Rodriguez Torrez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3014

Rodriguez Torrez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3014 (23 August 2024)
Division:GENERAL DIVISION
File Number:2024/3823
Re:Rodriguez Torrez, Luis Fernando
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:23 August 2024
Place:Adelaide

The decision under review is affirmed.
…..........................[sgnd].................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class XB Subclass 201 In-country Special Humanitarian visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – Applicant was convicted of sexually penetrating a child of or over the age of 13 years and under the age of 16 years – Applicant was sentenced to 20 months of imprisonment – whether the decision to revoke the visa cancelation under section 501CA(4) should be set aside – consideration of Ministerial Direction No. 110 – legal consequences of the decision considered – no “protection finding” - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
23 August 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 4 June 2024,[1] not to revoke the mandatory cancellation of his Class XB Subclass 201 In-Country Special Humanitarian visa (“the Visa”). His visa was cancelled on 21 July 2023[2] under section 501(3A) on the basis that he did not pass the character test.[3]
[1] Exhibit2, G-Document, G2: Delegate’s Decision Record, 10-25.
[2] Ibid Attachment H: Notice of visa cancellation, 150-155
[3] Ibid 151.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction of “sexually penetrating a child of or over the age of 13 years and under the age of 16 years” for which he was sentenced to 20 months of imprisonment.[4]
[4] Ibid Attachment A: National Criminal History Check, 28-9; Attachment B1: Sentencing Remarks of the District Court of WA, 30-34.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 13, August 2024, partially via Microsoft Teams. I say partially, because everyone other than the Applicant was able to join by Teams. Unfortunately, it was not possible to establish a video link with Yongah Hill Detention Centre in WA. Cases such as this one, have very serious implications for Applicants. Having to resort reliance upon the Applicant’s mobile phone, to conduct a hearing, is unsatisfactory. Unfortunately, given the expedited nature of these proceedings, the Tribunal had no alternative other than to proceed in those circumstances.
The Applicant was self-represented. He required the assistance of a Spanish interpreter. I am satisfied that he has no more than the most rudimentary English language skills.
The Applicant did not call any witnesses. This was unfortunate. They may have provided important information to the Tribunal about the Applicant’s connection to the Australian community, including his connection (if any) to minor children. They may also have assisted in understanding the level of support that he might have, if he were to be released into our community.
The Respondent was represented by Ms Centaine Mumford of Australian Government Solicitor.
The Applicant gave evidence by telephone. As I have already mentioned, this was sub-optimal. Nevertheless, even after allowing for this and the mediation of an interpreter, I came to the view that the Applicant was an intelligent, but unreliable witness. He frequently gave lengthy, rambling and largely unresponsive answers to quite simple, direct questions. He took many opportunities to say what he wanted to say, without apparent regard to the question put to him. The Applicant obviously had some understanding of the factors relevant to his case. In my opinion, he tailored his evidence accordingly. There were instances where the Applicant gave evidence that was difficult to accept, or inconsistent with other evidence, or even contradicted the findings of the sentencing Judge. His evidence tended towards exaggeration, if not indeed invention. Some examples are discussed below.
My view of the Applicant’s overall lack of credibility is relevant to the important task of assessing the risk that he may present to our community if he were to be released back into it. In my view, his assurances that he will not reoffend, carry little weight.
Background Facts
The Applicant was born in 1990 in [place], Honduras.[5] He is 33 years of age and he is a citizen of Honduras.[6]
[5] Ibid Attachment E: Personal Circumstances Form, 47.
[6] Ibid.
Between 2009 and 2019, the Applicant worked for various TV stations in Honduras. He told the Tribunal that he did research, and he also presented on TV. He made various self-important statements about the significance his role as a journalist. He stated for example, “I am very influential in my country”.
In May 2019, the Applicant attempted to claim asylum in the United States of America (USA). He said that this was due to his fears of persecution in Honduras.[7] He told the Tribunal that he was a “wetback” . He travelled to the US illegally, passing through Mexico. He was detained for a few months and then found not to engage US refugee protection obligations.
[7] Ibid Attachment F1a: Statutory declaration of the Applicant (dated 14.11.2023), 67-9.
When asked about why protection was refused in the US, he stated that as a journalist, he had exposed the corrupt behaviour of a former President of Honduras. He claimed that the former President’s wife had even attended the hearing of his asylum application in Texas. He claimed that she gave evidence that his fears of being in danger if he returned to Honduras were false.[8] He claimed that the former Honduran President was also a close personal friend of then US President, Donald Trump. He claimed that President Trump wanted him removed from the US because “if affected his friend”.
[8] Ibid 68-9 at [31].
He was deported to Honduras in September 2019.[9]
[9] Ibid Attachment F2a: Written Submission of the Applicant’s Representative, 108 at [33].
According to a submission made on the Applicant’s behalf by “Circle Green Community Legal” on 15 November 2023,[10] in October 2019, the Applicant went to Mexico, again seeking asylum. According to this submission, his claim was again refused, and he was again deported to Honduras.[11]
[10] Ibid 99-111.
[11] Ibid 108 at [33].
In evidence to the Tribunal, the Applicant denied that he had ever sought asylum in Mexico. He could not offer any explanation as to why a submission made on his behalf to the Respondent, should have said this.
The Applicant told the Tribunal that he had never sought asylum in any of the many Spanish speaking countries in Latin America. He could not offer a reason as to why this was so. Given that the Applicant says that he has always worked as a journalist and in broadcasting, his primary work skills would obviously be of most use in a Spanish speaking country. Those skills are of limited use if, as in Australia, he has no current capacity to communicate in the national language.
On 11 February 2021, the Applicant was granted the visa.[12]
[12] Ibid Attachment H, 150.
On 18 June 2021, the Applicant arrived in Australia.[13] He stated that he was seeking protection due to his work as an investigative journalist.[14]
[13] Ibid Attachment I: Movement Details, 157.
[14] Ibid Attachment F2b: Pre-sentence Report of the Applicant, 113.
The Applicant has not worked in Australia. He has been in receipt of Centrelink benefits.
On 28 January 2022, 7 months after his arrival in Australia, the Applicant committed a sexual offence against the victim (who was 15 years old at that time) in the men’s toilet at [X] Central Shopping Centre.[15]
[15] Exhibit 3, Respondent’s Tender Bundle, 2.
According to the Statement of Material Facts dated 7 February 2022:
“On the afternoon of Friday 28 January 2022, the victim was working in one of the shops at [X] Shopping Centre.
At about 2.00pm, the victim left the shop and walked to one of the public toilets in the shopping centre. The victim's hands were dirty so he washed them before using the toilet. As he was doing so, he noticed the accused, who was standing at a urinal, looking at him strangely. The accused waved his genitals back and forth. This made the victim uncomfortable so he left the toilet.
INDECENT DEALING
However, because he still needed to use the toilet, the victim re-entered the toilet and walked into a cubicle. The accused followed the victim into the cubicle. The accused took the victim's hand, placed it onto the accused's crotch and rubbed it back and forth.
SEXUAL PENETRATION
The accused placed one of his hands onto one of the victim's shoulders and gently pressed down until the victim was on his knees. The accused pulled his pants down and put his penis into the victim's mouth. The accused ran his hands through the victim's hair and moved his head back and forth until he ejaculated.
…
The accused left the shopping centre on foot and the victim called his mother to tell her what had happened.
Police attended and commenced an investigation. A review of CCTV footage established that the accused had travelled to and from [X] by train, using a SmartRider card registered in his name. The CCTV footage corroborated that the accused and the victim were in the toilet at the same time. The CCTV footage also showed the victim chasing after the accused and the accused showing him his mobile phone.
On 7 February 2022, the accused was arrested at a hotel in Perth. During a search of his room, investigators located the clothing that the accused was shown wearing on the CCTV footage from the shopping centre and the SmartRider card he used to travel to and from [X].
The accused declined to participate in an interview.”[16]
[16] Ibid 2, 3.
The contents of this statement were put to the Applicant. The relevant passage in the evidence records:
“MS MUMFORD: Yes. Thank you. Sorry, another statement that’s in that statement of material facts is that when the victim entered the bathroom or entered the toilets, he noticed you. You looked at him and then waved your genitals back and forth. Did that happen?
INTERPRETER: No, that didn’t happen.
MS MUMFORD: Okay. The victim walked into a toilet cubicle, and you followed him into the cubicle.
INTERPRETER: It didn’t happen that way.
SENIOR MEMBER: At any stage after you first saw the boy, did he actually leave the room and then come back?
INTERPRETER: Yes, and that’s what the camera shows, him leaving and going to the bathroom.
SENIOR MEMBER: No, sorry, you – the statement we’re looking at says that the boy goes into the toilet at the shopping centre, he’s washing his hands, he then notices you in there and he then left the toilet. Did that happen?
INTERPRETER: The boy was already in the bathroom when I went into the bathroom. I sit down when I go to the bathroom, so I wanted to go to the cubicles but they were all full.
SENIOR MEMBER: You’re not listening to – you’re not listening to the question.
INTERPRETER: I stayed a few minutes waiting for someone to leave the cubicles, but nobody was there so I pretty much, you know, waited for someone to leave, and when they didn’t, I just decided to use the urinal. And that’s when I hear the door of the cubicle, and I do sense that there’s someone behind me, so I turned and look back, and I see the boy looking at me.
SENIOR MEMBER: You’re not listening to my – stop. Stop. Stop. The question was very simple. The question was, did the boy leave the room and then come back – I mean the bathroom. Did the boy leave the bathroom altogether, then come back into the bathroom at some point?
INTERPRETER: Yes. That is correct. He left the bathroom, and then he goes back into the bathroom, and the CCTV footage will show that.
SENIOR MEMBER: And you say all of the cubicles were already occupied so you had to go to the urinal?
INTERPRETER: That is correct.
SENIOR MEMBER: Okay. Ms Mumford, sorry.
MS MUMFORD: The boy came back into the bathroom, and then went into one of the toilet cubicles?
INTERPRETER: And he then uttered the word ‘hey’, that’s when I turned around, and he did a sign as to – for me to get close (indistinct).
MS MUMFORD: Okay. And you followed him into the cubicle?
INTERPRETER: I attended to his call.
MS MUMFORD: Okay. Then you took the boy’s hand and placed it on your crotch.
INTERPRETER: No, he actually touched my intimate parts.
MS MUMFORD: You’re saying he initiated that.
INTERPRETER: Yes.
MS MUMFORD: Okay. And after that, you placed your hands on the boy’s shoulders and pressed him down until he was on his knees?
INTERPRETER: That’s a lie.
MS MUMFORD: How did you – or how – sorry, Interpreter, let me just think about how to phrase this question. How did the boy go from, I guess, touching your genitals to giving you oral sex?
INTERPRETER: Well, he started kissing me and I kissed him back, and that’s when he put his hands and started touching my genitals, and then he signalled me to pull my penis out, and I did and I started masturbating, and his reaction was getting on his knees and put it in his mouth. And a little – when I finished, a little bit of the semen dropped on his shorts because his shorts were down as he was masturbating himself while he was giving me oral sex. So a little bit of my semen was dropped on his (indistinct). Then he wiped himself, he walked out of the cubicle, and I stayed behind cleaning myself, and when I left, when I went out, he was no longer in the bathroom, but then came back, and that’s when I saw him.
And this is when he approached me so that he could have my mobile, and I gave it to him. And – sorry, I’ll just verify. We walked together out of the bathroom. We walked that hall, and then he took one way, I took another, and I walked towards the main entrance of the – of the – and when I got to the glass door at the mall, the main entrance, he surprised me because he was there again asking for my mobile. He then checked my mobile, and he gave it back to me, and we said goodbye, and he reported me because he thought that I had recorded the sexual Act. The police checked my phone and verified – confirmed that there was nothing recorded.
All this without me knowing that he was a minor.
………….
MS MUMFORD: Sorry, Senior Member. Thank you. Mr Torrez, I just want to confirm, on your account of the events, it was the boy who initiated all the sexual contact; is that correct?
INTERPRETER: That is correct.
MS MUMFORD: Now, I have a couple of questions for you just in relation to the sentencing remarks of – I think it’s Justice McLean?‑‑‑Okay.
And they start on page 30 of the G documents, and you’ve said this today, but Justice McLean states that you were – or you claim you were mistaken as to the age of the boy; is that right?
INTERPRETER: The boy showed me an ID – an identification card.
MS MUMFORD: Sorry, when did that happen?
INTERPRETER: In the bathroom when we were in the cubicle. I asked him for one in whichever way I could. I asked for one. There was an identification card that proved that he was not a minor, but in the end it so – but in the end it so happened to be that he was a minor, and we can’t turn back time, and that’s why I asked for forgiveness and showed my remorse at having had minor – had sex with a minor.
SENIOR MEMBER: Sorry, before you – I just need to be clear on this. You’re saying that the boy initiated the contact; is that correct?
INTERPRETER: Correct.
SENIOR MEMBER: And he gestured for you to come towards him.
INTERPRETER: Yes.
SENIOR MEMBER: And you went to the cubicle where he was?
INTERPRETER: Correct.
SENIOR MEMBER: And you asked him for an ID?
INTERPRETER: He did this sign calling me to go in, and I went in.
SENIOR MEMBER: Yes, I know, but you ‑ ‑ ‑
INTERPRETER: He closed the door and started kissing me.
SENIOR MEMBER: Yes, but you told us a moment ago that the boy showed you his ID.
INTERPRETER: Yes, just allow me to finish so that I can point you as to when that happened.
SENIOR MEMBER: No. Well, I’m just asking you to tell me when it happened.
INTERPRETER: Well, when he started to – caressing or touching my genital parts, he – I said no because he wanted to get my penis out, and so I started asking him, ‘ID, ID, ID, ID’, and he made signs as to not understanding what I was trying to say. And since he saw that I wasn’t giving in, he just pulled out of his pocket an identification card. I saw the card, I could tell he was older, and so he put it away, and he put it back in his pocket, and that’s when he – that’s when I took my penis out and started masturbating, and that’s when he pulled his shorts down and he starts masturbating too while he’s giving me oral sex.
SENIOR MEMBER: From what you were saying, you were not prepared to proceed with this. You were resisting his advance towards you until you had seen the ID; is that right?
INTERPRETER: Yes, I would have gone immediately.
SENIOR MEMBER: Okay. And what made you want to see the ID? What was the purpose of that? Did you need to know his name? Why did you need to see the ID?
INTERPRETER: I wanted to check whether he was Australian or not.
SENIOR MEMBER: I see. And did the ID help you with that?
INTERPRETER: Well, I went by his demeanour, and I went by his height because he was, like, 190 centimetres ‑ ‑ ‑
SENIOR MEMBER: No, no, no. You’re not answering the question. You said that you wanted to check if he was Australian or not, that’s why you wanted to see the ID.
INTERPRETER: Yes, because it was an Australian card.
SENIOR MEMBER: Yes, but why did it matter to you at that point in the cubicle whether or not he was an Australian?
INTERPRETER: I don’t know. I was just curious.
SENIOR MEMBER: You were curious.
INTERPRETER: And that’s why I asked for that identification.
SENIOR MEMBER: And did the card tell you whether he was Australian or not?
INTERPRETER: Well, I went by the stamps from Western Australia.
SENIOR MEMBER: Okay. He invites you into the cubicle, you’re resisting his advances towards you, and then you think it’s important to check whether he’s Australian or not because you’re curious; is that right?
INTERPRETER: Correct, and if he was not a minor.
SENIOR MEMBER: And if he was not a minor.
INTERPRETER: If he was an adult, if he was above age, if he was about age. I’m quoting, Member.
SENIOR MEMBER: Sure.
INTERPRETER: Senior Member.
SENIOR MEMBER: Did you have questions in your mind as to whether he was of age?
INTERPRETER: Which age?
SENIOR MEMBER: I’m using your words, not mine. You said you were going – you said and you also wanted to check his age. My question is why did you feel it necessary to check his age?
INTERPRETER: I don’t know. I just had that inkling. I mean, in my country, I would always ask that for that – for any man that I would get close to. It’s a habit that I have, and I can’t get it – I can’t get rid of it.
SENIOR MEMBER: So it was – he’s appeared to be young enough for you to bother checking?
INTERPRETER: Well, his height and body suggested that he was above age.
SENIOR MEMBER: Why did you have to check?
INTERPRETER: I always ask for that in my country, you know, it’s just something that I do. Even if it’s an elderly, I always do that.
SENIOR MEMBER: Okay. Thank you.
MS MUMFORD: Thank you. The other thing the sentencing judge said is that it was obvious the boy was a child, and you should have left him alone. Do you have any comments about that?
INTERPRETER: Sorry, Ms Mumford, I could – there is a part that I couldn’t hear.
MS MUMFORD: Sorry. The other thing the sentencing judge said is that it was obvious the boy was a child and ‑ ‑ ‑
INTERPRETER: That he should be left alone.
MS MUMFORD: (Indistinct).
INTERPRETER: Yes, I caught the last part. It was just the word. Yes.
MS MUMFORD: Yes.
INTERPRETER: But I didn’t – I didn’t know that he was a minor, and nothing was – I never forced myself. Everything was consensual, and that’s what – and that’s what I want to clarify or make it very clear that I am not a paedophile. I am not a paedophile.
MS MUMFORD: Okay. Sorry, and going back to the ID, you said you checked his ID, but do you remember how old the ID said he was?
INTERPRETER: I would – I think it was about – I don’t remember exactly that – the exact amount but from what I vaguely recall he would have – it would said that he was 20 years old.”[17]
[17] Transcript of Proceedings (extract), Torrez v Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, SM Rau, 13 August 2024) 2 - 9.

This evidence raises several serious issues, notably the evidence that the boy initiated and pursued the contact and the alleged production of an ID.
The Applicant’s description of the boy’s behaviour is most unlikely, given their differences in age and experience. The Applicant suggested that he was just a passive participant, in a sexual encounter, in a public toilet, which was entirely initiated by a 15-year-old boy. This does not accord with the sentencing Judge’s findings.
If the Applicant had made a request for an ID, it is unlikely that he would have done so in the throes of furtive a sexual encounter, simply because he was curious about the victim’s nationality. The whole ID story in fact supports the inference that the Applicant suspected the victim was underage. He went ahead anyway. If an ID was produced as claimed, it is curious that in his oral evidence he did not clearly recall exactly the victim’s stated age. This whole ID story is at odds with the findings of the sentencing Judge. It is offered as an excuse for his offending against the victim.
On 7 February 2022, the Applicant was arrested at a hotel in Perth.[18]
[18] Exhibit 3, Respondent’s Tender Bundle, 1-2.
On 8 February 2022, the Applicant was remanded in custody.[19]
[19] Ibid 55.
On 19 October 2022, the Applicant entered a plea of guilty.[20]
[20] Exhibit 2, G-Document, Attachment F1a: Statutory declaration of the Applicant (dated 14.11.2023), 65 at [9].
A pre-sentence report dated 1 June 2023, relevantly states:
“Mr Rodriguez-Torrez has pleaded guilty to sexually penetrating an unknown 15-year-old child. He does not have a known history of offending in this State, and he denies having a criminal record in any other location - including his country of origin. A Psychological Report was not able to be completed due to difficulties experienced accessing an interpreter. Please see the attached correspondence (08/05/2023) from [redacted information]. Notwithstanding the absence of a specialist report, no information was obtained to suggest he has a deviant interest in children. His conduct largely appears to be spontaneous and opportunistic - with sexual gratification being achieved. A lack of consequential thinking is evident. If admitted to a community-based disposition in this instance, it is proposed any Order is made subject to supervision and programme requirements to address his criminogenic needs. Individual interventions are indicated, given his limited grasp of English. Mr Rodriguez-Torrez would need to pay off a fine. If imprisoned, parole eligibility is supported.
OFFENDING HISTORY AND ASSESSMENT
Mr Rodriguez-Torrez does not have any prior criminal convictions in this State or any other jurisdiction. As such, his current offending appears to be a departure from his previous law abiding lifestyle. Opportunity, impulsivity and a desire to have his sexual needs met appear to be the main drivers in this offence. A lack of consequential thinking is evident. Whilst Mr Rodriguez-Torres openly acknowledges a sexual attraction to males, he denies this extends to children . According to Mr Rodriguez-Torrez, all his sexual partners and/or interactions have been with adults. It is understood he does prefer to partner with males aged 18 to 23 years old. Mr Rodriguez-Torrez was candid revealing he has previously been a victim of childhood sexual abuse and as such, is adamant he would not intentionally inflict harm on others. His risk of sexual reoffending is best determined via a psychological assessment. Unfortunately, [redacted information] was not able to successfully interview him using an interpreter on 01/05/2023. Mr Rodriguez-Torrez's has minimal English language skills.
Whilst a specialist psychological assessment is best placed to ascertain Mr Rodiguez Torrez's current risk and treatment needs/options, he may benefit from addressing the following:
·Consequential thinking
·Sexual offending
·Past trauma
….
CURRENT OFFENCE CIRCUMSTANCES
Mr Rodriguez-Torrez was interviewed in person at [X] Prison on 25/05/2023 using a Spanish speaking (telephone) interpreter. He acknowledged he was familiar with the unamended Police facts and confirmed his guilty plea to sexually penetrating a 15-year-old male child [redacted information]. With hindsight he was able to consider victim impact issues and express some remorse.
….
RELEVANT BACKGROUND INFORMATION
According to Mr Rodriguez-Torrez, he was 15-years-old when he made disclosures to his family about his sexual orientation. He advised they were supportive of him and acted to protect this information from becoming common knowledge, due to cultural/social intolerances and prejudices… [redacted information].
Mr Rodriguez-Torrez informed he has not worked since arriving in Western Australia; however, would eventually like to complete his university studies and return to journalism. He advised he has been assisted by the Red Cross resettlement programme. This includes attending counselling via the Association for Services to Torture and Trauma Survivors and undertaking general English language classes . He has been in receipt of Centrelink benefits.
Despite his personal experiences, Mr Rodriguez-Torrez considers he typically experiences good physical and mental health - with no history of self-harm or suicide ideation. However, he noted his current experience as a remand prisoner has left him feeling emotionally vulnerable. He alleges he has been physically assaulted and he is frequently propositioned for sexual favours by staff and/or other prisoners. As a result of his refusals to sexually engage, he claims he has been denied access to medical and psychological care, as well as access to an interpreter.”[21]
[21] Exhibit 2, G-Documents, Attachment F2b: Pre-sentence Report of the Applicant, 112-4.
The Applicant said of this offending:
“ 6. During the trial of issues, it was raised by the defence that Mr Rodriguez Torrez had a mistaken belief as to the age of the victim. This was argued to be due to a large difference in height and build and that the victim had provided a false ID which led Mr Rodriguez Torrez to believe that the age of the victim was actually 20 years old. Although not ultimately accepted by the court we submit that this can be described as wilful ignorance of Mr Rodriguez Torrez as to the age of the victim and not a persistent sexual desire for minors.”[22]
[22] Ibid Attachment F2a, 101-2 at [6].
On 7 June 2023, the Applicant was convicted of “sexually penetrating a child of or over the age of 13 years and under the age of 16 years” in the District Court of Western Australia.[23] The sentencing remarks of MacLean DCJ relevantly state:
[23] Ibid Attachment A, 29.
“You now come to be sentenced for one offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years by penetrating his mouth with your penis. You pleaded guilty to the offence but contested the facts on the basis that you were mistaken as to his age. A trial of issues was heard before me. And I rejected your position. Notwithstanding the rejection of your position, it remains the case that I must consider a discount for the plea of guilty.
The maximum discount I can give is a discount of 25 per cent. However, that would not be appropriate in this case for reasons that, obviously, include the fact that the trial of issues took place, the victim was required to give evidence and the case against you could only reasonably be described as strong. And in that regard, I incorporate without repeating the matters that Mr McDonald submitted moments ago. It remains the case, however, that a discount of some sort is appropriate. I propose to discount the penalty I otherwise would have imposed by five per cent.
Insofar as the circumstances of the offence though, I have previously made findings of fact and did so on the occasion of the last hearing. I don’t propose to re-read those reasons, but I will refer to some of them. It was clear that while the victim was not, in any way, physically frightened of you and, while you were considerably smaller than he in both height and weight – and while it was not contended that the act took place without the child’s consent and while I found that the child was in the booth before you entered and while he was curious about sexual contact, it was obviously the case that he was a child.
The purpose of the law is not only to protect children from those would take advantage of them, but also to protect children from themselves. I accept that the sexual contact was not forced upon the victim. And I accept that you did not have any prior dealings with the victim. I accept that the offending was spontaneous and opportunistic and isolated. But I do have to have regard to the need for the protection of children as being the most significant principle, insofar as the imposition of this sentence goes. With regard to your personal circumstances, they are set out in the written submissions Ms Griffin provided.
And I accept that you are, presently, 32 years of age and were 31 at the time of the offence. I’m told and accept that you are single, with no dependents, and that you were born in Honduras, that you have a work history which includes investigative journalism and that your vocation has exposed you to threat insofar as your personal safety and life goes. By reason of those threats, you were declared to be a political refugee and have located to Australia and have permanent residency. You’ve been in custody for 16 months since police arrested you, following the allegation. And you have found custody difficult, for reasons that include your limited understanding of English. Your time in custody has been marked by abuse and assaults, and this has had a negative impact on your mental health. You have some support in Perth, and I’ve been provided with character references from A.L, L.G and Y.R. Those references speak well of you.
Ms L.G’s reference speaks of your work at the Red Cross and your support which you’ve given to others in your community, and, collectively, those references demonstrate that you have support in the community. The references tell me – and I accept – that this offending is out of character for you. It is not suggested that you have a criminal record in any country outside of Australia, and I accept that you have no record of convictions in this state or this country. And I sentence you on the basis that you are a person of otherwise good character.
The maximum penalty for the offence of sexually penetrating a child of or over the age of 13 and under the age of 16 is 14 years imprisonment. Insofar as the offending in this instance goes, it was offending that was of a spontaneous and one-off nature against a child, while – who – of a large physical size, was, obviously, a child. The offending is made more serious by reason of the fact that you were 31 years of age at the time. It should have been and must have been obvious that the victim was a child. And notwithstanding his expression of interest in an event taking place, you should have left him alone. The only appropriate penalty is a term of imprisonment.
Having regard to the discount for the plea of guilty, the fact that it is not alleged and not demonstrated, in any event, that the contact took place without the victim’s consent, the fact that the victim was curious and openminded about sexual contact with you, but recalling that it was obvious that the victim was a child, although he was in no way physically frightened by you or overborne by you, and recalling that it was spontaneous and opportunistic offending and taking into account the difficulties a term of imprisonment will result in upon you, having regard to your language difficulties – or not difficulties – lack of capacity to speak English and the fact that you have never received a term of imprisonment previously and are a person of otherwise good character, for whom this conduct might be described as an aberration and who has community support and, therefore, good prospects of leading a lawful life, an appropriate term of imprisonment is 20 months.
I understand I cannot impose a term of imprisonment unless it is not appropriate to impose any other penalty that is less serious than a term of imprisonment. In this case, each party accepts that a term of imprisonment is the only appropriate sentencing outcome. Notwithstanding that acceptance, it remains for me to be positively satisfied, having regard to the hierarchal order of section 39 of the Sentencing Act that it is not appropriate to impose a term – a penalty that ranks lower in order to a term of imprisonment.
I’m required to consider the suspension of the term of imprisonment and understand that I cannot impose an immediate term of imprisonment unless I’m positively satisfied that it would not be appropriate to suspend, conditionally or otherwise, the term of imprisonment that I have imposed. In this case, I am positively satisfied that it would not be appropriate to suspend the term of imprisonment. The offending is too serious for it to be dealt with by way of a suspended term.
What marks the offending as being that serious is the significant age disparity between you, Mr Rodrigues Torrez, and the child, and the fact that it was obvious that the child was a child. And even though it was the case that the child was open-minded and curious about sexual contact with you, there is a significant interest which I’m bound to apply insofar as imposing a penalty that works to protect children who are vulnerable. And that is so even in the instance where the child is 15 years of age and physically large, the fact remains that he was a child and the law has to do what it can to protect children from unsafe behaviours.
And in circumstances where you must have known that the person in the booth was a child, you should simply have left him alone. And the need for a penalty that works to protect children and to specifically punish you is too great in the circumstances of this case for the term of imprisonment to be suspended. The term will be backdated to 7 February 2022 to reflect the time you have already spent in custody, which is some 16 months. As the total effective sentence is 20 months, and as I propose to direct, you will be eligible for parole.”[24]
[24] Exhibit 2, G-Documents, Attachment B1 - Sentencing Remarks of the District Court of WA, 30-4.
It is notable that the Judge did not refer to the Applicant’s story about the victim having shown him a false ID to the Applicant.[25]If it was raised at all before the Judge, he did not think it was worth discussing in his sentencing remarks.
[25] Ibid Attachment F2a, 101-2 at [6].
On 21 July 2023, the Applicant’s visa was cancelled because the Delegate was not satisfied that he passed the character test.[26]
[26] Ibid Attachment H: Notice of visa cancellation, 150-6.
On 18 August 2023, the Applicant made representations to request revocation of the cancellation decision.[27]
[27] Ibid Attachment D: Written Submissions from the Applicant’s Representative, 43-5.
On 7 September 2023, the Applicant provided a ‘Personal Circumstances Form’ to assist the consideration of his revocation request.[28]
[28] Ibid Attachment E: Personal Circumstances Form, 46-63.
On 6 October 2023, the Applicant was transferred to immigration detention.[29]
[29] Exhibit 3, Respondent’s Tender Bundle, 55.
On 4 June 2024, the Delegate of a Minister administering the Migration Act 1958 decided not to revoke the cancellation decision.[30]
[30] Exhibit2, G-Documents, G2: Delegate’s Decision Record, 10; G3: Delegate’s Statement of Reasons, 11-25.
On 11 June 2024, the Applicant made an application for review of the Delegate’s decision at the Administrative Appeals Tribunal.[31]
[31] Ibid G1: Application for Review of Decision, 1-9.
The Applicant claims that he was a high-profile journalist in Honduras before he arrived in Australia.[32]
[32] Ibid Attachment F1a: Statutory declaration of the Applicant (dated 14.11.2023), 65 at [7].
According to the pre-sentence report, the Applicant has not worked since he arrived in Western Australia. He was in receipt of Centrelink benefits prior to his incarceration. He also received assistance from the Red Cross resettlement programme.[33] He says that he did some volunteer work with youths.
[33] Ibid Attachment F2b: Pre-sentence Report of the Applicant, 114.
The Applicant says that he did undertake some English language studies at TAFE from late 2021 to January 2022.
The Applicant he has no immediate family or relatives currently living in Australia.[34]
[34] Ibid Attachment E, 57.
The Applicant is single.[35]
[35] Ibid 51.
The Applicant does not have any minor children (including biological, adopted or step-children) in Australia.[36]
[36] Ibid 53.
The Applicant stated that he plays no role in any minor children’s life and/or no minor children will or will likely have an impact of the outcome of decision.[37]
[37] Ibid 54.
This is somewhat at odds with the statements of his friends, which are discussed below in the context of ties to Australia.
The Tribunal asked the Applicant several questions regarding his connection to minor children in Australia. The detail of his responses is set out below.
The Applicant states that he does not have any diagnosed medical or psychological conditions, and he is currently not taking any medications.[38] The medical records provided to the Tribunal record him as having completed penicillin treatment for syphilis and having some currently undiagnosed liver problems. [39] He told the Tribunal that he has thus far refused to have a biopsy to investigate this further.
[38] Exhibit 2, G-Document, Attachment F1a, 67 at [19].
[39] Exhibit 3, Respondent’s Tender Bundle, 122,128
I do note however, an Incident Detail Report compiled by the Department of Home affairs on 23 May 2024, which states that on 16 May 2024, the Applicant “threatened to kill himself if his visa application fails”.[40]
[40] Ibid 187.
It is noted that, the Applicant may benefit from attending counselling via the Association for Services to Torture and Trauma Survivors.[41] The Applicant’s lack of even basic English language skills, has meant that engaging with any programmes has, up to now, been practically impossible.[42] If he were to be released into the community, this would remain an impediment to treatment.
[41] Exhibit 2, G-Document, Attachment F2b, 114.
[42] Ibid Attachment F2a, 105 at [21].
There is no evidence that the Applicant has any alcohol or drug abuse history.
The Applicant’s parents and a half-sister are still living in Honduras.[43] He has a brother in Spain and one in the USA. He has a half-sister in the USA. The Applicant also has 2 grand-mothers, 6 uncles/aunts, about 8 cousins and 4 nieces/nephews who are currently living in Honduras.
[43] Ibid Attachment E, 57.
The Applicant denied having any connections in Honduras aside from his mother. He said of his other relatives that “it is as if they don’t exist”. He admitted when questioned, that he had a lot of friends in Honduras, but said that he had no contact with them “because of my risk of death”. It seems that his claimed isolation from them is self-imposed.
I note that a WA Dept of Justice Parole Review Report dated 3 July 2023 states:
“Mr Rodriguez Torrez receives visits from his friends who reside in [place 1], [place 2] and [place 3].
Mr Rodriguez Torrez stated during interview he has been in contact via phone with family in Honduras and America, however does not want to do eVisits with his family as he does not want them to see him as he is. Mr Rodriguez Torrez is aware of eVisits and the mail procedure and entitlements.”[44]
[44] Exhibit 3, Respondent’s Tender Bundle, 80.
If the Applicant were to be released into the community, Y.L has indicated “a willingness to support him”.[45]
[45] Exhibit 2, G-Document, Attachment F2a, 106 at [26].
She was not called to give evidence about this.
The Applicant has no concrete plans for treatment, work or accommodation if he were to be released into our community.

The Applicant’s offending record is set out in Annexure B.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant was sentenced by Judge MacLean of the District Court of Western Australia to a term of imprisonment of 20 months.[46]
[46] Ibid Attachment B1: Sentencing Remarks of the District Court of WA, 30-4.
The Tribunal finds that the Applicant does not pass the character test on account of his conviction of “sexually penetrating a child of or over the age of 13 years and under the age of 16 years”. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to revoke the original decision, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[47]
[47] On 21 June 2024, the former applicable direction, Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[48]
“…Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[49]
[48] [2018] FCA 594.
[49] Ibid [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
Primary Consideration 1 – Protection of The Australian Community
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been convicted of a very serious sexual crime against a child. A trial of issues had to take place, because the Applicant claimed that he was mistaken as to the victim’s age. This claim was rejected by the Judge.[50] To the extent that the Applicant may have raised the defence of the victim having shown him a false ID, the Court did not accept his defence.[51]
[50] Exhibit 2, G-Documents, Attachment B1, 31.
[51] Ibid Attachment F2a, 101-2
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
The Applicant clearly does not pass the character test. His crime was opportunistic, of a sexual nature and his victim was a child.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The sentencing remarks are set out above. They speak for themselves. The imposition of a 20-month custodial term for a first offence, is indicative of the gravity of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
“A trial of the issues” was required because the Applicant raised the issue of his belief that the victim was not a child.[52] The need for protection of children is discussed by the sentencing judge.[53]
[52] Exhibit 2, G-Document, Attachment 31.
[53] Ibid 31-4.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant had only been in Australia for about 7 months at the time of the offending. No other criminal history is known.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
Given that only a single offence is known, this is not relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence of this.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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).
There is no evidence of this.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no evidence of this.
I do not consider factors (e) to (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
Sexual offences against children can have devastating consequences for the victims. This conduct is so serious that any risk that it might be repeated is unacceptable.
Likelihood of engaging in further criminal or other serious conduct
There is no expert evidence to assist in the assessment of risk. The pre-sentence report of 1 June 2023 suggests that some concerns exist that may benefit from treatment.[54] The Applicant has not had any relevant treatment. His lack of language skills would make accessing such treatment, even if he was in our community, quite problematic.
[54] Exhibit 2, G-Documents, Attachment F2b, 113.
The Applicant has no concrete plans for ongoing treatment, work, study or accommodation. He has an aspiration to learn English and to join our community.
We know that the Applicant opportunistically committed this offence approximately 7 months after his arrival in Australia. We don’t know anything about his past sexual conduct beyond what he has volunteered. His own evidence, however, suggests that he was not a stranger to this type of spontaneous encounter:
“INTERPRETER: …I mean, in my country, I would always ask that for that – for any man that I would get close to. It’s a habit that I have, and I can’t get it – I can’t get rid of it.
SENIOR MEMBER: So it was – he’s appeared to be young enough for you to bother checking?
INTERPRETER: Well, his height and body suggested that he was above age.
SENIOR MEMBER: Why did you have to check?
INTERPRETER: I always ask for that in my country, you know, it’s just something that I do. Even if it’s an elderly, I always do that.”[55]
[55] Transcript of Proceedings (extract), Torrez v Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, SM Rau, 13 August 2024) 8.
It has been suggested in his cause, that the Applicant has no history of similar behaviour involving minors. This may be so. There is no evidence before the Tribunal of past criminal activity. An important insight into the Applicant’s possible future conduct, may however be inferred from his past behaviour. The circumstances of the Applicant’s offending are set out above.
The Applicant has denied any sexual interest in children, though he does have a stated preference for young men 18-23 years of age.[56]
[56] Exhibit 2, G-Documents, Attachment F2b, 112.
The Applicant is alleged to have engaged in inappropriate sexual conduct while in prison[57] and immigration detention.[58] He claims that this is untrue. On the contrary, he claims that he has been the victim of unsolicited sexual advances by inmates and staff in prison/detention.[59]
[57] Exhibit 3, Respondent’s Tender Bundle, 71.
[58] Exhibit 2, G-Documents, Attachment G: Client Incident Report, 147-8.
[59] Ibid Attachment F3a: Written submissions of the Applicant's representative (dated 22 May 2024), 135-140; Attachment F3b: Statement of the Applicant (interpreted on 21 May 2024), 141-3.
The Applicant provided a statement concerning the allegations against him:
“…
Allegations of Sexual Advancement on 16 and 17 October 2023
7. This alleged incident occurred a few days after my arrival at Yongah Hill Immigration Detention Centre (YHIDC) on 12 October 2023. The allegation was that I had made sexual advances towards other detainees.
8. I confirm that there were allegations made about me making sexual advances towards other detainees, that I was spoken to by Serco officers and that the footages of the incident was reviewed and no further action was taken.
Allegation 1
9. An allegation was made that I had exposed myself to other detainees’ while in my room. I remember that a few days before, on about 12 October 2023, I had been having issues with another man in the detention centre. This person had been coming to my room often asking for cigarettes. I was getting frustrated with him and told him that I don’t smoke. After a few days of him coming to my room and asking me for cigarettes, I told him to leave me alone. A few days later I was told that there was an allegation made by someone to the officers that I was exposing myself to other detainees.
10. I acknowledge that I raised my voice with this man, and I called him a bad word, but I did not expose myself to him or made any sexual advances towards him.
Allegation 2
11. There was an allegation made that I had approached a detainee in the compound to ask if he wanted to masturbate with me and that later on, I was seen masturbating in my room with the door open.
12. I was spoken to by the Serco officers and was told that someone had made allegations that I was asking them to come into my room to engage in sexual acts. I denied that this occurred. I have not made sexual advances towards other detainees in the detention centre. I explained that I am gay, and I was interested in men but that did not mean that I would be exposing myself and making sexual advances towards all men.
Outcome of allegations
13. I was taken to a different compound and was asked questions about the incidents from the Serco officers on about 17 October 2023. They looked at the camera footage that showed this man was coming in and going out again of the corridor and my door was partially open. But there was no indication that I was exposing myself or masturbating behind the door.
14. The next day I was taken back to the unit after being in a punishment cell. I asked the officers about it, and they said that there was no assault, and it was now closed.
Incident on 23 February 2024
15. I would like to comment on the incident on 23 February 2024 where I was the alleged victim.
16. Another detainee threw condoms into my room. This could be seen on the CCTV footage. When this happened, I felt upset and intimidated. I didn’t know what this person meant when they threw the condoms into my room or if they would do something worse in the future.
17. While I have been in detention I have been subjected to homophobia and bullying by other detainees. I am openly gay and do not hide my sexuality. While I was in prison, I experienced sexual assault and propositions by other inmates and even staff. I am scared that I will experience something similar in detention. I do not feel safe in immigration detention.
18. I have been seeing a social worker and a psychologist in detention to talk to them about my mental health. I have asked to be transferred to a different detention center because I am worried about my safety in YHIDC. I have reached out to the Red Cross to talk about my experiences in detention.
19. I have been compliant and have not committed any offending since my release from prison. My time in prison and in detention has been very difficult and my mental health has suffered. I only now seek to live a lawful life in Australia where I am safe from persecution in Honduras.”[60]
[60] Ibid Attachment F3b: Statement of the Applicant, 141-3.

In evidence, the Applicant said:
“MS MUMFORD: This is in what’s called offender notes, Mr Torrez. They’re notes that have been made by prison officers while you were in prison about interactions they’ve had with you and things that may have happened. And there’s a note here that’s dated the 29 September 2023, and it says – and I’m going to quote this, Madam Interpreter, so let me know if you need me to repeat any parts.
INTERPRETER: Thank you.
MS MUMFORD: Prisoner Rodriguez was called into the unit managers office, and informed he is not to try and do any sexual acts or write any notes requesting prisoners to come into his cell for massages or sexual favours in any form.
INTERPRETER: Where was that? At the detention centre or in jail?
MS MUMFORD: That was in jail.
INTERPRETER: Look, I’ve never written notes or letters to anyone because I don’t even speak English. I don’t even – I don’t even know how to write in English. I was sexually abused in jail on a daily basis, and the – and I was – always remain silent because the officers suggested that I had no rights, and every time I try to complain, what would happen, I would just be sent to a solitary confinement – I was sent to a room with a – because I wanted to check whether it was solitary confinement – but I was sent to a room without a bed or anything.
MS MUMFORD: Okay.
INTERPRETER: And in both jails, I was a victim of sexual abuse.
MS MUMFORD: Okay. Did you seek out or proposition any of the other inmates for sexual acts at all?
INTERPRETER: Sorry, Ms Mumford, can you say that again?
MS MUMFORD: Yes. Did you ask any of the other prison inmates for sexual acts while you were in prison?
INTERPRETER: No-one, absolutely no-one. If anything, I was forced and coerced into giving them massages and being, like, the woman in order to survive.
MS MUMFORD: Okay. We might move to detention now?‑‑‑Okay.
……..
MS MUMFORD: Yes. All right. Mr Torrez, you’ve already been asked about these events by the delegate, but we just need to, I guess, clarify them and seek some further information from you. There are two events that have occurred while you were in detention.
INTERPRETER: Yes, that’s correct.
MS MUMFORD: First there was a report about you allegedly flashing another detainee while you weren’t wearing pants.
INTERPRETER: That is a lie.
MS MUMFORD: Are you able to tell us what might have happened?
INTERPRETER: I had a problem with two men who have since been deported to their countries of origin. There was one of them, he was a big guy, and he would always come into my room and ask for cigarettes, but because I didn’t understand the language, he couldn’t understand me and that because I didn’t a phone, I couldn’t communicate with him. And so he just kept coming back and – you know, to my room, coming back, and I kept saying, ‘No smoking. No smoking’ because he was consistently intimidating me so that I could either give him or buy cigarettes. And it was my fault because in the end I lost it and I became exasperated and starting abusing him in Spanish, and I kicked him out of the room.
And then he proceeded to, you know, pretty much just started saying ‘gay’ which is something I could understand because it’s a word we even use in my country too, you know, and he just abused me. So the other (indistinct) who’s already since been deported, the other man ‑ ‑ ‑
MS MUMFORD: Sorry, could I just quickly clarify, is this in relation to the second report about the other detainee asking about – Mr Torrez allegedly asking another detainee if he wanted to masturbate together?
INTERPRETER: No, no. This is that same old man that I’m telling you that he was intimating me because of the cigarettes.
MS MUMFORD: Okay.
INTERPRETER: And that same man was the one who started alleging and making up things saying that I had flashed him, and that I wanted to – invited him to masturbate and have sex. So he accused me a few days later because he was upset, and I actually told the officers, ‘I didn’t come here to be anyone’s woman. I don’t even feel like sex’. So that man just wanted to affect me in either way – in any way. There was no formal accusations, or they lodged any formal complaints because there was no evidence against me. If I had flashed him, he would have punched me or he would have reported me straight away, but he did – he waited a couple of days so that he could probably elaborate on his lie and report me.
MS MUMFORD: Okay. Thank you. Just to confirm, it was the same man who made both allegations; is that right?
INTERPRETER: No, no, it’s two different men. That’s the one related to the big guy, that fat man who was saying that I showed him – that I flashed him, and that I wanted to masturbate with him.
MS MUMFORD: Okay. Sorry, then who is the second man?
INTERPRETER: He’s already been deported back to his country of origin. That second man approached me with his Google translator and he proposed me for me to become his – I’m quoting – his woman while I was in detention. So I told him that I didn’t like blackmail, that I was disgusted, and I showed him that on the – and that I was not going to be anyone’s woman while I was in detention here. And so he got upset at me, he got angry, and it’s my fault for having said that. I shouldn’t have said that, but I was sick. I was sick of it. I’d had it because I was – just because I’m gay and homosexual, everybody wants to take advantage of me and use me.
He said a word I couldn’t hear. Just because I’m a homosexual, there both in jail and in the detention centre, even the officers have wanted to take advantage of me, and discriminated, and they have wanted to abuse me sexually. I’m constantly targeted and, you know, sodomised even because of the way I dress. I just want to say that it’s been hard. It’s been very tough to go through everything I have survived.
MS MUMFORD: Okay.
INTERPRETER: And what they tell me is to – I have to give in because I’m a Latin American and Latin American’s do not have a voice or a say in this country. Even the officers have said that because I’m homosexual and I like men, we are here to serve other men. That’s what the officers have told me. Though it’s been very hard. It’s been very hard for me not to be able to communicate in English and get close to someone and ask for help and say, ‘Help. Help me because I can’t take it anymore’. You’re immediately satanised and they just think, ‘You’ve been in jail’, when they don’t even know why you’ve been in jail and the circumstances that took you there.”[61]
[61] Transcript of Proceedings (extract), Torrez v Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, SM Rau, 13 August 2024) 9–12.
I am not satisfied on the evidence, that there has been any established sexual misconduct by the Applicant in prison/ detention.
I also, however, do not accept the Applicant’s unsubstantiated claims to have been the victim of sexual abuse in prison/detention by other inmates and staff. I consider that some of his claims about prison staff (highlighted above) , to be highly implausible.
Opportunistic sexual offending against children is aberrant behaviour. The Judge found that “it was obviously the case that he (the victim) was a child”.[62]
[62] Exhibit 2, G-Documents, Attachment B1, 31.
The Applicant’s excuse that he was mistaken about the victim’s age was rejected by the Judge. His representative submitted in consideration of revocation that: “… the state and the judge confirmed that the victim consented to the contact. It was concluded that there was no force or coercion on the part of Mr Rodriguez Torrez to carry out the offence. Furthermore, it was found that on the balance of probabilities the victim ‘contemplated a sexual contact or an experience of some intimate nature with the offender’.”[63]
[63] Ibid Attachment F2a, 102 at [7].
The passage above seeks to excuse the Applicant’s behaviour, not only because he was mistaken as to the boy’s age, but because there was no force used. This misses the critical point, that a child could not give informed consent.
His Honour stated: “… The purpose of the law is not only to protect children from those would take advantage of them, but also to protect children from themselves... The offending is made more serious by reason of the fact that you were 31 years of age at the time. It should have been and must have been obvious that the victim was a child. And notwithstanding his expression of interest in an event taking place, you should have left him alone.”[64]
[64] Ibid Attachment B1, 32.
The Applicant’s approach to his offending continues to be one of excusing his behaviour rather than owning it. This was evident in this hearing, where he repeated excuses that were rejected by the sentencing Judge. This raises real issues about his insight, remorse and risk of reoffending.
The Applicant’s claims and his representative’s submissions, constitute a failure to take full responsibility for his actions.
I note that the Applicant now states that he does not pose a risk to the community and that he is remorseful.[65]
[65] Ibid Attachment F1a, 66 at [13].
Any risk of this conduct being repeated is unacceptable.
I am not persuaded that the Applicant poses no risk of further offending.
In the absence of compelling expert evidence to the contrary, there is, in my view, a real risk that this behaviour may be repeated.
Conclusion: Primary Consideration 1
Primary consideration number one weighs very heavily against revocation of the Applicant’s visa cancellation.
Primary Consideration 2: Family Violence
There is no evidence of family violence.
Conclusion: Primary Consideration 2
This consideration is neutral.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant first came to Australia on 18 June 2021. He committed the sexual offence against the victim on 28 January 2022. This was slightly 7 months after his arrival.
He was arrested and remanded in custody on 7 February 2022. He has been in prison or immigration detention since then. He was in the Australian community for a total of slightly less than 8 months.
The Applicant has no family in Australia.[66]
[66] Exhibit 2, G-Documents, Attachment E, 57; Attachment F1a, 64.
The Applicant has virtually no English language skills.[67]
[67] Ibid Attachment F1a, 65 at [11].
He has not worked in Australia.[68] He has been living on Centrelink benefits, in prison and in detention.
[68] ibid 66 at [14].
He has done some limited volunteer work.[69]
[69] ibid at [15].
After his arrival in Australia, the Applicant met some Spanish speaking people from Latin America.[70] Some of these people have provided statements of support.[71]
[70] Ibid at [16].
[71] Ibid Attachment F2d, 117-9; Attachment F2e, 120-2.
His connection with these friends, such as it is, was necessarily generated over the brief period of 7 or so months, between his arrival in Australia and him being remanded in custody. They have offered him some support since his imprisonment.[72] There have been occasional visits and phone contact. However, I am not persuaded that his removal from Australia would have any significant impact on them.
[72] Ibid Attachment F1a, 66 -7 at [16]-[17].
None of them gave evidence.
One of these friends, Ms Y.R states:
“I understand Luis has pleaded guilty to sexual penetration of a child charge, and I'm pretty sure he is very sorry for what he has done.
My Name is Y. R. I am single mother of four. I have been studying Certificate Ill in English in [institution] actually. My children and J [sic] came to Perth on a resettlement program for refugees in May 2021. I'm originally from [country], where I got my bachelor's degree in Pedagogy Education.
Luis and I met at the Red Cross since July 2021. And he met another [nationality] friends too this same day. So, we took him in our group and since then we became good friends. We are both Latinos and, in our culture, we help each other.
He was as an uncle to my children, and always he shared with us in my children's birthday, Christmas, and every other special moment we had to celebrate as a family. My children always are asking for Luis and I tell him that he is working as FiFo and he is busy. They always says hello to Luis when he calls me.
Luis is a good person with good feelings, as a mother I would not allow him to be near my children if he were not such a good human being.
Many factors allowed this serious error, and with this sad consequence for everyone especially for the victim as well for Luis. In Hoduras culture, an adolescent physically does not have these heights and characteristics, the average height of a fully developed man is 1.69 according to statistics. This does not seek to justify the crime, only to understand it from the confusion and from past actions, since Luis has never had a minor partner.
Even though he has pleaded guilty for sexual penetration a child, I, Y.R will continue to trust and support Luis.”[73]
[73] Ibid Attachment F2e, 122.
In the absence of hearing from Ms. Y.R. I do not accept the passage highlighted above as being credible. It makes claims about the Applicant’s connection to her children which he does not even make himself.
The Applicant told the Tribunal that Y.R has 3 children. When questioned by the Tribunal about these children, the Applicant could name only the eldest boy. He thought that he was about 15 years old when he last saw him 2 ½ years ago. He could not name the next boy who he thought was about 6 years old when he last saw him 2 ½ years ago. He could not name the youngest, a girl, who he thought was about 5 years old when he last saw her 2 ½ years ago. I note that in Y.R’s statement, she says that she is a mother of four children.
He said that he had had some contact with these children before he went to prison and he had spoken to them occasionally on the phone, perhaps twice per month, since then.
Another friend, L.G, states:
“I have known Luis since October 2021, I met him through a person who helped us at the Red Cross, he introduced us from the first day we met him, he was super good with me and my family, we got to know many places because of him because he took us to know more about Perth. He liked helping the other Latinos who came in the same program as us so much because the language barrier made it difficult for him to communicate. My children are very fond of him and we were really surprised when we found out about his situation (dated 02.06.2023).[74]
and
I met Luis since October 2021 through a person who supports refugees in the Red Cross. Since then we became friends, we invited him to our house or sometimes he took us to see new places, he shared it with my children of 8 and 12 years at that time I even took care of them on 2 occasions that I needed since he always showed me to be a good person and my children have a lot of affection and trust in him (dated 14.11.2023).[75]”
[74] Ibid Attachment F2d, 118.
[75] Ibid Attachment F2e, 121.
When questioned by the Tribunal about these children, the Applicant could name the eldest boy. He thought that he was about 15 years old when he last saw him 2 ½ years ago. He could name the younger girl who he thought was about 12 years old when he last saw her 2 ½ years ago.
He said that he had had some contact with these children before he went to prison and he had spoken to them occasionally on the phone, perhaps twice per month, since then.
Another friend, A.L, states:
“I have known Luis Rodriguez since July 2021. We met at the Red Cross, almost a month after he had arrived in Peth from Honduras. He was alone in this country and could not speak a word in English. So, we took him in our group and since then, we became good friends We are both Latinos and, in our culture, we help each other. He was there for my son's birthday, Christmas, and every other special moment we had to celebrate as family. He is a very kind, and good person. I can't believe this has happened to him, to be honest.”[76]
and
“I have known Luis Fernando Rodriguez Torres since July 2021. We met at the Red Cross, almost a month after he had arrived in Peth from Honduras. He was alone in this country and could not speak a word in English. So, we took him in our group and since then, we became good friends We are both Latinos and, in our culture, we help each other. He attended my son's birthday, our Christmas dinner, and every other special moment we had to celebrate as family. He used to play with my kids aged 4 and 13 back then. He was always very kind to everyone and took good care of them.
It will sadden me if Luis can get back his visa, because I know his like will be at extreme risk if he must return to his country. I'm confident that he will take advantage of every opportunity given, and I will be there to support him on that.”[77]
[76] Ibid Attachment F2d, 119.
[77] Ibid Attachment F2e, 120.
When questioned by the Tribunal about these children, the Applicant could not name the boy. He thought that he was about 8 years old when he last saw him 2 ½ years ago. He could also not name the girl who he thought was about 12 years old when he last saw her.
He said that he had had some contact with these children before he went to prison and he had spoken to them occasionally on the phone, perhaps twice per month, since then.
No further evidence of any connection to these children was forthcoming. The Applicant’s evidence on this topic was obtained from the Applicant by the Tribunal.
The Applicant did not list any of these children in his statement of circumstances prepared on 7 September 2023,[78] nor in his Statutory declaration of 14 November 2023.[79]
[78] Ibid Attachment E, 46-63.
[79] Ibid Attachment F1a, 64-9.
The Applicant did not call any of the above-mentioned referees to give evidence.
I am not persuaded that the Applicant formed any special bond with the children mentioned in the statements above, during the 7 or so months between arriving in Australia, meeting them, and being remanded in custody. I am not persuaded that any electronic contact that he may have had with them since, is particularly significant. To the extent that such contact is, it can continue from Honduras.
He was in receipt of Centrelink benefits before he was imprisoned.
In my view the Applicant did not form any significant relationships with “Australian permanent residents, or people who have a right to remain in Australia indefinitely”, such that his removal would have any significant impact on them.
He also offended very soon after arriving in Australia. He has made virtually no positive contribution to our community and indeed has been a burden on it financially and as a criminal offender.
Conclusion: Primary Consideration 3
This consideration is neutral.
Primary Consideration 4: The best interests of minor children in Australia

Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant does not disclose any minor children in his Personal Circumstances Form.[80]
[80] Ibid Attachment E, 53-5.
His representative from Circle Green Community Legal provided written submissions dated 15 November 2023[81] and 22 May 2024,[82] but neither included any submissions with respect to minor children.
[81] Ibid Attachment F2a: Submissions by the Applicant’s representative – Written Submission, 99-111.
[82] Ibid Attachment F3a: Written Submissions of the Applicant’s representative, 135-140.
This topic is discussed above in the context of his ties to Australia. I repeat those observations.
That evidence, such as it is, was extracted by the Tribunal, not spontaneously volunteered by the Applicant.
Conclusion: Primary Consideration 4
Having regard to all of the above, primary consideration 4 is neutral.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[83]
[83] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s criminal record as set out in Annexure B
b.the other matters set out above
c.the Australian community has no tolerance of sexual offending against children.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) legal consequence of the decision:
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
Non-citizens covered by a protection finding:
Paragraph 9.1.1 of the Direction directs a decision-maker to take into account the following:
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
Non-citizens not covered by a protection finding
Paragraph 9.1.2 of the Direction directs a decision-maker to take into account the following:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
No protection finding has been made with respect to the Applicant.
The Applicant has not applied for a protection visa.
The Applicant claims that he has serious fears for his safety, if he were to be returned to Honduras, due to “political option [sic] and my membership of the LGBTQIA+ community”.[84] He told the Tribunal that he would be killed as soon as he arrives at the airport in Honduras.
[84] Exhibit 2, G-Documents, Attachment F1a, 67 at [20], 69 at [34].
I accept that the Applicant’s claims, if substantiated, may potentially engage Australia’s non-refoulment obligations.
It is, however, possible for the Applicant to apply for a protection visa. If he were to do so, his claims could be properly assessed, in detail.
In these circumstances I consider that it is appropriate to defer assessment of the Applicant’s concerns.[85]
[85] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [30].
In the absence of any protection finding or application, I am of the view that this other consideration is neutral.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 33 years of age. He says that he has no “medical or psychological conditions”.[86] This is also discussed above.
[86] Exhibit 2, G-Documents, Attachment F1a, 67 at [19].
The Applicant told the Tribunal that there was “no good health care” in Honduras, but he accepted that he was in the same position as other citizens in that regard.
He spent his formative years in Honduras. He left that country in about May of 2019, when he was aged 29, to claim asylum in the USA. His claim was rejected.[87] He returned to Honduras in September 2019. He may have tried to seek asylum in Mexico, (although he now denies this), but if he did, this was again rejected and he returned to Honduras.[88]
[87] Ibid 68-9 [31].
[88] Ibid.
The Applicant has lived most of his life in Honduras. He faces no language or cultural barriers there. He has family there.[89] He has friends and networks there, but he has chosen to disengage from them.
[89] Ibid Attachment E, 57.
If the Applicant’s story about his career as a journalist is true,[90] he may not be able to resume his former employment. This does not mean however, that he would be unable to obtain other employment.
[90] Ibid Attachment F1a, 67-9 at [20] – [35].
The Applicant may suffer some distress in being removed from personal contact with the few acquaintances that he made during his 7 months in the Australian community. He has however, literally a lifetime of contacts and networks in Honduras.
There is no evidence to suggest that he would not be able to access the same social, medical and economic support as any other citizen of his country.
Leaving aside his claims of being fearful about returning to Honduras, (dealt with above in the context of his possible protection claim), his impediments upon return are insignificant.
This consideration (b) is neutral.
(c) Impact on Australian business interests
Paragraph 9.3 of the Direction directs a decision-maker to take into account the following:
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.
There was no evidence on this topic.
This Other Consideration (d) is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs very heavily against revocation.
Primary consideration 2 is neutral.
Primary consideration 3 is neutral.
Primary consideration 4 is neutral.
Primary consideration 5 weighs very heavily against revocation
Other consideration (a) is neutral.
Other consideration (b) is neutral.
Other consideration (c) is neutral.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against a child are viewed very seriously by the Australian Government and the Australian community.
This offending is totally unacceptable. Even a slight risk of repetition, is too much.
It is necessary to weigh up all of the primary and other considerations.
It is plain from the summary above that the weight of Primary Considerations 1 and 5 is overwhelmingly against revocation.
In my view, as discussed, there are no considerations weighing in the Applicant’s favour.
Even if I was mistaken about this, and some slight weight were to be given, for example to the impediments that he would suffer if removed, the weight would still remain overwhelmingly against revocation.

In my view, the proper application of the Direction requires the Tribunal not to revoke the cancellation of the Applicant’s Visa.
I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

…………………[sgnd]……………………..
Associate

Dated: 23 August 2024

Date of hearing: 13 August 2024

Advocate for the Applicant:

Self-Represented

Advocate for the Respondent:
Ms Centaine Mumford
(AGS)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Respondent

Statement of Facts, Issues and Contentions

2

Respondent

G-Documents

3

Respondent

Tender Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court

Court Date

Offence

Court Result

Perth District Court of Western Australia

07.06.2023

Sexually Penetrated a Child over 13 and Under 16

IMPRISONMENT: 20 Months CONCURRENT FROM 07- FEB-2022.

Date of hearing:	13 August 2024
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Ms Centaine Mumford (AGS)

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions
2	Respondent	G-Documents
3	Respondent	Tender Bundle

Court	Court Date	Offence	Court Result
Perth District Court of Western Australia	07.06.2023	Sexually Penetrated a Child over 13 and Under 16	IMPRISONMENT: 20 Months CONCURRENT FROM 07- FEB-2022.