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

Sanchez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2578 (17 July 2024)
Division:GENERAL DIVISION
File Number(s): 2024/2664
Re:Earl Sanchez
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:17 July 2024
Place:Sydney

The decision under review is set aside and in substitution the mandatory cancellation of Mr Sanchez’s visa is revoked.
............................[sgd].........................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – Applicant citizen of the Philippines - visa mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) – substantial criminal record – review of decision to refuse to revoke mandatory cancellation under section 501CA(4) - decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
17 July 2024
Mr S Evans, Member
INTRODUCTION

The applicant, Earl Sanchez, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his BB subclass 155 five-year Resident Return visa (the visa) pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act).[1]
[1] G-Documents, G2, p.6-18.
Mr Sanchez was born in the Philippines in April 1997 and is a citizen of that country.[2] He migrated to Australia with his family in May 2006, age 9.[3] On 14 April 2023, Mr Sanchez was convicted in the District Court of NSW of Aggravated – sexual intercourse child >=14 & <16 years-SI and sentenced to a term of three years imprisonment.[4]
[2] G10, p.100.
[3] G8, p.90-93.
[4] G9, p.94-97; G5, p.72-85.
On 7 June 2023, Mr Sanchez’s visa was mandatorily cancelled by a delegate of the Respondent (the original decision). The delegate had determined that Mr Sanchez did not pass the character test as he had a ‘substantial criminal record’ by operation of section 501(6)(a) and 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more.[5]
[5] G11, p.135-141.
Mr Sanchez was notified that his visa had been cancelled on 23 June 2023.[6] On 11 July 2023, Mr Sanchez made representations to the delegate seeking review of the original decision.[7] On 24 April 2024, Mr Sanchez was notified that the delegate had refused to revoke the original decision.[8] Mr Sanchez applied for review of the delegate’s decision (the reviewable decision) by the Tribunal on 1 May 2024.[9]
[6] G10, p.98.
[7] Ibid, p.99-125.
[8] G2, p.15-17; G3, p.20-30; G10, p.127.
[9] G2, p.6-14.
For the reasons that follow, the reviewable decision will be set aside and in substitution the mandatory cancellation of the visa will be revoked.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Sanchez’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
It is not in dispute that Mr Sanchez does not pass the character test by operation of s 501(6)(a) and s 501(7)(c) of the Act.[10] As Mr Sanchez does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
[10] A SOFIC dated 28 June 2024 at [11].
Background
Mr Sanchez migrated to Australia in April 2009 when he was 9 years old and resided in Sydney with his mother, stepfather and sisters.[11] Owing to his volatile home environment and his drug abuse, Mr Sanchez left home at age 13, after which he experienced periods of homelessness.[12] From 2014 until 2021, Mr Sanchez was supported by Ted Noffs, which runs programs for homeless young people.[13]
[11] G8, p.90-93; IHMS, Clinical Records filed 1 July 2024 p.7-8.
[12] A SOFIC dated 28 June 2024 at [5].
[13] G5, p.78; G10, p.115; R SOFIC dated 3 June 2024 at [39].
There is limited independent or documentary information regarding Mr Sanchez’s background and health before the Tribunal. When sentencing Mr Sanchez on 14 April 2023, Judge Hopkins stated that ‘what is evident’ is that Mr Sanchez was the victim of family abuse and that he had consistently reported homelessness since his early teens.[14] Regarding his mental health, she said he had ‘suffered suicidal ideation and psychotic depression’. With reference to records from Ted Noffs, her Honour acknowledged evidence of social disadvantage and adverse experiences that had marred his formative years and its links to his mental health conditions. Mr Sanchez also experienced the passing of a child ‘resulting in serious grief and loss issues at a very young age’.[15] The reports referred to by Judge Hopkins are not before the Tribunal.
[14] G5, p.78.
[15] Ibid, p.82.
Mr Sanchez’s evidence
Mr Sanchez gave evidence at the hearing and lodged a written statement on 1 February 2024 in addition to the submissions he made as part of his initial request for revocation.[16]
[16] A SOFIC dated 28 June 2024; G12, p.148-150.
Consistent with the observations of Judge Hopkins, Mr Sanchez recalls leaving home when he was age 13 or 14, having an abusive upbringing and becoming ostracised from his family. He confirmed that the death of his newborn son in 2017 was particularly traumatic and led to a significant increase in his drug use.
Mr Sanchez is father to three children. In his statement he writes that his children mean everything to him. His children are what drives him to be better and he believes they deserve to have their father in their lives. Being permanently separated from his children would mean losing his life’s purpose. If he is able to remain in Australia, he plans to continue growing as a father.[17]
[17] G12, p.148-150.
After he was arrested on 21 January 2022, Mr Sanchez and his mother Estrelita Kelyana began to reconcile with the assistance of Bianca Lonesborough. Mr Sanchez called his mother who asked if he was okay. He believes that his mother reconnected with him because she cares about him, just as he cares about his own children. He understands his family is worried about the prospect of him being deported.
Mr Sanchez said that he had most recently worked as a labourer in the construction sector. Previously, he had been employed as a fundraiser and then a factory worker.[18]
[18] G10, p.114
Evidence of Bianca Lonesborough
Bianca Lonesborough provided a statement dated 30 May 2024 and gave evidence in support of Mr Sanchez.[19] She considers Mr Sanchez a hardworking and respectful member of the community who is committed to his friends and family.
[19] Statement of Bianca Lonesborough dated 30 May 2024.
Ms Lonesborough and Mr Sanchez have a daughter, Child E. Ms Lonesborough writes that Mr Sanchez assumed the role of stepfather to her son, Child A, who does not have a relationship with his biological father.[20] She confirms that both Child E and Child A adore Mr Sanchez. She said that Mr Sanchez had been supportive of Child A, who has been diagnosed with ADHD, and that Child A looks up to Mr Sanchez who is able to calm him when required. Ms Lonesborough and Mr Sanchez are no longer in a relationship, but she considers him a good friend.
[20] Ibid.
Mr Sanchez’s consistent help and support has been important to Ms Lonesborough as she balances full-time work and caring of her two children. Ms Lonesborough said that Mr Sanchez has helped support both her children financially and he speaks with them regularly. She gave evidence that it would significantly affect both her children if his visa remains cancelled.
Prior to his imprisonment, Mr Sanchez regularly travelled outside of Sydney to stay with her and the children on weekends. Decisions regarding Child E are made in consultation with Mr Sanchez, but decisions concerning Child A are made solely by Ms Lonesborough. In cross-examination, she confirmed that Mr Sanchez had used alcohol around the children but denied he used drugs. Ms Lonesborough is confident that Mr Sanchez will not risk returning to using drugs and alcohol as it would deny him the opportunity to spend time with his children.
Evidence of Estrelita Kelyana, on behalf of her family
Ms Kelyana is Mr Sanchez’s mother. She provided an undated written statement to the Tribunal but was not available to provide oral evidence at the hearing.[21]
[21] Statement of Estrelita Kelyana undated filed 28 June 2024.
In her statement she describes Mr Sanchez as a caring and kind-hearted boy who ‘fell in with the wrong crowd’ when he was young. He was subsequently influenced by a ‘destructive lifestyle involving drugs and street life’. During his teens, Mr Sanchez ‘fought a relentless battle against addiction’. Despite Mr Sanchez’s efforts to overcome his addictions, Ms Kelyana’s relationship with her son suffered because of his drug use.
Ms Kelyana writes that Mr Sanchez has sought to provide for his family, to be an ‘unwavering presence’ in the lives of his children and be the best father he can be.
REASONING
Primary Consideration 1: Protection of the Australian community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) provides 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 offending or engage in other serious conduct’.
Nature and seriousness of the conduct
Paragraph 8.1.1 of Direction 110 provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision makers must have regard to the following:
a)     without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)     without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
…
c)   with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)   the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
e)   the frequency of the non-citizen's offending and/or 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Mr Sanchez’s offending history
Mr Sanchez’s criminal history is set out in a Criminal Intelligence Commission report and notably includes a conviction on 21 February 2017 for Enter inclosed land not presc premises w/o lawful excuse. On 14 August 2017, he was sentenced to a 2-year section 9 bond following a conviction for Enter building/land w/i commit indictable offence-T1. On 14 October 2019, he was convicted of Goods in personal custody suspected being stolen (not m/v) and fined.[22]
[22] G9, p 94-97.
On 14 April 2023, Mr Sanchez was convicted in the District Court of NSW of Aggravated – sexual intercourse child >=14 & <16 years-SI (the January 2022 offence) and sentenced to a term of three years imprisonment.[23]
[23] Ibid.
The January 2022 offence
In the sentencing Mr Sanchez on 14 April 2023, Judge Hopkins set out the details of the offending which occurred on 8 January 2022 and resulted in the cancellation of Mr Sanchez’s visa.[24]
[24] G5, p.72-85.

In summary, Mr Sanchez was age 24 at the time of the offending and the victim was aged 15. The victim and Mr Sanchez had known each other for about six years. Mr Sanchez used to babysit the victim and her sisters. They would sleep over when the victims’ mother had to work at night. The victim grew to trust Mr Sanchez and referred to him as her uncle. The victim and Mr Sanchez did not have contact for about six years. When the victim was about 14 years-old she contacted Mr Sanchez via Instagram and the two began to have long conversations, usually about the victim’s mental health. Mr Sanchez was someone the victim felt comfortable discussing this with.
In October 2021, the victim returned to Sydney to live with her mother. The victim told Mr Sanchez they should catch up. On 20 December 2021, the victim had an argument with her mother which caused her to leave her mother’s house. The victim and her boyfriend at the time spent about three nights living homeless. On about 4 January 2022, the victim met her mother so she could collect her clothes and hand her mother back the house key. The victim told Mr Sanchez that she was going to find a refuge to stay at. Mr Sanchez offered for the victim to live at his apartment until the victim and her mother reconciled.
Mr Sanchez’s apartment was a one bedroom with a couch in the living room that could be pulled out to make a second bed. While staying there the victim shared the couch with Mr Sanchez’s 17-year-old male housemate, JJ. The sentencing remarks state:[25]
… On the evening of 8 January 2022 the offender, JJ and the victim were smoking marijuana from a bong in the offender’s apartment. A few hours later the victim was feeling high so she lay down on the couch while the three watched a movie together. The couch was pulled out into a bed so that they could all fit. While laying down the victim had her head on a pillow facing away from the offender. Her right hand was slightly above her head. The offender was positioned further towards the back of the couch with his right arm stretched out above the victim’s head. JJ was laying horizontally at their feet facing away from them towards the TV. The offender had his legs on top of JJ's legs. All three were covered by a large doona with only their heads uncovered.
The offender placed his right hand into the victim’s hand and began rubbing her palm and the top of her hand. The victim found it relaxing and it was making her fall asleep. This continued for about ten to 20 minutes at which point the offender touched the victim’s upper outer left thigh with his hand. His hand was under her skirt at this point. The offender’s hand moved towards her inner thigh and he began to rub her inner thigh up and down. The victim froze because she was confused. The offender moved his hand up and down the victim’s inner thigh over the top of her underwear and began to rub the outside of her underwear on top of her pubic area. The offender moved the victim’s underwear to the side and began rubbing the outside of her vagina with his fingers. The offender inserted two fingers into her vagina and moved them backwards and forwards and this went for about eight to ten minutes. The offender then said “Do you want to come and sleep in my bed” to which the victim said “No” and then said “Come on, come sleep in my bed there’s plenty of room”. She replied “No”. The offender stood up and went to his bedroom, closing his bedroom door slightly. The victim was in shock, laying down and not moving. She eventually fell asleep.
The next morning, 9 January 2022, the victim messaged her boyfriend and organised to meet up later that day. The victim and her boyfriend travelled to [suburb] where she told him what had happened the previous night…
… .
On 21 January the offender participated in an ERISP in which he denied inserting his fingers into the victim’s vagina but admitted the following: When he and the victim were laying on the couch he had his head on her shoulder. He felt the victim’s vagina. His right hand was up against the victim’s backside. The rubbing lasted between five to ten minutes. He was rubbing his hands on the outside of the victim’s vagina. The victim shook her head when the offender asked her to come a bit closer. It was all fingers on the offender’s hand that were rubbing the victim’s vagina. He admitted he put his hand on the victim’s vagina. It took about ten minutes for the offender to realise what was happening was wrong. He knew he was sexually touching a child. He asked the victim to come closer because he wanted to do more but not involving his penis. The victim had stayed at his apartment for about one week prior to the incident sleeping on his couch.
[25] Ibid, p.72-75.
The Direction identifies crimes of a sexual nature against women and children as being particularly serious. Mr Sanchez’s offending falls within this category of offences. I take into consideration the sentencing remarks of Judge Hopkins who considered the offence fell toward the lower end of the scale of seriousness for offending of this kind.[26] She also acknowledged the harm caused by offending of this nature stating, “The abhorrence with which the community regards offences of this type is well established as is the emphasis attached to general deterrence in sentencing offenders for sexual offences against children”.[27]
[26] G5, p.78.
[27] Ibid, p.75.
Having regard to the Direction, I find Mr Sanchez’s offending to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Respondent submits that the harm caused by Mr Sanchez’s conduct is so serious that any risk of reoffending is unacceptable.[28] It is not in dispute that further offending of a similar nature may result in significant physical and psychological harm to members of the Australian community. Mr Sanchez acknowledges his offending and has expressed his remorse. He writes that he is deeply sorry for his offending, accepts responsibility for his actions and understands his offending was inexcusable.[29] It is submitted on his behalf that the January 2022 offence was out of character and there is a low risk he will reoffend.[30]
[28] R SOFIC dated 3 June 2024 at [32].
[29] G12, p.148.
[30] A SOFIC dated 28 June 2024 at [26].
Until his arrest on 21 January 2022, Mr Sanchez had never been imprisoned.[31] Mr Sanchez said that being imprisoned for the first time provided him an opportunity to stop using illicit substances and to reconnect with his family. After many years of being ostracised from his family, he now maintains regular contact with his mother and father and feels part of the family again. He expects the support of his family will be a significant benefit in the future as he seeks to maintain sobriety and become a better parent.
[31] G9, p.94-97.
In sentencing Mr Sanchez, Judge Hopkins acknowledged evidence of social disadvantage and ‘adverse experiences’ in his formative years linked to his mental health conditions.[32] It is submitted on his behalf that he had experienced 12-years of addiction and homelessness.[33] Her Honour also details the role that substance abuse had in his offending, stating in part:
In relation to substance abuse, he reported that he was so “smashed” from smoking marijuana and drinking beer that he cannot remember what he was thinking or feeling while committing the current offence. Mr Sanchez stated, on average around the time of the offence he would consume two litres of wine or an equivalent amount of beer per day. Mr Sanchez also stated that around this time if he had the money he would spend approximately $1000 a week on marijuana, methamphetamines and heroin, the last two he would inject intravenously.[34]
[32] G5, p.82.
[33] A SOFIC dated 28 June 2024 at [29].
[34] G5, p.79.
Mr Sanchez acknowledges the ‘big role’ of drug abuse in his offending. He credits the self-loathing he experienced following his offending with giving him the strength to overcome his addiction to drugs.[35] Mr Sanchez’s evidence demonstrates considerable insight into the nature of his drug use, and its contribution to his offending behaviour. Nonetheless, Mr Sanchez gave evidence of having consumed bupe (Buprenorphine) shortly after being sentenced on 14 April 2023 and of ‘accidentally’ taking marijuana in late 2023.
[35] G12, p.149.
While in immigration detention, Mr Sanchez has regularly participated in SMART recovery meetings and drug and alcohol counselling.[36] Should he return to the community he plans to continue his rehabilitation through counselling and with the support of his family.
[36] SMART Recovery Info Sheet filed 28 June 2024.
Regarding the risk of reoffending, Judge Hopkins stated that his risk of sexual reoffending fell somewhere between low medium to average risk. In sentencing Mr Sanchez, her Honour acknowledged he had no significant record of previous convictions.[37] She also accepted that ‘the conduct constituting the offence was an uncharacteristic aberration and that it was unplanned and largely opportunistic’. Judge Hopkins stated that Mr Sanchez had shown remorse and appropriate shame for his offending, noting that he had aided authorities through his admissions to police.[38]
[37] G5, p.80.
[38] Ibid, p.81-82.
Based on Mr Sanchez’s remorse, the opportunistic nature of the January 2022 offence, his limited criminal history and the insight into his offending and the role of substance abuse, I find that there is a low risk that Mr Sanchez may reoffend.
Conclusion - Protection of the Australian community
I consider further offending of a similar nature by Mr Sanchez would cause significant harm to the Australian community. In my view, there is a low risk that Mr Sanchez will reoffend but given the nature of the offending and future risk, the protection of the Australian community weighs very heavily in favour of not revoking the mandatory cancellation of Mr Sanchez’s visa.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence 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.
As there is no evidence that this primary consideration is relevant, it is afforded neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on Mr Sanchez’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. I am also required to consider the strength, nature and duration of any other ties that Mr Sanchez has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending
soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent
contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having resided in Australia since he was 9 years of age, Mr Sanchez has spent most of his formative years in Australia. Mr Sanchez has extensive family ties to Australian citizens or permanent residents including his stepfather, mother, two adult sisters and minor sister. His three minor children and their mothers also reside in Australia.[39] Although Mr Sanchez has had limited contact with his family including his sisters, he is in the process of rebuilding the relationships he has with his immediate family and I accept they are significant ties.
[39] G10, p.108, 112.
His three children are considered in the following primary consideration, but their mothers reside in Australia. Mr Sanchez has limited contact with the mothers of Child J and Child L but maintains a close relationship with Child E’s mother, Ms Lonesborough. I accept her evidence that she experienced Mr Sanchez as a hardworking and respectful individual who is committed to his friends, colleagues and family. Mr Sanchez’s mother, Estrelita Kelyana, considers her son has always been selfless, caring and hardworking. I accept both Ms Lonesborough and Ms Kelyana have a strong connection to Mr Sanchez.
I find that Mr Sanchez has strong ties to Australia, and that his family in Australian would experience emotional hardship if the cancellation decision is not revoked. I also take into consideration that Mr Sanchez has contributed to the community through his paid employment from 2015 until his arrest in January 2022, and his volunteer work including fundraising for charity.[40]
[40] Ibid, p.114-115.
For these reasons, this primary consideration weighs strongly in favour of revoking the cancellation decision.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(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.
Mr Sanchez is father to three minor children who would be affected by this decision. His son, Child J, is 5 years old, Child L, his first daughter, and Child E, his second daughter, are both 3 years old.[41] Mr Sanchez claims to see his children as often as he can. Each child lives with their mother, and his ability to see his children has been partly determined by his relationship with each child’s mother and his proximity to the children.
[41] G10, p.108; A SOFIC dated 28 June 2024 at [36].
Mr Sanchez has been unable to maintain regular contact with Child J as he has a poor relationship with the child’s mother. Mr Sanchez denied any of his children had been placed in the care of the Minister. He speaks daily to Child E and maintains a close friendship with her mother, Ms Lonesborough. Ms Lonesborough’s son, Child A, shares a strong bond with Mr Sanchez. His contact with Child E and Child A has been regular but limited on account of his full time employment. Mr Sanchez gave evidence that he makes parental decisions regarding Child E in consultation with her mother and Child E had visited him in detention.[42]
[42] G10, p.109.
Mr Sanchez submits he performs a significant role in the lives of his children and is the only male role model in their lives. Should he return to the community, Mr Sanchez intends to work towards spending more time with his children and aspires to spend at least one day a week with each of them.
Mr Sanchez has a 14-year-old sister, Child S.[43] He said he has had limited contact with Child S owing to having been ostracised from his family until recently. He expects to re-establish a close relationship with Child S now that he has reconnected with his family.
[43] A SOFIC dated 28 June 2024 at [36]; G10, p.112.
Mr Sanchez submits he has been unable to see his children as often as he would have liked, in part owing to work commitments. I accept that Mr Sanchez has had ongoing contact with Child E. It appears that he has maintained limited or very limited contact with Child J and Child L. All the children have other parental figures who provide them with emotional and financial support. Nonetheless, I accept Mr Sanchez intends to play a more active, positive parental role in the lives of his three children, Child S and Child A. Based on Ms Lonesborough’s evidence, I accept he has the capacity to do so.
This primary consideration weighs in favour of revocation and is afforded significant weight.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
a) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

As required by paragraph 8.4(4) the Direction, I proceed on the basis of the views articulated by the Government. The High Court of Australia has confirmed this approach in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.
Having regard to his serious offending, this consideration weighs heavily against revocation.
Other relevant considerations
Legal consequences of the decision
Paragraph 9.1 of Direction 110 states 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, 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. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
It is submitted on Mr Sanchez’s behalf that he faces homelessness and ‘severe mental health conditions’ which would subject him to degrading treatment in the Philippines without any support. It is contended that this amounts to ‘torture’ and may result in death, and that Australia’s non-refoulement obligations are engaged as a consequence.[44]
[44] A SOFIC dated 28 June 2024 at [49].
I acknowledge Mr Sanchez’s history of homelessness in Australia, and the limited evidence indicating he has a history of mental health conditions including psychotic depression. However, there is no evidence before the Tribunal to support claims he would be subject to degrading treatment in the Philippines. Mr Sanchez has not made an application for a protection visa but is able to do so if he chooses. Having regard to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1), the appropriate course of action is to allow Mr Sanchez’s claims to be more fully assessed in a protection visa assessment.[45]
[45] [2022] HCA 17, [30] per Kiefel CJ, Keane, Gordon and Steward JJ.
This consideration weighs neutrally.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1)   Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)   the non-citizen's age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
Should he be removed from Australia, Mr Sanchez submits that he would face significant impediments in the Philippines.[46]
[46] A SOFIC dated 28 June 2024 at [50]-[54].
Mr Sanchez fears a significant deterioration in his mental health should he return to the Philippines. He says he has been diagnosed with ‘psychotic depression, anxiety, hallucination and anger issues’ and was receiving weekly counselling until he was taken into custody.[47] There is limited evidence to support these diagnoses or information regarding treatment and the impact of these conditions on Mr Sanchez. However, I note a psychiatrist report dated 22 July 2023, prepared while in immigration detention, records Mr Sanchez reported having attempted to self-harm when aged 13 and of having previously been prescribed Quetiapine and Sertraline, which he stopped taking when he went to prison.[48]
[47] G10, p.115.
[48] IHMS Clinical Records filed 1 July 2024 p.17.
Mr Sanchez does not have family or a local support network in the Philippines. He would be separated from his children and anticipates lacking purpose; which he fears may lead leading to a ‘cycle of hardship’. He expects he would become homeless and ‘prone to relapsing back into’ dysfunctional behaviours and drug use.[49]
[49] G12, p.150.
Having arrived in Australia age 9, Mr Sanchez returned to the Philippines with his family on four occasions, staying for up to a month each time. He most recently visited in April 2013, when he was age 12.[50] He has spent most of his life in Australia, and his entire adult life in this country. I accept that he would face some cultural barriers in the Philippines. I also acknowledge he would lack a local support network or family upon whom he could rely for housing, economic or emotional support. I accept these circumstances may be particularly challenging given his history of poor mental health.
[50] G8, p.90-93.
Mr Sanchez is a young man and with transferrable, if unaccredited, skills from his work in the construction industry. He would have access to the health services, treatments and welfare services available to other Philippines citizens. Nonetheless, I accept that he would be expected to face considerable difficulty re-establishing himself and would experience a period of significant adjustment without the support of family or friends.
Overall, the impediments Mr Sanchez would face in the Philippines weigh strongly in favour of revocation.
CONCLUSION
Having considered the specific circumstances relating to Mr Sanchez, I am required to weigh-up the considerations to determine whether there is another reason to revoke the decision to cancel his visa.
The Direction requires that the primary consideration of the protection of the Australian community should generally be given greater weight than the other considerations.[51] Mr Sanchez’s offending was serious and there is a real, albeit low, risk that he may reoffend. Given the nature of the offending, the primary consideration of the protection of the Australian community weighs in favour of not revoking the cancellation decision and is afforded significant weight. The primary consideration of the expectations of the Australian community also weighs strongly in favour of not revoking the cancellation of Mr Sanchez’s visa.
[51] Subparagraph 7(1), Direction 110.
The primary consideration of family violence is not relevant to the decision and weighs neutrally. The legal consequences of this decision also weigh neutrally.
I accept Mr Sanchez sincerely intends to play a positive parental role in the lives of his children and has the capacity to do so, and the primary consideration of the best interests of minor children weighs in favour of revocation. Mr Sanchez has significant and close ties in the Australian community, and this consideration weighs heavily in favour of revocation. Having resided in Australia since age 9, Mr Sanchez would face substantial impediments in establishing himself without an existing support network. This consideration weighs strongly in favour of revoking the cancellation of his visa.
On balance, I find the correct and preferable decision is to revoke the mandatory cancellation of Mr Sanchez’s visa.
DECISION
For the reasons outlined above, the decision under review is set aside and in substitution the mandatory cancellation of Mr Sanchez’s visa is revoked.

I certify that the preceding 87 (eighty - seven) paragraphs are a true copy of the reasons for the decision herein of Member S Evans.

............................[sgd].......................................
Associate
Dated: 17 July 2024

Date(s) of hearing: 4 and 8 July 2024

Solicitors for the Applicant: Mr F. Nikjoo, Nikjoo Lawyers

Solicitors for the Respondent: Mr M. Gauci, Hunt & Hunt Lawyers

[2024] AATA 2578

17 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	4 and 8 July 2024
Solicitors for the Applicant:	Mr F. Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr M. Gauci, Hunt & Hunt Lawyers