RXDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2881
•11 August 2020
RXDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2881 (11 August 2020)
Division:GENERAL DIVISION
File Number: 2018/3528
Re:RXDD
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Tigiilagi Eteuati
Date:11 August 2020
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...........................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category visa – Applicant does not pass character test –– whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked – consideration and application of Ministerial Direction No 79 –– decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
11 August 2020BACKGROUND
This is an application by RXDD (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister” or “the Respondent’) on 23 May 2018 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category visa.
The Applicant first arrived in Australia in 2000 and stayed here for about 15 months, departing in 2002. The Applicant next spent about two months in Australia between April and June 2002. The Applicant’s twin daughters were born in mid-2004 in New Zealand. He arrived in Australia in October 2007 with his twin daughters and was granted a Class TY Subclass 444 Special Category visa. This was the visa that was cancelled by the Minister. The Applicant was 34 years of age on his last arrival in Australia.
The Applicant met his wife in around 2012 or 2013 and they were married in mid-2014. She had children from a previous relationship. She had two adult children and three minor children. Her daughter was the same age as the Applicant’s twin daughters. She has two sons who are younger than her daughter.
On 22 September 2017 the Applicant was convicted of three counts of “indecent treatment of children under 16 child under 12 years lineal Descendant/guardian/carer-domestic violence offence” (“indecent treatment offences”). He was sentenced to 12 months imprisonment for these offences to be suspended for two years upon serving three months imprisonment.
On the same day, the Applicant was convicted of “observations or recordings in breach of privacy-domestic violence offence” (“observation offence”). The Applicant was sentenced to three months imprisonment for this offence to be served concurrently with the 12-month sentence.
The victim of the offences was the Applicant’s stepdaughter. It is unclear when, exactly, the indecent treatment offences occurred. It is clear all three offences occurred on the same date, sometime between January 2014 and January 2016 when the victim would have been between 10 and 12 years of age.
The observation offence would have occurred when the victim was 12 years old.
On 27 October 2017, while the Applicant was still in prison, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of 12 months and was serving a full-time term of imprisonment.
On 28 November 2017, the Applicant sought that the cancellation decision be revoked.
On 8 May 2018 the Applicant departed Australia for New Zealand voluntarily.
On 23 May 2018, the Minister refused to revoke the cancellation of the Applicant’s visa.
On 22 June 2018, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 15 April 2019. For the reasons below, the Tribunal has decided to affirm the decision under review. The Tribunal considers that this is the correct decision in this case.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that ‘may’ in s 501CA(4)(b) means ‘must’. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
[Emphasis in original]
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A19 and the document tendered into evidence by the Respondent and marked as exhibit R1. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
A summary of evidence of witnesses is provided below from paragraph 44 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
A National Police Certificate for the Applicant dated 25 January 2018 shows the following offences committed by the Applicant:
Court Court Date Offence Court Result Brisbane District Court 22 Sep 2017 Indecent treatment of children under 16
child under 12 years
lineal descendant/guardian/carer-domestic violence offence
(3 Charges)
On all charges
conviction recorded
sentence imprisonment:
12 months to be suspended for 2 years after serving three months
Observations or recordings in breach of privacy-domestic violence offence
Conviction recorded
sentence imprisonment:
3 months
all sentences to be served concurrently
A New Zealand Police Certificate for the Applicant dated 9 April 2018 shows that the Applicant committed six relatively minor offences in New Zealand between 1991 and 2002 and had a further six traffic convictions between 1989 and 1998.
I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 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.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing.
Background
The Applicant is a 47-year-old who was born in New Zealand. The Applicant’s first trip to Australia was in December 2000. On that occasion he remained in Australia for about 15 months. The Applicant returned for about two months in 2002 before departing in June 2002. He last arrived in Australia in October 2007 with his twin daughters who would have been about three years old at the time. The Applicant was 34 years old at the time.
It appears that the Applicant has always been gainfully employed in Australia. He has provided letters from former employers in Australia indicating that the Applicant was a valued employee. The Applicant has also provided the Tribunal with a letter from his employer in New Zealand who indicated that the Applicant is a very good employee. The Applicant has also performed volunteer work in Australia.
The Applicant met his wife around 2012 or 2013 at church. They married in mid-2014 after they had already moved in together. The couple moved into a house that the Applicant had bought with his parents. At the time of the offending, it appears that the house had been divided into a dual occupancy. The Applicant’s parents and two of their grandchildren, including one with a disability lived on the top floor. The Applicant, his wife, his two daughters, the wife’s daughter, and the wife’s two sons lived on the bottom floor.
The Applicant returned to New Zealand in May 2018 after he had served the non-parole period of his sentence. He has remained there since.
Offending
On 22 September 2017 the Applicant pleaded guilty and was convicted of the three indecent treatment offences. This offending was said to have occurred between January 2014 and January 2016 when the victim, the Applicant’s wife’s daughter, would have been between 10 and 12 years old.
The sentencing judge described the Applicant’s offences as follows:
“Counts 2, 3 and 4 occurred on the one day in 2014 or 2015. One evening, you and [redacted], her [redacted] and your [redacted] were watching TV in the lounge room. You were watching a movie. You were all seated on different pieces of furniture - a futon bed, beanbags and lounge suites. You were seated next to your [redacted] who was aged between [redacted] and [redacted] at the time. She was born in [redacted]. [redacted] the other side of where you were sitting, immediately next to you, was one of [redacted]. She was very young as well.
About halfway through the movie, you touched the complainant’s vagina over her clothing for about five seconds - count 2. You then touched her buttocks area over her clothes - count 3. Then you touched her breast area over her clothing for about five seconds. She immediately moved your hand away and asked you to stop. On hearing that, her mother [redacted] paused the movie and the complainant immediately told her what you had done. Naturally, her mother was very angry and upset. That matter was later reported to the police.
Some months later, the same complainant girl was in the bathroom getting ready for a shower. She was naked at the time. She looked at the window. It was open. You were outside looking in at her. You did that for about 10 seconds. Unsurprisingly, she was shocked and quickly closed the window. She had a shower, got changed and then told her mother what had happened. Her mother confronted you, but you denied it. You also denied to the police that you had touched the complainant on that previous evening. You told the police that you were affected by alcohol on the night concerned. You may have been.
Your behaviour was disgraceful. The complainant was between [redacted] and [redacted] years old. She was [redacted] when you looked at her naked in the bathroom and she was [redacted], [redacted] or [redacted] when you indecently touched her, so brazenly, in the lounge room while [redacted] and the other [redacted] were present, near you.
Any sexual offence involving a child is very serious.
I cannot imagine what possibly came over you, to think that you could touch the little girl in the indecent way that you did. Not just momentarily. You touched her vaginal area over her clothing for five seconds. Then you touched her buttocks and then her breasts - all over her clothing. To the little girl’s credit, she moved your hand away and told you to stop and then alerted her mother.
…
I accept this was not planned behaviour; it was spur-of-the-moment behaviour. It was unusual, perhaps bizarre, behaviour, but disgraceful behaviour.
…
Mr [redacted] submitted that probation was appropriate with no conviction being recorded. I cannot accept that submission. At 39 to 42 years of age, as you were at the time, albeit affected by alcohol, to have acted in this way, I think, justifies a prison term. That is what the order will be today.”
The Applicant has given various explanations for the indecent treatment offences both during the hearing before the Tribunal, and in documents provided to the Department and the Tribunal.
One explanation given was that the Applicant had been drinking alcohol while he was taking certain medication. The Applicant explained that the combination of alcohol and medication had the effect that he was asleep at the time and could not remember the offences.
The second explanation given was that the Applicant had been somewhat intoxicated by the combination of alcohol and medication and that he thought he was touching his wife rather than his stepdaughter. According to this explanation, the Applicant was aware of what had happened and was not sleeping. At the hearing he indicated that he had thought that he was rubbing his wife’s leg in a comforting and non-sexual manner. In the psychologist report, the psychologist stated:
“While a complete review of his psychosocial functioning is provided above, there are no marked elements that can explain the offences. Rather, it is probable that he became somewhat intoxicated (and when combined with fatigue and his below average intelligence), he mistakenly engaged in the index offences.”
However, the psychologist went on to note:
“While beyond the expertise of the writer, [Applicant’s name]’s explanation that his behaviour may be due to taking a double dose of anti-anxiety medication (e.g., Zoloft) may not be entirely plausible. However he acknowledged having a past history of “sleep walking” that could be a contributing factor.”
It is not clear to the Tribunal what the psychologist means by saying that it is probable that the Applicant “mistakenly engaged” in the offences. Whether he means that the Applicant intended to touch his wife in a sexual manner but mistakenly touched his stepdaughter in that way, or whether he means that he intended to touch his wife in a non-sexual comforting manner but mistakenly touched his stepdaughter in a sexual way.
The Tribunal rejects both explanations provided by the Applicant, that is, that he was asleep during the offences and was unaware of what he was doing, and that he was aware of what he was doing but that he thought that he was rubbing his wife’s leg in a comforting manner. The psychologist indicated that the sentencing of the Applicant was reflective of a lack of intent associated with the offences. The Tribunal simply does not read the sentencing judge’s remarks in that way. Indeed, the sentencing remarks are inconsistent with any argument about mistaken touching. They are more consistent with the view that there was intentional sexual touching of the stepdaughter. This is indicated by the sentencing judge’s reference to the conduct constituting indecent treatment offences as “disgraceful”, that the Applicant “…indecently touched her, so brazenly…”. The sentencing judge also referred to the offences as sexual offences involving a child. The sentencing judge used language inconsistent with unintentional or mistaken non‑sexual touching. As mentioned above, the sentencing judge remarked:
“I cannot imagine what possibly came over you, to think that you could touch the little girl in the indecent way that you did. Not just momentarily. You touched her vaginal area over her clothing for five seconds. Then you touched her buttocks and then her breasts - all over her clothing. To the little girl’s credit, she moved your hand away and told you to stop and then alerted her mother.
…
I accept this was not planned behaviour; it was spur-of-the-moment behaviour. It was unusual, perhaps bizarre, behaviour, but disgraceful behaviour.”
As indicated in the sentencing remarks, while the Applicant was indecently touching his young stepdaughter, she protested. The Applicant’s wife stopped the movie they were watching and confronted the Applicant. His wife was very angry and upset. Despite this, only some months later the Applicant decided to observe the same victim through a window while she was in the bathroom naked. However, the Applicant insisted that there was nothing sexually perverted about doing so.
The Applicant indicated that, for some unexplained reason, he had not had a shower for some two days prior to the observation offence. On the evening in question, the Applicant indicated that his stepdaughter, the victim of his previous indecent treatment offences, was taking a long time in the bathroom in circumstances where he wanted to have a shower. He said that he exited the house for some unrelated reason and on return to the house he decided to momentarily look into the bathroom window to find out what his stepdaughter was doing in the bathroom as she had been in there for some time.
This explanation again appears to be inconsistent with the sentencing judge’s remarks. While the Applicant indicated that he looked in the window only momentarily, for perhaps two seconds, the sentencing judge indicated that the Applicant had been staring into the window at his naked stepdaughter for about 10 seconds. While the Applicant admitted at the hearing that he had looked at his stepdaughter while she was in the bathroom, the sentencing judge’s remarks indicated that when confronted by his wife, the Applicant denied having done so.
The Applicant indicated that if he was allowed to return to Australia he would never reoffend. He indicated that his offences were a result of a series of inadvertent mistakes. He said that the indecent treatment offences were influenced by the combination of alcohol and medication. He said that he had attended to Alcoholics Anonymous meetings while in detention to help address his alcohol consumption. He said that while he still consumes alcohol, that he does so responsibly.
The Applicant said that he had close ties with many people in Australia including his twin daughters, his parents and his wife. He indicated that he also has a brother, two uncles, three aunts and two cousins in Australia. The Applicant has one brother who lives in New Zealand.
The Applicant indicated that he shares ownership of a property with his parents. His parents live in that property, as had the Applicant before he left Australia. He said that he assists his parents in making mortgage repayments.
The Applicant indicated that when he left Australia, he had planned for his daughters to return to New Zealand with him. The Applicant indicated that his daughters had been convinced by others to remain in Australia. They currently live with and are cared for by the Applicant’s elderly parents.
The Applicant indicated that, while he was still technically married to his wife, the marital relationship had ended and he did not foresee that the relationship would be rekindled.
The Applicant indicated that if the cancellation of his visa was revoked, he intended to remain resident in New Zealand. He said that he wished for the cancellation of the visa to be revoked so that he could visit family in Australia. The Applicant indicated that his parents were now in their later years and he was concerned that he would not be able to attend their funerals when they passed. The Applicant also indicated that he wished to visit his daughters in Australia so that he could provide them with love and guidance here.
The Applicant indicated that he understood that while his daughters could visit New Zealand, that he could have no contact with them in New Zealand. He indicated that his daughters visited him in 2018 but that Child Services visited him and told him that he could not have contact with the girls because of his criminal offending in Australia. The Tribunal gave the parties leave to file additional material and submissions after the hearing in relation to the Applicant’s ability to have contact with his daughters both here and in New Zealand. The Tribunal received submissions from both parties after the hearing. In addition, the Respondent provided the Tribunal and the Applicant with a copy of a report from the New Zealand Ministry for Children.
That report indicated that New Zealand police visited the Applicant in New Zealand as they had become aware that the Applicant had been removed from Australia due to sexual offending against his stepdaughter. The police identified that one of the Applicant’s two daughters was staying with him in a one-bedroom hostel apartment at the time of the visit. The police notified Child Services that they had been concerned for the Applicant’s daughter as the Applicant had committed child sexual offences against this stepdaughter, and his daughter, who was the same age as the victim, was staying with him in a one‑bedroom apartment. The police also indicated that they were concerned that the Applicant’s then 14-year-old daughter was been left in the hostel alone while her father worked during the day.
A childcare officer from Child Services contacted the Applicant and raised with him the concerns identified by the police. The childcare officer suggested that in circumstances where the Applicant had been charged with sexual offences against his stepdaughter, and that his 14-year-old daughter was being left alone at a hostel while the Applicant worked, perhaps it was best that his then 14-year-old daughter stay with her mother until she departed New Zealand for Australia. The report indicated that the Applicant begrudgingly agreed with the suggestion and that his then 14-year-old daughter went to stay with her mother pending her departure.
The report provided to the childcare officer by the police indicated that part of the Applicant’s conditions of release were that he advised police of any children under 16 residing with him. Any conditions for release would have been imposed in Australia by Australian authorities. Therefore, presumably the obligation imposed by Australian authorities was an obligation for the Applicant to report to Australian police any children under 16 residing with him in Australia.
The Tribunal notes that despite the Applicant’s assertions, it is clear from the report that neither the New Zealand police nor Child Services indicated that it was unlawful for the Applicant’s children to visit him. Given the circumstances in which the Applicant was living in a one-bedroom hostel room with his then 14-year-old daughter, and leaving her alone at the hostel while he worked, Child Services in New Zealand suggested that it was best for his daughter that she reside with her mother on that occasion.
It appears that if the Applicant was allowed to return to Australia, and he was to reside with his daughters during that visit, he may be required to notify the police. Tribunal notes that the Applicant’s daughters are now both 16 so perhaps the requirement has ended so far as it relates to them. However, at the hearing, the Applicant indicated that he had heard that the “law had changed” so that he would be required to report contact with any child under the age of 18.
The Tribunal finds that the Applicant’s daughters would be able to visit him in New Zealand. The Tribunal finds that whether they would be able to reside with him during the visits would depend on an assessment done by the New Zealand authorities. The Tribunal notes that the Applicant’s daughters’ mother lives in the same city as the Applicant so presumably the children would be able to stay with their mother if they were not allowed to reside with their father during visits.
The Tribunal finds that if the Applicant is allowed to return to Australia, that he would be allowed to visit his daughters. The material indicates that he would be allowed to reside with them during visits so long as this was reported to police.
The Tribunal has considered all letters in support of the Applicant including those provided by each of the Applicant’s parents and his Australian brother. Those letters indicate that the Applicant’s offending was out of character. They indicate that the Applicant is very close with his family members in Australia. The letters indicate that before the Applicant’s imprisonment and his departure from Australia, he played a central role in providing assistance and support to his elderly parents. The Applicant pays half of the mortgage for the property where the Applicant’s parents reside. The Applicant’s parents currently care for the Applicant’s twin daughters. The Applicant’s parents also care for another adult granddaughter who is mentally impaired. The letters indicate that the Applicant had previously assisted his parents with maintaining household affairs.
The Tribunal has also considered a letter from the Applicant’s twin daughters which indicates how difficult it has been for them without their father. The letter outlines the obviously important role that the Applicant has played in their life and indicates that the girls need their father’s continued presence in their life.
The Tribunal has also considered a short statement apparently made by the victim of the Applicant’s offending. The letter indicates that the factual circumstances relating to two of the three indecent treatment offences were incorrect. It is difficult to know how to deal with the statement. The Respondent solicitor graciously, and in the Tribunal’s view properly, indicated that the Respondent would not require the victim of the Applicant’s offending for cross examination. The Tribunal was therefore not able to verify that she had made these claims and that they were true.
In any event, the Applicant pleaded guilty to all three indecent treatment offences, and he was convicted of these offences. Obviously, the sentencing judge proceeded on the basis that the factual circumstances alleged by the prosecution giving rise to all three offences had occurred. The Tribunal cannot go behind the Applicant’s criminal convictions or the material facts upon which those convictions are founded: HZCPvMinister for Immigration and Border Protection [2019] FCAFC 202.
Applicant’s wife
The Applicant’s wife provided numerous statements to the Department and the Tribunal. She also gave evidence during the hearing before the Tribunal.
It is apparent to the Tribunal that the Applicant’s wife has been the driving force behind this application. It is apparent that she has spent much time and effort preparing material and submissions and organising for the Applicant to appear before the Tribunal by video from New Zealand.
The Tribunal accepts that the Applicant’s wife dearly wishes for the Applicant to be able to return to Australia. The Tribunal observed that the Applicant’s wife was visibly angry and upset when the Applicant gave evidence that he considered that the marital relationship had ended and that he wished to remain resident in New Zealand rather than Australia.
The Tribunal accepts the Applicant’s wife’s evidence that the Applicant had provided love and support to his wife and her children when he was in Australia. The Tribunal accepts that this extended to both financial and emotional support. The Tribunal accepts that the Applicant’s wife loves him dearly and wishes for their marital relationship to be rekindled despite the Applicant’s apparent lack of interest in that occurring.
The Applicant’s wife indicated that her daughter, the victim “would not be comfortable coming face to face with” the Applicant. The Applicant’s wife indicated that she had not insisted on her daughter speaking with her about the offending as her daughter was not comfortable speaking with her about it.
She indicated that if the Applicant was allowed to return to Australia, she would leave the victim at home while she visited the Applicant to ensure that they had no contact.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision‑makers should 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, subparagraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
The nature of the Applicant’s offending is as outlined in the sentencing judge’s remarks. He indecently touched his stepdaughter who was between 10 and 12 years of age. He later peered in at her through a window when she was naked in the bathroom. He did so when he was in a parental role in relation to her, in circumstances where he had a duty to protect her.
It is apt to describe the offences, at very least the indecent treatment offences, as sexual offences. It is perhaps less apt to describe the offences as violent offences although the Tribunal notes that the indecent treatment offences require the treatment to otherwise amount to assault in order to be made out. In any event, the Direction indicates that sexual crimes are viewed very seriously.
The Direction also indicates that offences committed against vulnerable members of the community are serious. The Tribunal considers that the victim of the Applicant’s crimes, a girl between the ages of 10 and 12, was a vulnerable member of the community. This is especially so given that the crimes occurred within the victim’s home and were perpetrated by a person charged with the victim’s care.
The Applicant was sentenced to 12 months imprisonment for each of the three indecent treatment offences to be suspended for two years after serving three months imprisonment. The Applicant was also sentenced to three months imprisonment for the observation offence. All these sentences were to be served concurrently. Therefore, the effect of sentence was 12 months imprisonment to be suspended for two years after serving three months imprisonment. The sentencing judge rejected the Applicant’s argument that exceptional circumstances existed to justify the imposition of a non‑custodial sentence. However, it must be said that the sentence imposed on the Applicant tends to indicate that the offending was towards the lower end of the spectrum of seriousness. Under section 210 of the Criminal Code 1899 (QLD) the maximum sentence for indecent treatment of a child under 16 is 20 years imprisonment if the child was under 12 at the time or if the child was under the care of the offender at the time, is 20 years imprisonment. In the present case the victim was both under 12 and under the care of the offender at the time.
In relation to the frequency of the offending, all three indecent treatment offences occurred on the same date. The observation offence occurred later in time than the indecent treatment offences and was less serious than the indecent treatment offences. It cannot be said that there is any trend of increase in the seriousness of the Applicant’s offending.
It is difficult to make any finding about the cumulative effect of offending. The Tribunal does not have any victim impact statements. There was evidence from the Applicant’s wife that the victim would not be comfortable seeing the Applicant.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department which would justify an increase in the assessment of the seriousness of the Applicant’s offending.
The Applicant has not been previously warned about the potential consequences on his migration status of further offending.
None of the Applicant’s offences relate to immigration detention.
The Tribunal has also considered that the Applicant has committed relatively minor offences in New Zealand including some traffic offences. The last such offence, of possess cannabis plant, was committed in 2002. As these offences happened a long time ago, and are not particularly serious, the Tribunal has placed no weight on those offences in and of themselves. However, the Tribunal considers that those offences, if known, may have had some bearing on the conclusion of the psychologist as discussed further below.
The Tribunal finds that the Applicant’s indecent treatment offences are very serious and his observation offence is serious. The nature of the Applicant’s offending has been described above.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub‑considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his prior conduct, it is likely that the nature of the harm to victims would be that they would suffer from psychological and possibly physical injury.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant provided the Department with a psychological report completed on 3 February 2018 by an eminent psychologist which addressed the Applicant’s risk of reoffending.
That report concluded:
“The risk of re-offending can be considered in the low category. Firstly, utilisation of the current actuarial tools (e.g PCL-R, SORAG, STATIC-99R & SVR-2) indicate the applicant does not present with elevated risk factors associated with recidivism. Secondly, the relatively brief head custodial sentence is also reflective of the lack of intent (and severity) associated with the offences. Thirdly, he does not present with psychopathic tendencies that have been closely linked with sexual recidivism. More broadly, it is noteworthy that sexual recidivism is one of the least likely committed crimes, compared to drug and property re-offences. Finally, the apprehension, sentencing and incarceration process is reportedly a significant deterrent against recidivism.”
The Tribunal has discussed its concerns with the second reason presented by the psychologist as indicating that the Applicant has a low risk of reoffending above at paragraphs 55 – 56.
A remaining concern that the Tribunal has about the report is that it does not appear that the psychologist had before him evidence of the Applicant’s offending in New Zealand. The reason that this is potentially relevant is that in each of the actuarial tools utilised by the psychologist, the psychologist indicated that prior offending was a relevant factor for each tool in reaching a conclusion as to the risk of recidivism. Contrary to what was said by the psychologist, the Applicant committed six offences in New Zealand between 1991 and 2002 and had a further six traffic convictions between 1989 and 1998. While much of this offending was relatively minor, the Tribunal notes that on 1 July 1998 the Applicant was convicted of “possess for supply cannabis plant” and driving under the influence of alcohol. For the first offence he was sentenced to three months imprisonment and for the second he was sentenced to two months imprisonment. While it is not clear from the record, it appears that these sentences were fully suspended.
As the psychologist was not made available for cross examination, the Tribunal was unable to ascertain whether the fact, and nature, of the Applicant’s New Zealand offending would have had any bearing on the psychologist’s ultimate assessment that the Applicant presented a low risk of reoffending.
However, for the purpose of this decision, the Tribunal is willing to accept the only expert evidence that is before the Tribunal as to the Applicant’s risk of reoffending. That is the evidence of the eminent psychologist that the Applicant presents a low risk of reoffending.
In coming to this conclusion, the Tribunal has also considered the statements of the Applicant’s friends and family members in support of the Applicant. The Tribunal accepts that the Applicant has a supportive family who will try their hardest to ensure that the Applicant does not reoffend. The Tribunal accepts the evidence in the support statements that the Applicant’s offending was out of character.
The Tribunal has also considered the Applicant’s evidence that he attended two Alcoholics Anonymous meetings in Australia and that while he still consumes alcohol, he does so responsibly.
The Tribunal has also considered that the Applicant has also had a strong history of employment in Australia.
The Tribunal has also taken into account that the Applicant wishes to remain resident in New Zealand. Therefore, any time spent in Australia in the future is likely to be limited to short-term visits. The Tribunal considers that the short period of time that the Applicant would be likely to spend in Australia in the future, relative to the situation if he were to remain permanently here, also decreases the risk that the Applicant will reoffend in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s indecent treatment offending is very serious and that his observation offence was serious, although far less serious than his indecent treatment offending. The nature of the Applicant’s offending has been described above.
The Tribunal has found that, if the Applicant were to re-engage in criminal conduct similar to his prior conduct, it is likely that the nature of the harm to victims would be that they would suffer from psychological and possibly physical injury.
The Tribunal has found there is a low risk that the Applicant will reoffend if he is allowed to visit, or remain in, Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
While the risk of the Applicant reoffending is low, because of the serious nature of the offending, the Tribunal attributes moderate weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Subparagraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by the cancellation of the Applicant’s visa. Subparagraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Subparagraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two 16-year-old twin daughters living in Australia.
The Applicant played a primary parental role in relation to these daughters prior to his imprisonment and being held in immigration detention. The girls are currently cared for by their grandparents, the Applicant’s parents, in Australia.
As mentioned previously, the Applicant intends to remain resident in New Zealand. That is, if he is successful in this application for review, he intends to remain permanently in New Zealand. However, if he is successful in this application, he intends to visit family members including his daughters and his parents in Australia.
Therefore, the results of this decision will determine whether the Applicant will be able to visit his daughters in Australia. According to the Applicant’s evidence, if the Applicant is successful on review, he will not return to reside permanently in Australia with his daughters.
The Tribunal has found that the Applicant’s daughters can visit the Applicant in New Zealand and spend time with him there. Indeed, the Applicant’s daughters visited him in New Zealand in 2018. However, those visits may have to be attended by another adult until the girls are 18 years old. If those conditions exist, they will exist equally in Australia as any conditions which have been imposed have be imposed by Australian authorities.
The daughters have expressed in a letter dated 25 February 2018 that they wished for their father to live in Australia with them. They indicated that the Applicant was a very good father. While the Applicant has now indicated that he does not wish to live in Australia with his daughters, the Tribunal considers that the girls would still wish for their father to be able to visit them in Australia.
The Tribunal notes that even if the Applicant were successful in this application, it may be some time before he was able to visit Australia owing to the current international travel restrictions brought about by the COVID-19 virus.
The Tribunal has also considered financial aspects of the best interests of the Applicant’s daughters. The Applicant and his parents had previously claimed that if the Applicant did not remain in Australia his ability to help with the mortgage and support his daughters and parents financially may be limited. The Applicant is currently employed in New Zealand. As the Applicant intends to remain in New Zealand even if he is allowed to return to Australia, the Applicant’s ability to financially assist his daughters will remain the same.
There is no evidence that the Applicant has ever abused or neglected his own children in any way. The daughters have provided evidence that they have suffered, including from depression, as a result of their separation from their father (which in turn was a result of his offending).
The Tribunal considers that it is in the best interests of each of his 16-year-old daughters that the Tribunal revoke the cancellation of the Applicant’s visa. This will allow the Applicant to travel to Australia in the future to visit his daughters.
The Tribunal places moderate weight on this consideration as it relates to the Applicant’s 16-year-old daughters.
The Tribunal has also considered the best interests of the 16-year-old victim of the Applicant’s offences under this consideration.
We know from the Applicant’s wife’s evidence that the victim would not be comfortable coming face to face with the Applicant in the future. That is completely understandable. The Applicant committed serious offences against the victim when she was a young girl. The Tribunal considers that if the Applicant was allowed to visit Australia, there is a chance that he would come into contact with the victim. There is a much stronger chance that the victim would become aware that the Applicant was visiting from Australia. The Tribunal finds that either circumstance may result in distress to the victim.
The Tribunal finds that it is in the best interests of the 16-year-old victim that the Tribunal does not revoke the cancellation of the Applicant’s visa. The Tribunal places low weight on this consideration as it relates to the Applicant’s victim against revocation.
The Tribunal understands that the victim had two younger brothers. Neither the Applicant nor his wife made any claims about the best interests of those children. It is unclear whether either boy would be affected by the Applicant visiting Australia in the future. It is clear the boys would have spent some time with the Applicant while under his care previously. Conversely, the Applicant offended against their older sister. It is not clear whether either of the boys are aware of that offending.
In the absence of any further evidence or any claims about the boys’ interests, the Tribunal places neutral weight on their interests in relation to the revocation of the cancellation decision.
Conclusion: Primary Consideration B
The Tribunal has found that it is in the best interest for each of the Applicant’s daughters for the cancellation of the Applicant’s visa to be revoked. The Tribunal has placed moderate weight on this consideration as it relates to each of the Applicant’s daughters.
The Tribunal has found that is in the best interests of the Applicant’s victim for the cancellation of the Applicant’s visa to not be revoked. The Tribunal has placed low weight on this consideration as it relates to the Applicant’s victim.
The Tribunal was found that the best interests of the victim’s younger brothers are unaffected by the decision as to whether to revoke the cancellation of the Applicant’s visa.
Overall, the Tribunal places low to moderate weight on this consideration in the Applicant’s favour.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of 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 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·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; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
These principles were confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction, can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 13.3(1) of the Direction. This expectation was breached when the Applicant committed the indecent treatment offences and the observation offence.
The Tribunal has considered and taken into account the principles in paragraph 6.3 of the Direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
The Tribunal has considered that Australia may afford a higher level of tolerance to criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age (see subparagraph 6.3(5) of the Direction). In the present case, the Applicant has not lived in Australia for most of his life or from a very young age. In those circumstances, the Tribunal considers that the Applicant should not be afforded a higher level of tolerance.
However, the evidence before the Tribunal suggests that the Applicant has made a positive contribution to the Australian community during his time in Australia (see subparagraph 6.3(7) of the Direction). He has always been gainfully employed in Australia during the periods of time he was allowed to work. The letters of support provided by the Applicant show that he has made significant bonds with members of the community during his time here.
Conclusion: Primary Consideration C
The Tribunal has found that the Applicant has breached the expectations of the Australian community outlined in the Direction in relation to committing criminal offences.
The Tribunal places moderate weight on this consideration in favour of non-revocation of cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under subparagraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
(a) International non-refoulement obligations (and claims of harm or hardship)
The Applicant has not made any clearly articulated claim to the effect that the non‑revocation of cancellation of his visa may result in the breach of Australia’s non‑refoulement obligations.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, 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 noncitizen 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, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2000. He last arrived in Australia in 2007 when he was 34 years of age. He lived in Australia between October 2007 and May 2018. The Applicant began offending in Australia between 2014 and 2016, many years after arriving in Australia.
The evidence before the Tribunal suggests that the Applicant has made a positive contribution to the Australian community during his time in Australia. He has always been gainfully employed in Australia during the periods of time he was allowed to work. The letters of support provided by the Applicant show that he has made significant bonds with members of the community during his time here.
The Tribunal accepts that all the Applicant’s immediate family members, other than one brother, live in Australia.
The Tribunal accepts that the Applicant, having resided here for over 11 years has close ties to Australia. The Tribunal accepts the Applicant is particularly close with his parents and his daughters. The Tribunal accepts that although they are no longer in a marital relationship, the Applicant is close with his wife and they will continue to be friends including if the Applicant is allowed to return to Australia. The Tribunal also accepts that the Applicant is close with his brother in Australia. The Applicant also has two uncles, three aunts and two cousins in Australia.
The Tribunal accepts that all of these family members wish for the Applicant to live in Australia. However, as mentioned previously, the Applicant has indicated that, if he is successful in this application, he intends to remain resident in New Zealand. If he is successful in this application he intends to visit Australia from time to time.
The Tribunal accepts that if the Applicant is unsuccessful in this application that he will not be able to return to Australia. The Tribunal accepts that this will mean that the Applicant will be unable to be present during significant family occasions in Australia. The Applicant gave the specific example of being unable to attend the funeral of either of his parents when they pass. The Tribunal has also considered that a prohibition on the Applicant returning to Australia will mean that he will be unable to attend significant occasions in the lives of his two daughters, for example, graduations and weddings.
The Tribunal accepts that a prohibition on the Applicant visiting Australia may have a severe negative impact on the Applicant and his daughters, his parents, other family members and friends.
The Tribunal has also considered that if the Applicant decides to reside in Australia in the future, this will not be possible if the current application is unsuccessful for the Applicant.
Overall, the Tribunal finds that the Applicant has lived in Australia for a significant amount of time and raised his daughters here. The Tribunal accepts that the Applicant has strong ties with his family members in Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in this matter and the Tribunal places no weight on this consideration.
(d) Impact on victims
Subparagraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
The Applicant’s wife indicated that the victim would not feel comfortable coming face to face with the Applicant. Other than that, there is no direct evidence of the impact of a decision not to revoke on members of the Australian community. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) 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 now 47 years of age. He was born in New Zealand and has lived there for some 34 years. There are no language or cultural barriers which would act as impediments to his continued residence in New Zealand. Of particular significance is the fact that the Applicant has already re-established himself in New Zealand since returning there in May 2018. He has established accommodation and is employed. Indeed, having re-established himself in New Zealand, the Applicant has indicated that he intends to remain resident in New Zealand regardless of the outcome of these proceedings.
The Applicant takes medication for anxiety and high cholesterol. During the hearing the Applicant indicated that his medical needs are sufficiently cared for in New Zealand.
The Tribunal finds that, as the Applicant has already re-established himself in New Zealand, where he is currently employed and is receiving suitable medical treatment, this consideration is a neutral one in this case.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs moderately against revocation of visa cancellation. The Tribunal has found that the Applicant’s offending was serious, that there would be harm to members of the Australian community if it were repeated and that there is a low risk that the Applicant will reoffend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs moderately against revocation of visa cancellation.
The Tribunal has found that the primary consideration of the best interests of each of the Applicant’s two daughters weigh in favour of revocation of the cancellation decision. The Tribunal has found the best interests of the Applicant’s victim weigh against the revocation of the cancellation decision. The Tribunal has found that, overall, this consideration weighs in favour of revocation of the cancellation decision and has attributed low to moderate weight to this consideration in the Applicant’s favour.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed is a neutral consideration in this case.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
.............................[SGD]..........................................
Associate
Dated: 11 August 2020
Date of hearing:
15 April 2019
Applicant:
Self-represented by video link
Assisted by his wife in person
Solicitor for the Respondent:
Christopher Brinley
Clayton Utz Lawyers
Attachment A
EXHIBIT REGISTER
File No: 2018/3528................................................................................................................
Between: RXDD..................................................................................................... (Applicant)
And:Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)
Heard on: 15 April 2019
At:Brisbane..................................................................................................................
| 'Exhibit' Number | Respondent’s Documents | Date Received | Party who |
| G1 | Section 501 G Documents (pages 1 to 208) | 23 July 2018 | R |
| R1 | Case Report from Oranga Tamariki, New Zealand Ministry of Children | 7 May 2019 | R |
| 'Exhibit' Number | Applicant's Documents | Date Received | Party who |
| Al | Applicant's Statement of Facts, Issues and Contentions, undated | 5 April 2019 | A |
| A2 | Newspaper article, Courier Mail, 20 March 2019 | 5 April 2019 | A |
| A3 | Reference (unsigned) from Applicant’s employer, dated 4 April 2019 | 5 April 2019 | A |
| A4 | Witness statement of minor in criminal matter, dated 4 April 2019 (JP witnessed) | 5 April 2019 | A |
| A5 | Reference from Applicant’s parents, undated | 5 April 2019 | A |
| A6 | Reference from Applicant’s wife, undated | 12 April 2019 | A |
| A7 | One page letter outlining values and morals submitted by Applicant’s wife, undated | 12 April 2019 | A |
| A8 | One page document titled Photo Case Exhibits on Gmail folder, submitted by Applicant’s wife, undated | 12 April 2019 | A |
| A9 | Extracts of various media reports | 12 April 2019 | A |
| A10 | Typed document titled "In Humbleness and Humility", undated | 14 April 2019 | A |
| All | Typed document titled "Sex Offender Case | 14 April 2019 | A |
| Al2 | Extracts of further media reports* | 14 April 2019 | A |
| A13 | Amended Facts, Issues and Contentions, undated | 14 April 2019 | A |
| A14 | Typed document titled "Character Traits / Personality Traits", undated* *may be a repeat of A7 | 14 April 2019 | A |
| A15 | Typed Reference from Applicant’s wife, undated* *may be a repeat of A6 | 14 April 2019 | A |
| A16 | Reference from Applicant’s daughters, dated 25 February 2018 | 14 April 2019 | A |
| Al7 | Document "Re Establishment Care Plan Processes", undated | 14 April 2019 | A |
| Al8 | Document "Statement Medications and Alcohol", undated | 14 April 2019 | A |
| A19 | Applicant’s closing written submissions | 29 April 2019 | A |
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