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

RTVK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4235 (21 December 2023)
Division:                  GENERAL DIVISION
File Number(s):2023/7365
Re:RTVK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 21 December 2023
Place:Sydney

The Tribunal affirms the decision under review.
...................................[SGD].....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – sexual intercourse with child – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – family violence – strength nature and duration of ties to Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 189, 196, 197C, 198, 499, 501, 501CA
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
21 December 2023
BACKGROUND

The Applicant was born in the Philippines in November 1976. He has lived in Australia since August 2015, and has departed on two occasions, in 2018 and 2019.[1] On 15 December 2017, he was granted a Class BC Subclass 100 Partner (Permanent) visa (the Applicant’s visa).[2]
[1] Ex 9, 61.
[2] Ex 9, 62.
On 21 June 2022, the District Court of New South Wales convicted the Applicant of Have sexual intercourse with child >=10 & 14 years (DV) and he was sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years.[3] The sentence gave rise to the Applicant not passing the character test under s 501(6)(a) of the Migration Act 1985 (Cth) (the Act). Accordingly, the Applicant’s visa was mandatorily cancelled on 17 August 2022.[4] Subsequently, the Applicant made representations to the Minister requesting revocation of the cancellation decision. On 2 October 2023, the delegate of the Minister decided not to revoke the visa cancellation.[5]
[3] Ex 9, 24.
[4] Ex 9, 7.
[5] Ex 9, 7-21.
On 7 October 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) provides:
(4) TheMinister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[6]
[6] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The preamble in Direction No 99 sets out the objectives[7] and the overarching principles[8] that provide the framework within which decision-makers should approach their task under ss 501 and 501CA.
[7] Direction 99 [5.1].
[8] Direction 99 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Respondent’s Facts, Issues and Contentions, filed on 20 November 2023 (Exhibit 1);
·The Applicant’s Statement, dated 19 November 2023 (Exhibit 2);
·Patient Health Summary of Ms S, the Applicant’s wife, dated 13 November 2023 (Exhibit 3);
·Letter from Ms S’ General Practitioner, dated 13 November 2023, (Exhibit 4);
·Statutory Declaration of Ms S, dated 13 November 2023 (Exhibit 5);
·SMART Recovery Attendance and Participation Form, undated (Exhibit 6);
·Letter of Support from Circuit Breaker Facilitator, undated (Exhibit 7);
·Respondent’s Tender Bundle, filed on 20 November 2023 (Exhibit 8); and
·G-Documents, filed on 19 October 2023 (Exhibit 9).
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The test is generally concerned with the protection of the Australian community from the risk of harm.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
It is not in dispute that the Applicant does not meet the character test. On 21 June 2022, the District Court of New South Wales convicted the Applicant of Have sexual intercourse with child >=10 & 14 years (DV) and he was sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years.[9] As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
[9] Ex 9, 24.
The issue before the Tribunal is whether there is another reason the cancellation of the Applicant’s visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[10] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[10] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[11]
[11] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[12] The Direction specifies the relative, but not the actual, weight to be given to those considerations. The Tribunal is obliged to examine the merits of the case and decide for itself.[13] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[14] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the individual case.[15] It is not the content of the Direction which determines the outcome of the decision, but rather it is the application by a decision-maker to the evidence and material in an individual case.[16]
THE PRIMARY CONSIDERATIONS
[12] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[13] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[14] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[15] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[16] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[17] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[18]
[17] Direction 99 [8.1(1)].
[18] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker.[19]
The seriousness of the Applicant’s conduct
[19] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The Applicant’s criminal history
The Applicant’s criminal history is outlined in the Agreed Statement of Facts[20] which was tendered without objection in the District Court of New South Wales.[21] It states:
1.    The offender … resides … with his wife [Ms S]. It is a three-bedroom house. [Ms S] brother … and his wife … live in one of the bedrooms.
2.    The victim … finished primary school at the end of 2020. Throughout primary school, she lived at the offender's house with her parents. She shared a bed with her parents.
3.    When she started high school in 2021, the victim moved out of the offender's home and into her paternal grandparents' home; however, she would come back to the offender's house on Friday and Saturday nights. On Friday nights, she slept in her parents' bed and on Saturday nights' she slept in her aunt and uncle's bed.
4.    On 1 June 2021, the victim wrote a letter to the Deputy Principal at her school indicating that her uncle (the offender) had penile-vaginal intercourse with her and she was worried that she was pregnant. The letter also states, ''The reason why I don't want my parents knowing is because I don't want to make so much chaos and I don't want to break apart the family." School staff contacted police and the victim was interviewed later that day.
5.    During the interview, it became apparent that, on a date between 7 January and 31 May 2021 when the victim was aged 12 years, the offender had taken her into his bedroom when no one else was around and engaged in penile-vaginal intercourse with her. She had never wanted to engage in sexual activity with the offender. The offender showed the victim his penis, and the victim observed that she saw 'white stuff' coming from the offender's penis. He then asked her for a tissue, which she gave him, and he wiped himself. The offender told the victim not to tell anyone because she would get in trouble, and it would break up the family. The victim then had a shower.
6.    This was not the first time the offender had penile-vaginal intercourse with the victim.
7.    The offender was arrested on 1 June 2021. He was not interviewed as police were unable to obtain a Filipino interpreter.
[20] Ex 8, 30-31.
[21] Ex 9, 25-35.
The Sentencing Court noted that the Agreed Statement of Facts “records however that this was not the first time the offender had penile vaginal intercourse with the victim, I note that it is not part of the offender’s case that this was an isolate event.”[22]
[22] Ex 9, 26.
The NSW Police Facts Sheet[23] refers to other charges which were later withdrawn.[24]
[23] Ex 8, 60-65.
[24] Ex 8, 76-77.
During the hearing and when discussing those charges, the Applicant agreed that:
·     Between January 2020 and May 2021, he rubbed the victim’s breast on top of her clothing.
·     Between January 2020 and May 2021, he laid next to the victim and kissed her underneath her clothing and sucked her breast.
·     Between January 2020 and May 2021, he removed the victim’s clothing and engaged in sexual intercourse. The victim was scared and screamed but he continued.
The Applicant agreed that he engaged in penetrative sexual intercourse with the victim on about 5 occasions, and that she had performed oral sex on him.
The Sentencing Court referred to the “inherent seriousness” of the Applicant’s offending. The Sentencing Court observed:
…The offender it is submitted on his behalf in written submissions had “no specific intent to breach the victims safety”. The difficulty with that submission is that it gain says a very substantial body of therapeutic and judicial opinion to the effect that offending of the present kind must be assumed to be damaging to a child. In a specific instance the child here was sufficiently anxious to complain in terms indicative of her anxiety that there may have been a risk of pregnancy. The offending was opportunistic, but in a setting where social boundaries should have been recognised as to which there is no excuse.
Familiarity and a relationship of a family basis provided a foundation of affection and trust in the victim. The offender abused both those aspects. I find that to be an aggravating feature. I have been addressed by the Crown on the question of whether the offending taking place in the home is an aggravating feature. Given the nature of the relationships involved, I give little weight to that factor, which, whilst present was inherent in the setting of any offence of the present nature conducted within a family very likely always to be within a household setting and often in the home itself.
The family living situation was also such as to provide an opportunity which the offender abused. Submissions have been made as to the offender’s prior good character, that fact is not to be eliminated in the present kind of offending, but it is one of less weight than in other kinds of offending. I agree that the effect of all material before the Court is to indicate that the risk of re-offending is relatively low, most particularly any re-offending of the present kind. I have noted previously a number of comments and assessments as to insight and contrition, both are present albeit in somewhat compromised degree.
…Upon all of the considerations arising from the state of the evidence, including that provided by the offender today on oath, I have come to the conclusion that the offending is at least at the mid-range of notional seriousness for offending of the present kind. It requires proportionate punishment, that punishment must take into account of a matter now well entrenched in common law, that is the harm that offending of the present kind must be assumed to do where it involves a young child. In the terms of s 3A of The Crimes (Sentencing Procedure) Act the Court must ensure, reflective of that aspect that the offender is adequately punished for his offence. It is an offence that can easily be committed within a family or other closed setting and for that reason there is a requirement for the general deterrence of all persons who may be minded to commit such a crime.
The stance of the Court must be that the community is to be protected from this offender and like offenders. The promotion of rehabilitation and rehabilitation of this offender is a matter to which some attention will be given but given his history of sound employment and an absence of any pathology or other behavioural indications of a propensity to offend, his needs for rehabilitation are not great or compelling, the offender must be made accountable for his actions. The sentence that I impose should be one that states a denunciation of his conduct and one that recognises the harm done to the particular victim and by conduct of the present kind to the community at large.[25]
[25] Ex 9, 32-33.

Mr Chafic Awit, Psychologist, provided a report, which referred to the Applicant’s claim that he did not know that the legal age of consent is 16 as in the Philippines, up until 4 March 2022, the legal age of consent was 12 years.[26] As noted by the Sentencing Court:
As to that, I have come to the conclusion that it was something of an afterthought in seeking to justify conduct that was otherwise more appropriately described, at least by way of inference, as driven by the offender’s own inability to control his lust and his libido. The question of any notional age of consent so called, either in this country or elsewhere in the setting of the present proceedings is frankly a red herring. It is axiomatic that ignorance of the law is no defence, nor is it an excuse. It is particularly not mitigating when, out of the offender’s own mouth, comes the statement that according to his upbringing it is “a sin” for there to be sexual intercourse between an adult and a person under the age of 18, to put it mildly, whether or not he had, with the familiarity precise terms of the criminal law in this country, a more sound knowledge than many people of the deeply immoral character of his actions.[27]
[26] Ex 8, 66-70.
[27] Ex 9, 31.
The Tribunal gives significant weight to the Sentencing Court’s conclusions about the Applicant’s claims about the age of consent. The Tribunal views the Applicant’s offending as a serious sexual crime against a child, and there is no excuse or justification for such conduct. The Applicant had no respect for, or appreciation of, social, familial, legal, or other significant boundaries. His offending breached trust and was motivated by his own sexual gratification and lack of self-control. The specific circumstances which make this an abhorrent offence include the age of the victim (12 years), the actual details of the offending (sexual intercourse, resulting in the victim fearing that she may be pregnant) and the sexual conduct occurring within a trusted family relationship. The seriousness of the offence is reflected in the sentence of imprisonment which was imposed. The Tribunal gives significant weight to the Sentencing Court’s imposition of a custodial sentence, which is an objective reflection of the seriousness of the Applicant’s offending. A term of imprisonment is the last resort in the sentencing hierarchy.
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
The Direction contemplates that 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.[28] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[29] The Tribunal needs to consider the likelihood and consequences of further offending.[30]
[28] Direction 99 [8.1.2(1)].
[29] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[30] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
The Respondent contended that the Applicant remains at risk of reoffending. The Respondent raised a number of matters in support of those contentions. The Respondent argued that the Applicant has shown limited insight into his offending, has had little engagement with rehabilitation, has refused to accept responsibility for his actions and blames his victim. The Respondent contended that any likelihood that such an offence may be repeated is unacceptable and the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant would involve significant physical and psychological harm to members of the Australian community.
The Applicant contended that he would never reoffend. During the hearing, he was adamant that such behaviour would never happen again. He stated that he wants to be given another chance and wants a future with his wife. He apologised for his conduct and asked for forgiveness.
The Tribunal is not reassured by the Applicant’s promises or stated intentions. During the hearing, the Applicant engaged in what the Tribunal considers to be victim blaming. He made statements such as the victim wanting the sexual encounters, the victim was flirting with him and otherwise stated that she should not have slept in the room with him and his wife. Those kind of statements suggest to the Tribunal many things, including fundamental lack of insight, lack of genuine remorse and acceptance of wrongdoing, limited rehabilitation and a lack of understanding that a 12-year-old child does not have the capacity to consent, all of which are relevant to the risk of reoffending. The Applicant’s failure to appreciate that he was the older person, a member of the family placed in a position of trust and meant to be caring for the victim, reflects poorly on the Applicant’s ability to appreciate social, legal and other norms.
The Applicant’s poor insight into his offending is referred to in a report by Mr James Kyle, Community Corrections Officer, dated 8 June 2022.[31] Mr Kyle made the following observations:
[The Applicant] appeared unable to grasp the severity of his offending behaviour and lacked insight into his actions.
He largely attempted to victim blame throughout, stating his niece was interested in having intercourse with him and was overly affectionate.
He accepted he was the adult and should have known better, however stated he had a lapse in judgement and thought his niece enjoyed having intercourse with him as she appeared to enjoy herself.
When challenged regarding the victims age, [the Applicant] stated that he should have used better judgement, however further victim blamed and stated that the victim took advantage of him whenever his wife was not in the room…
…He continuously minimised his offending by stating that his niece often chose to sleep in his bed in between himself and his wife, because she liked being close to them.[32]
[31] Ex 8, 32-35.
[32] Ex 8, 33.
There is no evidence before the Tribunal of the Applicant having a paraphilic disorder. There are reports, including a Static-99R risk assessment, which placed the Applicant at a ‘Below Average Risk Category’,[33] and a Level of Service Inventory (LSI-R) assessment, which assessed him at a low risk of re-offending.[34]
[33] Ex 8, 34.
[34] Ex 8, 35.
The Tribunal notes the conclusions of the Sentencing Court that the Applicant was likely to be at a low risk of reoffending. However, the Sentencing Court remarked:
…there is an unfortunate persistence through the report in the offender’s attitude that in some-way this was the outcome of activities between two equals. Even the statements of contrition today where he reflected that he was the adult, carried with them the implication that the two of them were in the wrong needs to be stated, without qualification, there was only one person that was committing a criminal offence here and that was the adult. This was not just a matter of bad judgment, it was a matter of the offender engaging his lust above not just his better judgment but, what he has told the Court in evidence was his own moral training.[35]
[35] Ex 9, 28.
The Sentencing Court noted that:
…[The Applicant] speaks generally in a rather self-focused and selfish manner of giving way to those urges and again his explanations such as they are certainly in the Sentence Assessment Report do him no credit. I agree with Mr Kyle that on the face of what I take to be accurately recorded, interactions of the offender appears to deflect blame for his actions and certainly in the interchanges of Mr Kyle, indicated minimal insight.[36]
[36] Ex 9, 29.
There is limited evidence of rehabilitation achieved by the Applicant. In his report, Mr Awit[37] concluded that there was a below-average risk of recidivism.[38] Mr Awit recommended a treatment plan for the Applicant, including behaviour therapy, counselling, and a sex offender’s treatment group.[39] The Tribunal accepts the evidence that the Applicant has been participating in a SMART Recovery Australia course[40] and a Circuit Breaker 10-week anger management course.[41]
[37] Ex 8, 66-70.
[38] Ex 8, 68.
[39] Ex 8, 70.
[40] Ex 6.
[41] Ex 7.
The Tribunal acknowledges the Applicant’s participation in those courses, but it is difficult to see the impact, if any, of the courses undertaken by the Applicant on the risk of recidivism. Viewed in the context of the Applicant’s limited insight and persistence in victim blaming, the Tribunal is satisfied that there is a real risk, even if it is a ‘low’ risk, that the Applicant would reoffend, and given the seriousness of the offending, a low risk of recidivism is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[42]
[42] Direction 99 [8.2(1)].
Family violence is defined by Direction 99 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Direction 99 provides non-exhaustive examples of family violence, including assault, stalking, and intentionally damaging or destroying property.[43]
[43] Direction 99 [4(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[44]
[44] Direction 99 [8.2(3)].
Direction 99 defines ‘member of the person’s family’, for the purposes of the definition of family violence, as a person who has, or has had, an intimate personal relationship with the relevant person. The phrase should not be construed narrowly.[45]
[45] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 [124].
The Applicant’s conduct relates to family violence. The conviction for Have sexual intercourse with child >=10 & 14 years (DV), relates to the Applicant’s 12-year-old niece. The Applicant and his niece are members of each other’s family, given their familial relationship as uncle and niece and their co-habitation arrangements.
As discussed earlier, the Statement of Agreed Facts refers to the matter of which the Applicant was convicted as not being the first or only time. On his own evidence, the Applicant has engaged in sexual intercourse and other intimate sexual conduct with the victim on various occasions. The Tribunal accepts the Respondent’s submissions that the Applicant’s sexual conduct amounts to ‘family violence’ because it involves ‘sexual assault or other sexually abusive behaviour’.[46] The Applicant’s sexual conduct is a form of family violence that caused the victim to be fearful. He in fact threatened her not to tell; he sought to engage in coercion and control of the victim, including by seeking to silence her with threats that if she spoke up it would break up the family.[47]
[46] Direction 99 [4(1)].
[47] Ex 8, 31.
The Tribunal views the Applicant’s family violence very seriously and as such this consideration weighs heavily against revocation.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that 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. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[48]
[48] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has been in Australia since 2015, at the age of 38. He did not spend his formative years in Australia. Previously, he lived and worked in the Philippines and Saudi Arabia. He worked in Australia, including in a warehouse between 2016 and 2021.[49] On 29 June 2013, the Applicant married an Australian citizen whom he had met in 2011.[50] Other than his wife, he has no family in Australia; the Applicant’s parents and 5 siblings live in the Philippines.
[49] Ex 9, 55.
[50] Ex 9, 48.
During the 8 years that the Applicant has been in Australia, he spent almost 2 and half years in custody and in immigration detention. In her Statutory Declaration dated 13 November 2023,[51] Ms S referred to having diabetes and to her need for the Applicant to assist with her daily care. She referred to working in a shop three times a week and noted the assistance she receives from her family. She stated that it is impossible for her to survive without the Applicant. The Tribunal notes that in a Statement to the District Court of New South Wales dated 16 June 2022,[52] Ms S indicated that she would return to the Philippines with the Applicant if he were to be deported. Ms S also referred to the Applicant’s offending causing division in the family stating that there was “lots of tension and some split. This has also been difficult for us within our community and people stop being friends and shun us”.[53]
[51] Ex 5.
[52] Ex 8, 74.
[53] Ex 8, 74.
Although Ms S attended the hearing via telephone as a support person, she chose not to give oral evidence. She was given the opportunity to give evidence via the telephone or in-person, but she declined. The reason which was given as to why she could not attend the Tribunal was due to her medical conditions. There are documents provided in support of her medical conditions, including asthma, hypertension, and diabetic retinopathy,[54] but those documents do not suggest that she is not able to give evidence in a hearing. There is an inconsistency in the Applicant’s evidence about whether Ms S works. He initially gave evidence that she was unable to work but stated that she was working 7 days a week. The Tribunal has not used the inconsistency in an adverse manner to the Applicant. The Tribunal is however not persuaded by the given explanations about Ms S’s choice not to give oral evidence. Her written statement and Statutory Declaration have not been tested before the Tribunal, leading the Tribunal to give limited weight to her written evidence.
[54] Ex 3 and 4.
Under those circumstances, the Tribunal gives this consideration limited weight in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[55]
[55] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has not identified any minor children whose best interest would be impacted by the decision.
The Tribunal has considered the best interest of the victim, who is the Applicant’s niece and a minor. Although there is evidence before the Tribunal that the victim was fearful and anxious,[56] this is in relation to the offending. There is no direct evidence regarding the victim’s best interests in relation to the revocation of the mandatory cancellation decision.
[56] Ex 9, 32.

On balance, the Tribunal gives this consideration neutral weight.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[57]
[57] Direction 99 [8.5(2)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[58]
[58] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[59] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[60] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[61]
[59] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[60] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[61] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[62] that it is not for the decision-maker to make his or her own assessment of the community expectations,[63] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[64] In essence, the judgment is authority for the proposition that it is not the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[65]
[62] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[63] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[64] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[65] FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Tribunal is satisfied that the Applicant has been convicted of a serious offence involving family violence. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancellation of the Applicant’s visa because his conduct is serious and he did not spend his formative years in Australia.
The Tribunal gives this consideration significant weight against revocation.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to 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).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
The Applicant has not raised, and there is no evidence before the Tribunal, of any protection claims. The Tribunal however observes that in her Statement dated 16 June 2022,[66] Ms S refers to the Applicant’s family in the Philippines being “very poor”. On the evidence, the Tribunal is not satisfied that any such a claim would mean that there is a real chance or a real risk of serious or significant harm facing the Applicant on this basis on his return to the Philippines.
[66] Ex 8, 74.
On the evidence, the Tribunal finds that the Applicant is not the subject of a protection finding, as defined in s 197C(5) of the Act, and as such the legal consequence of the Tribunal making a non-revocation decision is that the removal obligation in s 198 will apply and the Applicant will continue to be detained under ss 189 and 196 of the Act until he is removed.
Mr Awit stated in his report that the Applicant’s symptoms meet the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressive Symptoms.[67] Although detention and removal are lawful consequences, the Tribunal is satisfied that the Applicant would face a period of detention, and that it is plausible that this would have an adverse impact on his mental health.
[67] Ex 8, 69.
The Tribunal therefore gives this consideration some weight in favour of revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 47 years old and he has been in Australia since August 2015. He has not spent his formative years in Australia. There are no linguistic or cultural barriers, in case of his return to the Philippines. The Applicant’s parents and siblings live in the Philippines.
During the hearing, the Applicant stated that his wife provides him with emotional support and that he does not know that if she would return with him to the Philippines. He said that his family will not give him support in case of his return to the Philippines, as he is the eldest. As mentioned earlier, the Tribunal notes and accepts as plausible that the Applicant’s family in the Philippines is very poor, which would limit the family’s capacity to assist the Applicant financially. The Applicant gave evidence that he keeps in contact with his family in the Philippines, suggesting continued connections, although he contended that his emotional support is derived from his wife.
As mentioned previously, in a Statement to the District Court of New South Wales dated 16 June 2022,[68] Ms S indicated that she would return to the Philippines with the Applicant if he were to be deported. Ms S also referred to the Applicant’s offending causing division in the family stating that there was “lots of tension and some split. This has also been difficult for us within our community and people stop being friends and shun us”.[69]
[68] Ex 8, 74.
[69] Ex 8, 74.
Ms S attended the hearing via telephone as a support person, but she chose not to give oral evidence. The Tribunal did not have the opportunity to discuss with Ms S her views or intentions. For the stated reasons, the Tribunal gave limited weight to her written statement and Statutory Declaration. On the material before it, the Tribunal does not know whether Ms S would return to the Philippines with the Applicant and that it is plausible that she may not return with him.
The Applicant has lived in the Philippines for the majority of his life. He graduated from high school in the Philippines. He then did a two-year course and obtained a trade qualification of a fitter machinist in Manila. He was employed as a fitter machinist in Manila and Saudi Arabia. He also worked in his mother-in-law’s restaurant in Manila.[70] The Tribunal is satisfied that the Applicant has relevant skills, experience, and qualifications which would assist him in obtaining suitable employment in the Philippines.
[70] Ex 8, 67.
The Applicant has been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressive Symptoms following his incarceration, but he has no history of mental illness.[71] Since 2016, he has had Type 2 diabetes, for which he receives Metformin.[72] He also suffers from gout and dyslipidaemia. Currently, he is on remission from gout. His regular medications include Allopurinol and Rosuvastatin.[73]
[71] Ex 8, 68.
[72] Ex 8, 128.
[73] Ex 8, 128.
In consideration of the evidence as a whole, the Tribunal is satisfied that in case of the Applicant’s return to the Philippines, there would be practical challenges, including finding accommodation, employment, medical/mental health care services, emotional support, and the need to re-establish himself. The Tribunal has considered the Applicant’s circumstances and is satisfied that there are impediments, but they are not insurmountable, given his age, skills set, and personal circumstances.
On balance, the Tribunal gives this consideration some weight in favour of revocation.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[74]
[74] Direction 99 [9.3].
There is no evidence of the impact of the decision on victims, and as such, the Tribunal gives neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that 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 is no evidence of any impact on Australian business interests if the Applicant is not allowed to remain in Australia.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
There are limited considerations in favour of revocation, and the aspects against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, the conduct engaged in constituted family violence, as well as the expectations of the Australian community, weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the legal consequences of the decision, and the extent of impediments if removed, are considerations that weigh slightly in favour of revocation. The Tribunal is satisfied that on balance, the cumulative weight of the considerations in favour of revocation does not outweigh the significant cumulative weight of the considerations weighing against revocation.
The Applicant has repeatedly committed sexual offences against a minor, who is his niece. The Tribunal finds that kind of offending to be abhorrent. The Applicant demonstrated a fundamental lack of insight and self-monitoring behaviour, as well as a lack of appreciation of legal, social and other important boundaries. His conduct also amounts to family violence against a minor. The Tribunal found his victim-blaming to be serious.
For the stated reasons, the Tribunal has found that there is a real risk of re-offending, which is unacceptable given its seriousness.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

102. I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

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

Dated: 21 December 2023

Date of hearing(s):

13 December 2023

Applicant:

Self-represented

Solicitor for the Respondent:

Mr J Hutton, Australian Government Solicitor

[2023] AATA 4235

21 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing(s):	13 December 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr J Hutton, Australian Government Solicitor