerations.[222] The Applicant sought to emphasise that, primarily, the impact on his children of not revoking the Cancellation Decision would be severe, long-lasting, detrimental, and devastating.[223]
(d)The expectations of the Australian community weighs against revocation[224], however, should be given less weight in circumstances where the Applicant’s risk of reoffending is low, where the best interests of his minor children weigh strongly in favour of revocation, the difficulties he would experience if returned to Portugal and the impact non-revocation would have on his family in Australia.[225]
[218]A1 [162].
[219]A1 [51], [177].
[220]A1 [32].
[221]Transcript p 11 [5].
[222]A1 [137].
[223]Transcript p 9 [30], p 94 [30].
[224]A1 [145].
[225]A1 [146].
The Respondent acknowledges the matter is “very finely balanced”[226] and is of the view, however, that:
(a)While the best interests of the Applicant’s minor children and the extent of impediments if removed weigh in favour of revocation of the Cancellation Decision;[227]
(b)The expectations of the Australian community and the protection of the Australian community weigh heavily against revocation and outweigh the considerations that fall in the Applicant’s favour.[228]
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
[226]Transcript p 12 [10].
[227]Transcript p12 [10], [35].
[228]Transcript p 12 [15]; R4 [63].
Paragraph 8.1(1) of Direction No. 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No. 90 then provides:
(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 of Direction No. 90)
Paragraph 8.1.1(1) of Direction No. 90 provides:[229]
[229]See also Direction No. 90 para 8.1(2)(a).
(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) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
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;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(Emphasis added).
In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the conviction imposed.
The Applicant’s offending conduct is briefly detailed above. The facts of the Applicant’s offending are set out in the sentencing remarks of Scott DCJ on 15 August 2019 as follows:[230]
[230]R1, G7.
In this case, there were 2,431 CEM images classified as 2,409 category 1, 11 category 2, four category 4 and seven category 5…
…
It was over a relatively short period of time that your phone was used for purposes that included the possession of child exploitation material in respect to which there were a significant number of items which were recovered.
…
You were first exposed to pornography in your late teens. You began to access that material from then on. You claimed an interest for mainstream adult pornography and an interest in nudist scenes.
You’ve been a prolific user of pornography but deny deliberately searching for CEM and claim that the majority of the images of CEM were those related to nudist sites whilst you could not explain the presence of the more serious CEM images.
That seems to me not to be a truthful account and having regard to the submissions made by [the Applicant’s Counsel] and the steps taken by the forensic police personnel, it’s clear that you were involved in viewing CEM.
It may well be that you haven’t recorded it into folders and retained it but you’ve clearly viewed a considerable amount of child exploitation material, there being nearly 2,500 images within a relatively short period of time.
You told the psychologist that you claim to have no recall of viewing or using the images and admitted at times you were intoxicated when using pornography and have accessed images but had no memory of doing so.
I don’t accept that and that’s consistent with what [the Applicant’s Counsel] says.
…
I’m satisfied that you have accessed child exploitation material images. You’ve viewed them and the fact that you haven’t recorded them or retained them is a factor that might go in your favour.
But it’s the viewing them and accessing them which is the gravamen of your offending. The majority of the images were not related to nudist sites and depicted images of prepubescent children from the ages of four to 12.
I’ve had a look at a sample of the images…Even the images of the young girls in sexually posed positions were bad enough let alone some of the more degrading material.
…
The psychologist, in assessing you, observed that you attempted to present in a well-adjusted and favourable manner and considered it likely that you had concealed some aspects of your interpersonal, emotional and psychologist [sic] difficulties. They are matters which no doubt prompted the psychologist to observe that your risk of reoffending was high.
…
I have no doubt that you are remorseful. And no doubt that your remorse is also related to the circumstances in which you find yourself, and also the remorse that you feel in respect to the impact on your family.
…
And the rehabilitation, I would have thought, would take place at a much earlier time, rather than just at a time that is commensurate with your sentencing…
…
…This is a serious offence. It’s often said that it’s not a victimless offence. The children are the victims. And whilst there is a demand for this sort of material the child abuse will continue…
…
Children who are participants in this sort of material are being violated. They are being degraded. And they are being violated and degraded in order to create a market for child exploitation material. And as the Crown quite correctly says, child victims are powerless to remove images of this abuse from the internet.
…the images are in electronic material and they stay there. And they – there must be considerable damage suffered by these children as they grow older, because of their anxiousness and awareness that the images somewhere, are being permanently available.
The proliferation of child exploitation material available to the community is staggering.
…
(Emphasis added).
The Applicant contended that the nature and seriousness of the Applicant’s conduct weighs against revocation, for the following reasons:[231]
[231]A1, [45]-[51].
(a)The Applicant’s child exploitation material offence was undeniably serious, as it involved him accessing a significant number of child exploitation material images over a four-month period.
(b)The Applicant has not caused a person to enter into a forced marriage nor committed any offences against vulnerable members of the community,[232] or government representatives/officials.
(c)The Applicant has not committed any offences while in prison or immigration detention.
(d)As to para 8.1.1(c) of Direction No. 90, the sentencing Judge sentenced the Applicant to 14 months’ imprisonment (with eligibility for parole after serving half the sentence) from a maximum available penalty of seven years’ imprisonment, a 20 per cent sentence reduction having been granted for the Applicant’s early guilty plea and cooperation with police. Without minimising the seriousness of the offence, the Applicant’s sentence could have been much longer, and the sentence issued demonstrates the Applicant’s offending was at the lower end of the scale of seriousness.
(e)Noting the Applicant’s prior offending history, there is no “trend” of increasing seriousness or effect of repeat offending for the Tribunal to consider.
(f)Before the Cancellation Decision was received, the Applicant has not previously received a formal warning about the consequences of offending of his migration status.
(g)There is no evidence that the Applicant has provided false or misleading information to the Department or the Tribunal.
(h)While serious, the gravity of the Applicant’s offence is mitigated by the factors such as the Applicant’s lack of prior relevant criminal history, genuine remorse and actions taken since committing the offence.
(i)While the nature and seriousness of the Applicant conduct must weigh against revocation of the Cancellation Decision, it does not outweigh the Applicant’s risk of reoffending, the best interests of his children, his links to the Australian community of the extent of impediments he will face if removed from Australia.
[232]The Tribunal notes that it considers children to be vulnerable members of the community and hence the Applicant has so committed an offence.
The Respondent contended that the nature and seriousness of the Applicant’s conduct should be viewed as very serious and weighs heavily against revocation, because:[233]
[233]R4 [16]-[27].
(a)Possessing child exploitation material is a sexual crime and a crime committed against the vulnerable (paras 8.1.1(1)(a) and 8.1.1(1)(b) of Direction No. 90).
(b)It is not a victimless crime and if affects real children who are degraded and violated to create a market for child exploitation material.[234]
[234]Citing Metcalfe and Minister for Immigration [2021] AATA 3498 (28 September 2021) (Metcalfe) at [70] and the decision cited there and R1, G7 p 31.
(c)The images included ‘very young girls in suggestive poses’, girls from ages four to twelve, pre-pubescent females being penetrated by adult males and other child abuse material.[235] It was also a significant volume of material.[236] This demonstrates that the Applicant possessed CEM across the full spectrum which includes material in the same category that the Tribunal has previously, and quite rightly, described as horrific, gruesome, and sickening.[237]
[235]See R2, S12 p 68.
[236]cf Metcalfe at [76].
[237]Citing Metcalfe at [76].
(d)Notwithstanding that the Respondent accepts that maximum penalty for possessing child exploitation material is seven years, the Applicant’s offending is not, as the Applicant contends, on the lower end of the spectrum of seriousness. This is because:
(i)The volume and nature of the child exploitation material was serious, and not at the lower end of the spectrum.[238]
[238]R1, G7 pp 4-6.
(ii)The Court imposed an immediate term of imprisonment on a first-time offender with positive antecedents. This reflects the seriousness of the Applicant’s offending and weighs heavily against revocation.[239]
[239]R1, G7 p 63 and para 8.1.1(c) of Direction No. 90.
(iii)The sentence imposed included a 20 per cent discount for an early plea,[240] which should be considered when weighing up the sentence imposed;
[240]Pursuant to s9AA of the Sentencing Act 1995 (WA).
(iv)The Court did not suspend all or part of the sentence, as sought by the Applicant.
(e)The Applicant’s contention that weight should be given to his remorse, there being no trend in offending, his having not received a formal warning and having not given false or misleading information to the Department are factors of limited benefit to him, because:
(i)The Applicant’s offending was depraved.
(ii)The Applicant’s offending occurred over a period of nearly four months, it was not a one-off or isolated incident. It is of little moment that viewing and possessing child exploitation material over that period only resulted in one offence.[241]
[241]Para 8.1.1(d) of Direction No. 90.
(iii)The fact that someone stops offending after the police investigate them, and they have been charged is not unsurprising, and not a matter that should weigh in their favour.[242]
[242]In reply, the Applicant submitted that the fact that the Applicant was able to stop offending due to his awareness of the consequences if he did reoffend is highly relevant to the Tribunal’s assessment of whether he is likely to reoffend if released into the Australian community. The Applicant submitted further that if released, he will be in the Australian community with the awareness that if he re offended he would go to prison, be separated permanently from his daughters, and be permanently banned from Australia. The Applicant submitted that his awareness of these consequences was also enough to prevent him from reoffending between March 2018 and August 2019: R3 [3]-[6].
(iv)The Applicant contends he has not provided false or misleading information to the Department; however, he did not disclose his convictions from 1997.[243] Additionally, the Applicant has intimated he did not know any family member in Portugal, however, he told prison officers he had an aunt in Portugal whom he would stay with. It was not until he received his notice of revocation that he represented he did not know them.[244]
[243]R2, S1 and S2.
[244]R2, S18, p103.
(v)The Applicant’s remorse must be considered in light of the following:
a. When initially interviewed, the Applicant denied having child exploitation material on his phone but did not admit to, and expressly denied, viewing child exploitation material.[245]
b. On 18 October 2019 (after being sentenced) the Applicant represented to the Department of Corrections that the category 4 and 5 images may have been ‘planted’ on his device by police.[246]
c. While the Respondent acknowledges the Applicant plead guilty at an early opportunity, the Applicant denied deliberately looking for child exploitation material.[247]
d. The Applicant initially told the Department he had ‘no recollection’ of viewing the child exploitation material.[248]
e. The Applicant continues to emphasis the distinction between viewing and downloading.[249]
(vi)The Respondent contends that while the Applicant may be remorseful, these matters at para [112(e)(v)] above suggest his remorse is contingent on the consequences his actions have had for himself and his family and that he has continually downplayed the seriousness of is offending and denied the most serious aspect of it despite pleading guilty.
(vii)Finally, some weight should be given to the Applicant’s past driving record, his damage and disorderly convictions, and the assault on his mother. The Applicant cannot argue that he has an otherwise good record of compliance with the law in Australia. Further, traffic offences, particularly those involving driving without a licence, are not minor–they are serious and demonstrate a disregard for Australian laws and the safety of the community.[250] It is notable that the Applicant admitted to police that he was consciously breaking traffic laws.[251] This factor weighs somewhat against revocation.
[245]R2, S18 p 31, 36.
[246]R2, S38, p170 and S39, 178.
[247]R1, G7; G51, p 249 [2], R2, S18, p100.
[248]R1, G9 p 67.
[249]Referring to A2, document 3 [2]. In reply, the Applicant noted that the Respondent accepted that the “gravamen of the Applicant’s offending was viewing child exploitation material and they were downloaded as ‘artefacts’ or data caches on his phone (A3 [7], referring to R4 [23]). The Applicant submitted that therefore, it is unclear, having accepted there is a distinction between viewing and downloading child exploitation material, why this reduces the weight that should be given to the Applicant’s remorse (A3 [7]).
[250]Citing Ahmed and Minister for Immigration [2018] AATA 4458.
[251]R2, S5 p 10; S7, p 12.
Neither party made any submission on this consideration and hence this factor should be given neutral weight.
Extent of impediments if removed (para 9.2 of Direction No. 90)
Paragraph 9.2 of Direction No. 90 states:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
(Emphasis added).
In relation to the extent of impediments if removed to Portugal, the Applicant submitted this factor weighs very much in favour of revocation of the Cancellation Decision, because:[398]
[398]A1 [149]-[162].
(a)The Applicant suffers from diagnosed PTSD, severe anxiety, depression, thyroid disease, mild coronary heart disease and hypercholesterolaemia, requiring a significant amount of treatment. The Applicant’s family and friends are committed to supporting him with his mental and physical health and have grave concerns if he were to be removed.
(b)The Applicant also has concerns regarding his inability to read, write or speak Portuguese, how he would be able to obtain a job or otherwise survive financially and if he would be eligible for medical support. This places the Applicant at risk of significant social and economic disadvantage.
(c)The applicant has no social ties to Portugal and is likely to face significant cultural barriers if returned.
(d)
The Applicant stated that if he left Australia it would be “in a body bag”.[399]
Dr Watts identified the Applicant as a genuine and significant suicide risk.
The Applicant’s family are also concerned that the Applicant will commit suicide if he cannot remain in Australia.[400]
(e)The Applicant’s mental health will be best treated by a person who speaks and understands English well, as well as the cultural background the Applicant has grown up with. It is very unlikely that an Australian psychologist will be readily available in Portugal.
(f)Statements from the Applicant’s family and friends support the Applicant’s concerns regarding the hardships he would face if removed from Australia, including adjusting to a new life and culture and with the added difficulties of the language barrier and need for continued treatment for his physical and psychological health conditions.
[399]See R1, G61 p 308 [13]-[14].
[400]The Tribunal notes the evidence from the Applicant’s numerous family members in this regard.
The Respondent’s position with respect to the impediments to the Applicant if he were removed is that this consideration may be given some weight in favour of revocation, for the following reasons:[401]
(a)The Respondent accepts that the Applicant will face some practical, financial and emotional hardship upon a return to Portugal, and impediments to establishing himself and maintaining basic living standards in Portugal. The Applicant may also find that a return to Portugal may cause his health to further deteriorate and further exacerbate the hardship he will face on return.
(b)In relation to the Applicant’s mental health conditions, Portugal does have a public health system which includes mental health facilities.
(c)Whilst there are some cultural differences, notably language, there are some similarities between Australia and Portugal, both being western democratic countries and the Applicant will have some familiarity in that regard.
(d)Limited weight should be placed on the Applicant’s contention that he has no social ties to Portugal in circumstances where the Applicant has three aunts and 14 cousins in Portugal and where prior to his being notified of the Cancellation Decision he advised a prison officer that he would stay with one of his aunts in Portugal.
[401]R4 [52]-[57].
Having considered the available evidence and the parties’ submissions, the Tribunal considers that the Applicant would likely face significant emotional, social and financial hardship at the prospect of returning to a country where none of his family members that he does know and numerous family members that he does not know, at the present time, reside.
The Tribunal has considered the Applicant’s expressions, his family’s related concerns and Dr Watts’ comments regarding the Applicant’s suicide risk if he is removed. The Tribunal accepts, that at the present time, and being faced with the prospect of removal and of not seeing his children and family again, these concerns are genuinely held.
The Tribunal has considered the Applicant does not speak or understand Portuguese and has not returned to Portugal since he left when he was 8 years old. The Tribunal accepts that this may present difficulties in communication and in turn difficulties in re-establishing himself financially and resettling socially. The Tribunal has also considered the Applicant’s multiple health conditions, which while there may be a public avenue for treatment in Portugal, the language barrier may present some initial difficulties with establishing treatment.
The Tribunal also considers that the identified difficulties the Applicant would face, although longer than what could be called temporary, would not be permanent.
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weights moderately in favour of revocation.
Impact on victims (para 9.3 of Direction No. 90)
Paragraph 9.3 of Direction No. 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The parties’ submissions on this matter are limited to:
(a)The Respondent’s initial reference to there being no evidence from the victims of the Applicant’s offending.[402]
(b)Then, the provision of a statement from the Applicant’s mother, which includes her evidence that if the Applicant were removed that she would be heartbroken, she does not think she would survive, and that she dearly loves her son.[403]
(c)Then, the Respondent’s updated submission that to the extent that this consideration related to the Applicant’s mother, her being the victim of assault at the hands of the Applicant when he was a juvenile, that the Respondent does not press the point and maintains, rather, that there is no available evidence in relation to the child victims of the Applicant’s offending.
(d)In turn, the Applicant submitted that some weight should be placed on this factor in favour of revocation.
[402]R4 [59].
[403]A2, document 19.
The Tribunal considers that some weight should be placed on the Applicant’s mother’s evidence of how a s 501CA decision would impact her, given she was a victim of his juvenile offending and that this factor weighs slightly in favour or revocation.
For completeness, the Tribunal notes there is no evidence in relation from any of the child victims of the Applicant’s offending.
Links to the Australian community (para 9.4 of Direction No. 90)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
Paragraph 9.4.1 of Direction No. 90 states:
(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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant submitted that the strength, nature and duration of ties consideration should weigh heavily[404] and significantly[405] in favour of revoking the Cancellation Decision. The Applicant relied on the following in making this submission:[406]
(a)The Applicant’s family, including his parents, children, ex-partner, siblings and nieces and nephews is an either an Australian citizen or permanent resident.
(b)The Applicant’s parents each suffer from several health problems, which are of increasing concern due to the distress caused by the Applicant’s potential removal from Australia.
(c)Many of the Applicants family members, some of their partners and the Applicant’s friends have provided statements indicating how they will be impacted if the Applicant is removed.
(d)In WSYT, Deputy President Boyle found that 35 years was a long time for the Applicant in that case to reside in Australia (prior to offending) and weighed this is favour of revocation. Deputy President Boyle also looked favourably upon the substantial ties that WSYT held with his family and that he had positive community contribution including employment and community organisations.
(e)Similarly, the Applicant has spent a substantial amount of time in Australia before he committed the child exploitation material offending three decades after he arrived, made many positive contributions through his football club, his employment and by volunteering time in the community
(f)However, the Applicant in WSYT arrived in Australia when he was 41 years of age. The Applicant arrived when he was 8 years of age. Therefore, it is open to the Tribunal to place even more weight on this consideration than what was applied in WSYT.
[404]A10 [174], regarding length of time in Australia.
[405]A1 [168], [177] regarding family in Australia and positive community contributions.
[406]A1 [163]-[177].
The Respondent submitted that while it accepts the Applicant’s ties to Australia weigh in favour of the cancellation decision, given that:[407]
(a)Support letters from the Applicant’s friends do not disclose knowledge of his offending and should be given less weight;[408] and
(b)Family members who did disclose they are aware of the Applicant’s criminal history do so in vague and ambiguous terms and it is unclear whether they are aware of the precise nature of the Applicant’s offences,[409]
this consideration should be found to play a neutral role in the exercise of the Tribunal’s discretion.
[407] R4 [61], [62].
[408] Referring to R1, G42, p233 and G48, p245.
[409] For example, whether the family members know the Applicant viewed images from Category 5 of the ANVIL scheme.
The Applicant has provided an extensive body of lay evidence regarding his family and social ties and his community involvement, in support of his case. This evidence focuses on his relationships with family members including his mother, his siblings, and friends and on his community contributions over the years.[410]
[410] Referred to in [39], [40], [41] above.
The Tribunal does not seek to nor consider it necessary to summarise the entirety of the evidence here and notes it has considered the various available letters and statements[411] in the context of this consideration. In particular, the Tribunal has considered:
[411] See fn 416.
(a)The Applicant’s support for his local football club and his past fundraising endeavours.
(b)The Applicant’s volunteering of his time to assist members of the community.
(c)The Applicant’s love for his parents, siblings, children, nieces, and nephews.
(d)The Applicant’s having raised a family with his then partner in the 13 years prior to his offending in 2019.
(e)The fact that the Applicant’s children would be unable to return with him if he were removed and his ex-partner would be unwilling and unable to bring them to Portugal to visit him.
(f)Attestations from the Applicant’s family and medical professions as to the poor state of the Applicant’s physical and mental health.
(g)The devastating impact that removal would have on the Applicant’s family and the Applicant’s parents, particularly his children, his mother, and his siblings W3, W4 and W5. The Tribunal understands that all the Applicant’s family members have a right to remain in Australia indefinitely.
(g)The Applicant’s offending conduct began in 1994 (six years after he arrived in Australia as a young child) and continued through to 1998. Then the Applicant was charged with possession of child exploitation material in 2019, after a gap in offending of over 20 years and after residing in Australia for over 30 years.
(h)While the Applicant’s family members appear to have an appreciation of the nature of the Applicant’s offending and the related charge and conviction, 1) there are differing degrees to which the full extent of the offending is known, some family members having had access to the sentencing transcript and others either have not or it is unknown and 2) once those details were offered by the Respondent at hearing, some family members indicated it would change their opinion of the Applicant, however they would continue to lend their full support regardless.
Having considered these matters in the context of this consideration, the Tribunal is satisfied that:
(a)the Applicant’s ties to Australia, particularly his familial ties, are strong and have endured over a lengthy period;
(b)the greatest impact to be had by the Applicant’s removal, should it occur, would be felt by the Applicant’s children; and
(c)The Applicant’s family’s support continues:
(i)whether or not they had full knowledge of his offending at the time or have come to learn of this in more recent times, including at the hearing; and
(ii) whether or not this knowledge changes their opinion of him as a person.
As such, the Tribunal finds it uncontroversial that the strength, nature, and duration of the Applicant’s ties consideration weighs in favour of revocation of the Cancellation Decision. As to weight, however, given the impact that a decision not to revoke the Cancellation Decision would have on the Applicant’s children in particular, this consideration weighs strongly in favour of revocation.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
Paragraph 9.4.2 of Direction No. 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In relation to the impact on Australian business interests consideration, the Applicant submitted:[412]
It is conceded that the non-revocation of the Applicant’s visa is unlikely to impact on an Australia business interest, compromise the delivery of a major project or the delivery of an important service in Australia.
[412]A1 [41].
The Tribunal is satisfied that this factor is not relevant in the present case and should be given neutral weight.
conclusion - the weighing exercise
As to how to apply the primary and other considerations in Direction No. 90, the Tribunal in guided by Deputy President Boyle in Wightman:
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(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 other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
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 Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted).
The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 90, in particular paragraph 5.2(5) of Direction No. 90, which in turn refers to paragraph 8.4(2) of Direction No. 90.
As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 90), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [106]-[154] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(b)the “unacceptably serious” nature of the harm and the unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs very strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 90), as indicated at paras [155]-[159] the family violence consideration weighs slightly against revocation.
With respect to the third primary consideration, the best interests of minor children in Australia (para 8.3 of Direction No. 90), the Tribunal has found that for the reasons set out in paras [160]-[187] above, the best interests of the Applicant’s minor children weigh strongly in favour of revocation of the Cancellation Decision and the best interests of the Applicant’s minor nieces and nephews weigh moderately in favour of revocation.
The fourth primary consideration, the expectations of the Australian community (para 8.4 of Direction No. 90), as it must and as is the “norm,” weighs very strongly against revocation of the Cancellation Decision. For the reasons set out at paras [188]-[200] above, significant weight should be given to this primary consideration.
In relation to the “other considerations” identified in para 9 of Direction No. 90:
(a)The Tribunal is not satisfied that the Applicant’s current evidence enlivens Australia’s non-refoulement obligations, therefore considers this consideration carries neutral weight (see paras [202]-[203]) (para 9.1 of Direction No. 90).
(b)The extent of impediments if the Applicant were removed from Australia weighs moderately in favour of revocation of the Cancellation Decision (see paras [204]–[211] above) (para 9.2 of Direction No. 90).
(c)The impact on victims consideration weighs very slightly in favour of revocation (see paras [212]-[215] above) (para 9.3 of Direction No. 90).
(d)The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i)the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh strongly in favour of revocation of the Cancellation Decision (see paras [217]–[223]); and
(ii) the impact on Australian business interests (para 9.4.2 of Direction No. 90), has no relevance to the present matter and hence is a neutral consideration (see paras [224]-[226]);
indicate that this consideration overall weighs strongly in favour of revocation of the Cancellation Decision.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, greater than those weighing against revocation.
There is factual material, which is strongly in the Applicant’s favour, in relation to the best interests of his minor children and the Applicant’s links to the Australian community.
There is material regarding the extent of impediments if removed consideration that the Tribunal considers weighs moderately in favour of revocation.
There is also material regarding the impact on victims consideration that the Tribunal considers weighs very slightly in favour of revocation.
Despite the number of considerations weighing in the Applicant’s favour, the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a)the unacceptable risk of harm to the Australian community; and
(b)the seriousness of the Tribunal’s concerns regarding there being any risk at all the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) and the expectations of the Australian community consideration, are two primary considerations which the Tribunal considers weigh very strongly against revocation of the cancellation Decision–to the extent that they outweigh any and all considerations weighing in the Applicant’s favour.
The Tribunal considers this case to be very finely balanced in circumstances where it has also found that the bests interests of the Applicant’s minor children and the strength, nature and duration of ties weigh strongly in favour of revocation. However, given the significance of the weight placed on the two primary considerations weighing strongly against revocation, this is whether the Tribunal has found the balance lies.
For the Tribunal to adopt the Applicant’s submission that the best interests of minor children consideration favourably outweighs all other considerations would be to ignore the significance of the very strong weight the Tribunal firmly attaches to the protection of the Australian community and the expectations of the Australian community considerations.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 21 April 2022, not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 242 (two-hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
.............[Sgd].......................................................
Associate
Dated: 26 August 2022
Date of hearing: 09 August 2022 Solicitors for the Applicant: Ms A Graziotti, Estrin Saul Lawyers Solicitors for the Respondent: Ms E Bennett, Minter Ellison Counsel for the Respondent: Mr T Lettenmaier, Murray Chambers
The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.
See s 501CA(4)(a) of the Migration Act and [11]-[14], [18] above.
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