Singh and Minister for Home Affairs (Migration) - [2019] AATA 73

Singh and Minister for Home Affairs (Migration) [2019] AATA 73 (30 January 2019)
Division:GENERAL DIVISION
File Number: 2018/6636
Re:Galjinder Singh
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R. Cameron
Date:30 January 2019
Place:Melbourne

The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member R. Cameron
Catchwords
MIGRATION – Visa cancellation – Indian national – failed character test – indecent act with children – child grooming – risk of reoffending – expectations of the Australian community – decision affirmed
Legislation
Crimes Act 1958 (Vic)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Sex Offenders Registration Act 2004 (Vic)
Cases
R v Scott (2009) 22 VR 41
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Senior Member R. Cameron
30 January 2019
INTRODUCTION

The Applicant is a citizen of India. He was, until 31 October 2018, the holder of a Class VB Subclass 885 Skilled – Independent Visa (“the Visa”). On that date, the Visa was cancelled by a delegate of the Respondent Minister under section 501(2) of the Migration Act 1958 (“The reviewable decision”). He has applied to the Tribunal for review of that decision.
THE APPLICANT’S BACKGROUND
The Applicant was born on 9 August 1988. He is 30 years of age. He arrived in Australia on 30 December 2006, having obtained a Subclass 573 (Higher Education Sector) visa.
Between 12 February 2007 and 17 October 2008 he completed a Diploma of Horticulture at Holmesglen TAFE.
In 2008, after undertaking a practical training course, he became a licenced security guard; what is correctly known as the holder of a “Private Agents’ licence”.
In 2010 he was issued with a Subclass 485 (Temporary Graduate) visa.
On 26 September 2011 the Applicant applied for the Visa. At the time of his application for the Visa he had been assessed as having the skills for the occupation of “Nurseryperson” by Trades Recognition Australia. The Visa was granted on 27 November 2013.
From 2013 the Applicant has been engaged in full-time work as a security guard. Since December 2015 he has worked for Protection Pacific Security and Mr Mastaing, his supervisor, gave evidence that he is a dedicated and valuable employee.
Following his convictions, details of which are outlined later in these reasons, on 24 December 2014 the Victoria Police Licensing & Regulation Division cancelled the Applicant’s Private Agents’ licence because of his convictions.
The Applicant appealed to VCAT against the decision of Victoria Police to cancel his Private Agents’ licence. On 23 July 2015 VCAT set aside the decision to cancel the Applicant’s Private Agents’ licence. It reprimanded him and reinstated his Private Agents’ licence from 24 July 2015.
On 28 October 2015 the Applicant applied for Australian citizenship. He disclosed his convictions on the application for Australian citizenship.
On 14 October 2017 the Applicant married Navneet Kaur.
On 13 March 2018 the Applicant received a Notice of Intention to Consider Cancellation in relation to the Visa (“the NOICC”).
On 18 April 2018 Applicant responded to the NOICC.
As noted earlier, on 31 October 2018, a delegate of the Respondent cancelled the Applicant’s permanent Visa.
On 5 November 2018, the Respondent refused the Applicant’s application for Australian citizenship.
The Applicant’s wife is pregnant and due to give birth to their first child in February 2019.
RELEVANT LAW
Section 501 “Refusal or cancellation of visa on character grounds” provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test, and;
(b) the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child.
Section 500 “Review of decision” provides:
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
...
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)).
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65, Migration Act 1958 – Direction Under Section 499 (“the Direction”).
Direction No. 65
It is appropriate to set out several of the sections of the Direction that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:
(1)The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501 … The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B … of this Direction.
The principles referred to in paragraph 6.2 are contained in paragraph 6.3:
(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 vulnerable members of the community such as minors, 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.
…
(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.
Part A of the Direction provides guidance for non-mandatory cancellation decision-making and contains a number of primary and other considerations. Finally, paragraph 8(4) of the Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
The Applicant has conceded that, owing to the operation section 501(6)(e)(i), he does not pass the character test.[1]
[1] This concession is made at paragraph 3 of his Statement of Facts, Issues and Contentions filed 8 January 2019.
The parties agree that the sole issue to be decided is whether the Tribunal should exercise the discretion under section 501(2) to cancel the Applicant’s Visa.
THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL
There was both documentary and viva voce evidence before the Tribunal.
The documentary evidence consisted of witness statements from the following persons:
a)The Applicant;
b)His wife Navneet Kaur;
c)Veerpal Kaur;
d)Char Singh;
e)Simarjeet Kaur Choong;
f)Emmanuel Mastaing[2];
g)Dildar Singh;
h)Dilbag Singh;
i)Avtar Singh Randhawa;
j)Jaspreet Singh;
k)Amandeep Singh.
[2] It should be recorded that Mr. Mastaing’s statement was in fact a letter dated 4 January 2019 addressed to “Whom it May Concern”.
Further documentary evidence was as follows:
a)The G documents (consisting of two volumes)[3];
b)A bundle of PAYG payment summaries-individual non-business for the financial year ended 30 June 2018 for the Applicant;
c)A copy of an Order made in the Victorian Civil and Administrative Tribunal review and Regulation List on 23 July 2015 by Senior Member Davis,
d)Copy of a letter dated 2 January 2019 from the Department of Home Affairs (the Department) confirming the grant of a Visitor (subclass 600) visa to Navneet Kaur Brar;
[3] The first volume is entitled “Paginated G documents” and the second volume “Relevant Documents”.
Additionally, both parties filed and served Statements of Issues, Facts and Contentions[4].
[4] The Applicant's Statement of Facts, Issues and contentions is dated 8 January 2018 and the Respondent's is dated 16 January 2019.
There was viva voce evidence from the following witnesses:
a)The Applicant;
b)His wife Navneet Kaur;
c)Veerpal Kaur;
d)Char Singh;
e)Simarjeet Kaur Choong;
f)Emmanuel Mastaing;
g)Dildar Singh;
h)Dilbag Singh;Avtar Singh Randhawa;
i)Jaspreet Singh;
j)Amandeep Singh.
THE OFFENCES COMMITTED BY THE APPLICANT.
The Applicant was convicted of two offences as follows:
a)Use a carriage service to groom a person under 16 years of age for sexual activity contrary to subsection 474.27(1) of the Criminal CodeAct 1995 (Cth); and
b)Wilfully commit an indecent act with a child under the age of 16, contrary to section 47(1) of the Crimes Act1958 (Vic).
The details of the Applicant’s offending are found in the documentary evidence before the Tribunal, together with the viva voce evidence given by the Applicant himself during the course of the hearing.
The documentary evidence before the Tribunal includes the “Reasons for Sentence” of the sentencing Judge on 24 November 2014.[5] There is also the “Summary of Prosecution Opening”[6] which was tendered in evidence before the sentencing judge as Exhibit 1. This document was responded to by the Applicant in a document prepared by counsel who appeared on his behalf at the in the County Court of Victoria. Such response was contained in the G documents and is entitled “Outline of Plea Submissions on behalf of the Accused”.[7] The contents of the Summary of Prosecution Opening were admitted by the Applicant in his Outline of Plea submissions (and during the plea hearing)[8]. Its contents were also admitted by the Applicant’s counsel during the course of this hearing before the Tribunal. There was also, amongst other documents, a transcript of a record of interview conducted by the Police with the Applicant. Extracts of what are described as “chat logs” on a messaging application that were conducted between the Applicant, the victim of his offending and a third party. These were recovered from his mobile phone together with screenshots and extracts of message exchanges across what are described as “various social media applications between the Applicant and the victim of his offending”. The Summary of Prosecution Opening also contained extracts from various text messages passing between the Applicant over various messaging applications, which will be referred to throughout the course of these reasons, between the Applicant and the victim of his offending.
[5] Page 43 of the G documents.
[6] Page 373 of the G documents.
[7] Page 425 of the G documents.
[8] Where a Defendant pleads guilty, the Summary of Prosecution Opening is tendered with other relevant documents, before the sentencing judge. Usually, (as was the case here) its contents are admitted by the Defendant and the Defendant provides a written response (as also occurred here). These documents are considered by the sentencing judge as well as submissions made by counsel for the Prosecution and the Defendant on the day of the plea hearing. Subsequently, the sentencing judge then delivers the written reasons and sentences the Defendant accordingly.
Before proceeding to outline some details of the Applicant’s offending, it should be recorded that the victim of such offending was, at all relevant times, 11 years of age. The Applicant was 25 years of age.
Commencing on approximately 26 December 2013 the Applicant started exchanging text messages with a person he believed to be a 26-year-old Korean woman, using an internet instant messaging application known as “Meowchat”. When a user of Meowchat opens an account with that application they establish what is sometimes known as a “profile”. In establishing a profile, the relevant user adopts a particular name. Sometimes, accompanying the name is a photograph or image. The apparent 26-year-old Korean woman with whom the Applicant was communicating used the profile name “Jessica” and included a photograph with such profile (“The Meowchat profile photograph”). This exchange of messages continued for approximately one and a half months.
The Applicant gave evidence that, to use his words, the communication started with “normal conversations and within a few days a strong relationship” developed. He further gave evidence that “within 4 to 5 days we were communicating on a big scale”. The volume of messages passing between them (he stated in his evidence to the Tribunal) reached over 1,000 per day.
After approximately one and a half months, the Applicant was at the airport to pick up his father-in-law. He gave evidence that, whilst waiting for that flight to land, he saw a photo of a woman displayed on an advertising banner which was the same photo as the Meowchat profile photograph of the person he believed he had been exchanging messages with (“Jessica”). The advertising banner identified the person in that photograph by name. The Applicant gave evidence that he then “Googled” the name of the person endorsed on the banner and discovered that she was a Korean pop star.[9] He also gave evidence that the 26-year-old Korean woman had sent him “many photos” and realised they had all been copied from the Internet.
[9] He gave a different version of how he found out that the Meowchat profile photograph was of a Korean pop star to the police in his record of interview of 12 March 2014. In that interview he stated that he was sitting and checking a picture and found something written on the corner of the picture identifying "Jessica" together with a name and website. He then Google searched her name which revealed the true identity of the person in the photograph (Page 490 of the G documents).
In evidence before the Tribunal the Applicant stated: “My first reaction was who was behind it and they were making me a fool.”[10] Notwithstanding this revelation he stated that he wished to meet her. He probed her as to her age and his evidence was that she said she could be 24, 17, 16 or 11. Eventually, she informed him that she was in fact an 11-year-old.
[10] In his record of interview with the police he stated that when he found this out he "was very shocked-shocked for me".
The evidence before both the sentencing Judge and this Tribunal establishes that the Applicant, by 15 February 2014, was well and truly aware that the person with whom he was communicating was an 11-year-old girl.[11]
[11] This evidence is contained in paragraph 4 of the Reasons for Sentence (page 44 of the G Documents), paragraph 6 of the Summary of Prosecution Opening (page 374 of the G documents), a text message contained in the chat log of the Applicant’s Viber chat of 15 February 2014 (page 540 of the G documents) and admissions to that effect that the Applicant made in the witness box during his evidence given to the Tribunal.
The Applicant was warned by his friends to cease all further contact with the 11-year-old girl. They were blunt, clear and direct warnings. He was warned that he could face sanction under the criminal law including potential charges of “pedophillia”[12]. Despite these warnings he continued to exchange text messages with her.
[12] Warnings to this effect were contained in text messages in evidence before the Tribunal. The Applicant also stated in the course of his evidence from the witness box: "I admit that my friends told me what I was doing was illegal." He also admitted in his record of interview with the police that he was warned in those terms.
The continuing exchange of messages between the Applicant and the 11-year-old girl included messages that were described as being “in a sexualised manner”.[13]
[13] Paragraph 8 of the Summary of Prosecution Opening.
The Applicant and the 11-year-old girl arranged, through the messaging application that they were using, to meet on 21 February 2014, near the girl’s school. Detailed arrangements were made including identifying the relevant street and that they would rendezvous close by at a public library. Having met outside the public library in close proximity to the girl’s school, they then drove to a nearby park.
The Applicant gave evidence before the Tribunal that the girl was wearing a school jumper with the name of the school endorsed upon it. He readily conceded that she told him she was 11 years old when they were at the park. However, in somewhat puzzling evidence, he stated that: “she was looking more like 15 or 16”.
At the park, the Applicant kissed the girl on the lips. He also touched her legs[14] and moved her hair away from her face[15].
[14] The Summary of Prosecution Opening only refers to the Applicant kissing the girl on the lips. (Paragraph 10 on page 374 of the G documents.) When probed in cross examination as to whether he had touched the girl on the legs he said: "I don't remember". The contents of a text message sent by him on 23 February 2014 to the girl in which he said: "Also I touched your legs once remember????" (Page 392 of the G documents.) were shown to him and he then admitted he had touched her on the legs.
[15] There is a reference to moving here from the girl's face in a text message passing between the Applicant and her on 23 February 2014 (Page 392 of the G documents). When this was put to him in cross-examination the Applicant conceded that he did this.
There is some inconsistency in the evidence about other aspects of the events that took place at the park. In the Summary of Prosecution Opening, it is stated that the Applicant and the girl chatted in the Applicant’s car before the kiss took place. In the record of interview with the police, he stated that they were just sitting in the car. In his evidence before the Tribunal he stated that they were sitting on a bench presumably situated in the park. He further stated that they stayed in the park for a period of “15 to 20 minutes or half an hour”. In a text message of the same date that he sent to a friend, he said “We just meet for one hour. Apparently we kissed too”[16]. The duration of the meeting was not noted in either the Summary of Prosecution Opening or the Applicant’s record of interview with the police. This is somewhat surprising given the gravity of the charges.
[16] Page 397 of the G documents.

There is a screenshot of the text messages passing between the Applicant and the girl on 21 February 2014 which reveals the time of the Applicant’s arrival at the public library to be 4:54 PM. The girl’s mother, in her statement, said that she received a telephone call at 5:30 PM on that day from a parent of a fellow classmate of the girl. That concerned parent advised her that she had been informed, by her daughter, that the girl had an online boyfriend who she was going to meet on that day.
Whilst the Applicant and the girl were at the park the girl’s mother, following the telephone call with the parent of a fellow classmate, telephoned the girl and confronted her with the revelation that she was aware of the existence of the online boyfriend.[17] The girl denied it was her, said it was not true and that she was on her way home.
[17] The mother's statement to the police which was relied upon by the prosecution in the plea hearing in the County Court is referred to in its entirety. It is found at page 461 of the G documents.
At the conclusion of the phone call between the girl and her mother, the Applicant drove the girl to some nearby shops and left. The girl apparently ran home. Once again, she was confronted by her mother with the facts as she knew them. The girl admitted that she had been chatting with an adult online but denied that she had met with him. She also stated that she had deleted the Meowchat application.
The Tribunal should observe that this revelation obviously had a profound effect on the girl’s mother. In a text message sent by the girl to the Applicant at 6.42pm on 21 February 2014, the girl said: “My mum came home crying.” The Tribunal has no reason to doubt that this message is correct. A revelation such as the girl’s mother experienced about her daughter’s behaviour in the circumstances would understandably produce such a reaction.
Later on the same day, namely 21 February 2014, the Applicant exchanged text messages with a friend on his “Viber” application. He explained that he kissed the girl, that it was “a proper kiss” and that “I’m still imagining her kiss (yummy) (tongue) (laugh)” and that he could not forget it. He also stated that he knew what he did was wrong because of the girl’s age. The messages concerned are contained in the documents attached to the Summary of Prosecution Opening and also in the relevant screenshots and chat logs of the conversations concerned in the G documents.
There were further messages passing between the Applicant and a friend between 22 February and 6 March 2014. Relevant extracted text messages for this timespan, taken from the Applicant’s mobile phone, were next to the Summary of Prosecution opening. Once again, they reveal that the Applicant was told, in no uncertain terms, that he should never see the girl again. He was told that she was a minor and it was illegal and that he risked going to prison. It was expressly said to him by that person with whom he was corresponding on 22 February 2014: “She is too young to understand that what she is doing is wrong.” Notwithstanding this sound warning, the Applicant continued to contact the girl concerned.
The communication by messaging applications continued after 21 February 2014. There were several aspects to the messages that passed between them.
Several of the messages recorded the Applicant asking the girl whether she was now his girlfriend, telling her he loved her and could not wait until he could hold her and kiss her again.[18]
[18] These messages can be found in several places including paragraph 14 (pages 375-376 of the G documents) of the Summary of Prosecution Opening and in the screenshots contained at pages 570-838 of the G documents. The contents of those text messages speak for themselves.
Another dimension to the messages passing between the Applicant and the girl, after the meeting on 21 February 2014, was that the Applicant told her not to inform anyone about their meeting because of the fact he risked going to jail. In this series of messages he also requested that she delete all their chat history and messages. A selection of those messages is contained at paragraph 15 of the Summary of Prosecution Opening.
A further and concerning dimension to the subsequent text messages passing between the Applicant and the girl is what is described as the “sexualised communication”[19]. As is noted in the Summary of Prosecution Opening, this sexualised communication continued from the Applicant even after he became aware that the girl’s parents were attempting to restrict her use of Internet chat rooms and messaging applications. It followed the parents deleting the Meowchat application from the girl’s phone. It is also amplified by the fact that he was aware that they had deleted her Meowchat application from her phone.
[19] Details of these text messages are to be found in paragraph 16 of the Summary of Prosecution Opening (pages 376-378 of the G documents) and are referred to in their entirety for the full context, force and effect.
The content of these messages is quite confronting and is to be found that paragraph 16 of the prosecution summary. Regrettably, it is necessary, in the consideration of this matter, to reproduce some of the messages sent by the Applicant to the girl, hereunder.

Date

Text message

23.2.2014

I want another kiss.

23.2.2014

Definitely gonna feel you today.

23.2.2014

I was talking about masturbate.

Unknown

U gonna feel horny when I’m gonna touch.

Unknown

I think I’m gonna kiss you everywhere on your body.

Unknown

Can I touch on pussy too?

Unknown

You want to play with mine Dick??

Unknown

You gonna like to lay on me

Unknown

I want you too lay on me

Unknown

And looked at my private part

Unknown

I want you to lay on my top

Unknown

My girl have awesome boobs

Unknown

I mean (redacted) have yummy boobs

Unknown

One day I’m allowed to your boobs??

Following the deletion of the girl’s Meowchat application by her parents, the Applicant and the girl commenced exchanging messages using another application which is described as an instant messaging service called “Hangouts”. The girl’s parents were not aware of this fact.
The communications between the Applicant and the girl only ceased following the execution of a search warrant by the police at his home and his subsequent arrest on 12 March 2014.
The girl’s mother screen captured some of the messages passing between the Applicant and her using the Meowchat application. Once she had done this, the police were informed and an investigation commenced, which led to the arrest and charging of the Applicant with the crimes for which he was subsequently convicted following entering a plea of guilty.
On the charge of using a carriage service to groom a person under 16 years of age for sexual activity, contrary to subsection 474.27(1) of the Criminal CodeAct 1995 (Cth), the Applicant was convicted and sentenced to 12 months imprisonment. That term of imprisonment was wholly suspended and he was released forthwith, on entering into a Recognizance Release Order in the sum of $1,000 to be of good behaviour for two years.
On the charge of wilfully committing an indecent act with a child under the age of 16, contrary to section 47(1) of the Crimes Act1958 (Vic), he was convicted and sentenced to a Community Corrections Order of 18 months. A condition of the Community Corrections Order was that he serve 150 hours of community work. Additionally, the conditions recommended by the author of the Community Corrections Order Assessment Outcome Report[20] were imposed. Those conditions required treatment and rehabilitation for mental health and further treatment and rehabilitation with programs to reduce reoffending, as well as supervision under various sections.
[20] That report is to be found at pages 405-407 of the G documents. Its contents are referred to in their entirety. However, it should be noted that they recommend the following conditions for any foreshadowed Community Corrections Order that the court might be minded to impose (as it is in fact did):
A.Supervision;
B.Community Work;
C.Sex Offender Program; and
D.Treatment and Rehabilitation-Mental Health.
The Applicant has complied with all of the requirements of the Recognizance Release Order made by the Court, namely that he has been of good behaviour. In addition, he has complied with all conditions of the Community Corrections Order, including the Sex Offender Program and the Treatment and Rehabilitation - Mental Health.
It should also be observed that, by reason of his convictions and sentencing, the Applicant became a registered sex offender under the Sex Offenders Registration Act 2004 (Vic) and is subject to that act for a period of 15 years. The Sex Offenders Registration Act provides a system for the regulation of convicted sex offenders, which requires reporting of personal details and annual reporting to the police in accordance with its requirements. The evidence before the Tribunal, which was not contested, was that the Applicant has complied with all of his obligations under that act.
THE PRIMARY CONSIDERATIONS
Paragraph 9(1) of the Direction with respect to non-mandatory visa cancellations prescribes the Primary considerations to be taken into account by the decision-maker. It states:
(1)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Protection of the Australian community
Paragraph 9.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 9.1(2) further states:
(2) Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 9.1.1 of the Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to 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 committed against vulnerable members of the community (such as minors, 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) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test or is not of good character under section 501(6)(c), is to be considered serious;
e) The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.
…
The Tribunal concludes that the Applicant’s offending is, in all the circumstances, serious. Indeed, it was conceded by the Applicant in the Statement of Facts, Issues and Contentions, filed on his behalf, that it fell within the category of offending which is considered to be very serious[21]. A concession in similar terms was quite properly made by Applicant’s counsel during the course of the hearing.
[21] Paragraph 59 of the Applicant’s Statement of Facts, Issues and Contentions.
Apart from any concessions made by the Applicant, the evidence supports such a conclusion. The factors to be taken into account in clause 9.1.1(1) of the Ministerial Direction must be applied to the facts of this case.
Clause 9.1.1(1)(a) provides that sexual crimes are viewed very seriously. The Applicant’s convictions are for committing sexual crimes. As noted above, the first conviction was for the use a carriage service to groom a person under 16 years of age for sexual activity. The second conviction was to wilfully commit an indecent act with a child under the age of 16.
Clause 9.1.1(1)(b) provides that crimes committed against vulnerable members of the community, such as minors, are serious. The victim of the Applicant’s offending was an 11-year-old girl. As a minor, she falls within a category of victims who are demonstrably vulnerable as well as in terms of the language used in the clause itself. This is a powerful factor weighing against the Applicant and justifying the cancellation of the Visa.
Clause 9.1.1(1)(e) requires the decision-maker to have regard to the sentence imposed by the court for the crime or crimes. The sentencing judge imposed a 12 month jail sentence, fully suspended upon compliance with certain terms and conditions as noted above. He also observed, as required by the terms of section 6AAA of the Sentencing Act 1991 (Vic), that had the Applicant not pleaded guilty to the offences, he would have ordered a total effective sentence of 12 months imprisonment, together with a Community Corrections Order. The sentence imposed, on its face, is a reflection of the seriousness and gravity with which the court, and for that matter the respective Parliaments, view offending of this nature.
The sentencing judge himself stated, at paragraph 31 of his Reasons for Sentence, that: “These are without doubt very serious offences and in sentencing you, I had regard to the very comprehensive chart, which is Table A, headed, “Grooming offences in Victoria, 2008, 2014 single charge of grooming.” Once again there is no reason why the Tribunal should not accept this assessment of the sentencing judge.
Concerning the seriousness of the Applicant’s offending; it is worth observing the intention of the legislature concerning crimes of this nature, as reflected in the maximum penalties that are imposed for these offences.
Firstly, the maximum penalty for a violation of section 474.27(1) of the Criminal Code Act 1995 (Cth), being the charge of using a carriage service to groom a person under 16 years of age for sexual activity, is a term of imprisonment for 12 years.
Secondly, the maximum penalty for a violation of section 47(1) of the Crimes Act 1958 (Vic), being that of wilfully committing an indecent act with a child under the age of 16, is a term of imprisonment for 10 years.
It is acknowledged by the Tribunal that, save for these relevant factors specified in clause 9.1.1(1) of the Ministerial Direction addressed in these reasons, none of the others have application, as was submitted on his behalf.
The Applicant contended that the sentences imposed by the trial judge were far short of the maximum sentences prescribed by the legislature. He also contended that the lower range of the sentences reflected his genuine remorse for the crimes he had committed, his prospects of rehabilitation (which has in fact occurred in the intervening years) and that he was unlikely to reoffend given the fact that he had gained an insight into his offending. In making this contention, the Applicant relied, inter alia, on the observations made by the professional witnesses retained on his behalf[22] and as directed by the court.[23]
[22] Ms Pamela Mathews, a Forensic Psychologist, prepared reports regarding the Applicant which were before the sentencing judge. The first report was dated 23 July 2014 (page 409 of the G documents) and the second report was dated 21 October 2014 (page 61 of the G documents). Ms Mathews also gave viva voce evidence at the hearing before the Tribunal.
[23] The Psychiatric Report to the Court" of Dr Kevin Ong, Consultant Psychiatrist, Victorian Institute of Forensic Mental Health, dated 21 October 2014 (page 429 of the G documents) is referred to in its entirety.
The relatively short time span of the Applicant’s offending was raised. It was also emphasised that whilst the Applicant’s contact with the child was over a 10 week period, it was only over approximately a three week time span that he was aware of her true age. This point was made to highlight the fact that there were only two offences committed and there was no evidence of escalating sexual violence or perhaps any trend of increasing seriousness within the concept identified in Clause 9.1.1 (f) of the Ministerial Direction. The Tribunal acknowledges this submission and takes it into account. It should also be considered that his conduct and certainly his contact with the girl only finally ceased with the intervention of the police[24]. Therefore the duration of contact whilst limited (and certainly the duration of contact when the Applicant knew she was 11), it does not diminish the nature and seriousness of the Applicant’s conduct.
[24] Counsel for the Applicant in his closing submitted that he could not identify any evidence of contact between the Applicant and the girl after 6 March 2014. However, in the Summary of Prosecution Opening at paragraph 19 (which was not challenged by the Applicant both before the sentencing judge and during the hearing before this Tribunal as noted earlier) stated that: "The communication between the Accused and the child only stomped when police executed a search warrant on his premises on 12 March 2014." The Tribunal accepts this statement as to when the communication between the Applicant and the girl ceased.
It was also contended by the Applicant that, on the occasion concerned, that he thought he was seeing a 23-26-year-old Korean woman. He then found out this was not the case and continued making contact with the girl unlawfully and improperly. The submission developed off the contention that the girl set up a profile to cause harm to other people. It was then contended that the Applicant formed an attachment to her. This attachment was described as “old-fashioned romantic love.” The Applicant was said to have “difficulty pulling back”, due to immaturity or inadequacy. It was said to be a “strange game this girl was playing” and he should have stopped.
Ms Briffa, in her closing submissions, described the Applicant’s portrayal of the girl as misogynistic and about a “femme fatale”. Counsel for the Applicant did not go quite that far. Nonetheless, it was a robust attempt to shift some blame or level of culpability upon the girl.
The Tribunal cannot accept this contention in any way at all. It has to be repeated that an attempt to portray the 11-year-old girl in this way cannot be correct. The Applicant was an adult, he knew what he was doing was wrong; he should have stopped and did not. To seek to either deflect or in some way shift the blame for his offending to her cannot be countenanced.
Children, let alone an 11-year-old girl, fall within a category or class of society members who are particularly vulnerable. There must be the utmost vigilance in protecting them. They are subjected to a wide range of influences that can and sometimes do lead them to act in a misguided way. This vulnerability has only increased since the advent of the internet and the development of various social programs, websites and applications, as can be seen in this case. The legislature has recognised this fact by introducing various laws against the misuse of carriage services. These laws include proscribing the use of the internet for the purposes of grooming. Young girls should not be subjected to the sort of behaviour engaged in by the Applicant in this case.

The Applicant is not an unintelligent or uneducated man. He knew the difference between right and wrong, even before he was counselled wisely by his friends not to have any contact with the girl concerned. Notwithstanding his own knowledge and despite the advice sensibly given to him by his friends, he proceeded to meet her and commit the indecent acts concerned.
The Tribunal is also concerned about the attitude or demeanour the Applicant displayed in the witness box concerning some aspects of his offending. They did not reflect well upon him. On one occasion in the course of his evidence, whilst under cross-examination, he described his offending as “technically serious” or a “technical breach” of the law. When challenged about this categorisation or description of his offending, he sought to backtrack. In so backtracking, he did not create a very favourable impression. It also does invite the Tribunal to question whether he really has come to terms with the gravity of his offending. This is of much concern. There was no possible basis for him to be able to make the assertion that he did about his offending. It was objectively serious. The Tribunal does not accept the way the Applicant changed his evidence on this occasion; it lacked credibility.
This lack of credibility concerning the use of the terms “technically serious” or a “technical breach” with respect to his offending also arises with respect to some other aspects of his evidence. The inconsistencies between his evidence in the witness box, the record of interview with the police and the contents of text messages that have been articulated earlier above are also of concern. It will be recalled that it was only when confronted by his own messages that he conceded he had touched the girl’s legs and moved her hair from her face. It does show a lack of candour. There were also the inconsistencies between the evidence given to the Tribunal and the contents of the record of interview with the police. Those inconsistencies included the time that the meeting between them took place and the issue of whether or not the encounter took place in the Applicant’s car or on the park bench. Cumulatively, these considerations lead the Tribunal, reluctantly, to find it difficult to accept some aspects of the Applicant’s evidence.
There was another aspect of the Applicant’s evidence that lacked credibility. In the text messages from the Applicant’s Viber messaging application there is a conversation between the Applicant and another person in which he refers to having had a conversation with his brother-in-law. The substance of that conversation was that his brother-in-law told him not to worry and that words to the effect that nothing would happen to him. Further, and somewhat disturbingly, there is an assertion in that text that the Applicant’s brother-in-law said words to the effect: “Nowadays even every teenage have sex too.” The Applicant’s evidence was somewhat evasive on this question but he asserted that he did speak to his brother-in-law in these terms. On the other hand his brother-in-law in the witness box before the Tribunal steadfastly denied that the Applicant had spoken to him in those terms. The Tribunal accepts the evidence of his brother-in-law.
In both his evidence before the Tribunal and in the course of his record of interview with the police[25] the Applicant maintained that after the meeting in the park he decided that he would slowly cut off his relationship with her, or leave her slowly by a steadily reduced pattern of contact. This assertion was searchingly probed by Ms Briffa in cross examination of the Applicant. It is apparent from the content of the text messages that his contract with her via these messaging applications was anything but reduced. The contact continued in the same terms. It was in a sexualised manner as is evident from the content of the messages such as the day after the meeting[26] and paragraph 16 of the Summary of Prosecution Opening. Once again this reflects badly on his credibility.
[25] Question 60 and the Applicant's answer in the record of interview (page 495 of the G documents). He gave evidence to similar effect in the witness box.
[26] See page 392 of the G documents where he said amongst other things: “I want to be like…you with me on bed and touch it.. and kiss every 2 mins.”
The Respondent in his submission contended that the Applicant’s offending was predatory. The Applicant hotly contested this contention. One of the grounds for resisting the assertion of predatory behaviour was, as noted earlier in these reasons, that there was some notion of “old-fashioned romantic love” attached to his conduct. The Tribunal accepts the evidence of Ms Matthews and Dr Ong that the Applicant was emotionally immature. The Tribunal also accepts the evidence of Ms Matthews and Dr Ong that there is no convincing evidence of deviant sexual arousal or paedophilia. However, that does not mean that his behaviour was not, at least to some extent, predatory. At the conclusion of the hearing the parties referred the Tribunal to the decision of the Victorian Supreme Court of Appeal of R v Scott[27]. In that case, the court discussed what might be described as predatory features or predatory conduct. Justice Robson, in a most helpful consideration of indicators of predatory behaviour, identified an element of planning, rather than opportunistic behaviour, as being important in deciding whether to categorise such behaviour as predatory. He considered that the critical element was whether there was evidence that satisfied the trial judge, beyond reasonable doubt, that the applicant preyed on the victim as opposed to engaging in an isolated incident where something may have gotten out of hand.
[27] (2009) 22 VR 41.
The Tribunal agrees with the submission of the Minister that the behaviour of the Applicant certainly had a predatory element to it. There is a significant age difference between them. The volume of text messages prior to the meeting on 21 February 2014 is a factor. The content of the messages, including the planning that went into them to arrange the rendezvous on the day in question, demonstrate an element of planning in the sense described by Justice Robson. Another feature of the conduct that gives rise to a conclusion that the behaviour was predatory were the attempts that the Applicant subsequently made to encourage the girl not to speak to anyone about their meeting or, as the Respondent contended, the attempts to cover up the offending. The meeting was followed by a sustained pattern of messaging between them; it was not an isolated incident(although it was a one-off meeting) in the way considered by the Court of Appeal in Scott where the offending took place during a birthday party.
Having assessed the factors that the decision-maker must have regard to, as provided in Clause 9.1.1(1) of the Ministerial Direction, the Tribunal concludes that the Applicant’s offending against an 11-year-old girl was very serious. It does, therefore, weigh extremely heavily in favour of cancellation of the Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 9.1.2 of the Direction relevantly provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct that 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.
(2)In considering the risk 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 Applicant, in addressing this primary consideration, asserts that he is a low risk of reoffending. Therefore, by reason of the low risk there is a low risk to the Australian community. There are several grounds relied upon by the Applicant in support of his contention that the likelihood of him engaging in further criminal or other serious conduct is low.
His previous good conduct was emphasised; he has not reoffended for almost five years.
The reports of Dr Ong and Ms Matthews have found in all the circumstances of the risk of reoffending is low. Ms Matthews, in her most recent report on 3 January 2019, addresses this primary consideration specifically. She stated that the most significant predictors of recidivism for sexual offences were not present with the Applicant. She concluded, in the second last sentence on page 12 of her 3 January 2019 report,[28] that the Applicant’s risk of reoffending subsequent to treatment and re-examination “is very low, negligible insignificant and unlikely”. In the next paragraph, she finds that the Applicant “is of low risk of reoffending compared to other forms of offending committed against the Australian public.” She also conducted analysis of the likelihood of the Applicant committing a similar sexual offence applying an actuarial tool. She explained, as did Dr Ong, that the Applicant’s offending was not driven by sexual deviance. Both experts, as was noted earlier in these reasons, concluded that his offending took place in the context of emotional immaturity with limited experience in relationships.
[28] In her report of 24 July 2014 she concluded that the applicants "risk of reoffending in a similar manner is assessed as very low. In her report of 21 October 2014 she expressed the opinion that the applicant "is not in any way an ongoing risk to the community.." In her report of 26 August 2015 she stated that he "is a very low risk of repeating his behaviour is convicted."
The Applicant also relied upon the observations of the sentencing judge, which also referred to the reports that were before him from Ms Matthews and Dr Ong. The sentencing judge also stated that he did not see a need in the sentencing task to place any great significance on or take into account the notion of specific deterrence. This factor, it is asserted, demonstrates the views of the trial judge that the likelihood of the Applicant reoffending is low indeed. The trial judge, in his reasons, described the likelihood of reoffending to be modest, as a result of the findings of Ms Matthews and Dr Ong.
Additionally, the sentencing judge had the Applicant assessed for a Community Corrections order. And Assessment Outcome Report of the Applicant’s suitability to be placed on a Community Corrections Order, from the Victorian Department of Justice was completed. That report assessed the Applicant as being a low risk of reoffending using an assessment tool known as “VISAT”. This report was relied upon by the sentencing judge in imposing the Community Corrections Order on the Applicant.
The Tribunal also acknowledges and has taken into account the extensive evidence given by all the witnesses called on behalf of the Applicant. These witnesses, identified above included close family members and friends. (Also, a representative of the Applicant’s employer.) Their evidence detailed their assessment of the Applicant, his previous good character and hard-working qualities. They also emphasised that his offending was out of character, “one-off”, that he was genuinely remorseful about his offending and had learned from his mistakes.
It was also contended on behalf of the Applicant that any risk posed to the Australian community “has been extinguished in the four years that have passed since the offence.” This was said to have arisen because he has reflected on his behaviour, demonstrated genuine remorse, complied with the terms of his good behaviour undertaking, undertaken an appropriate sex offending treatment program and sought support from his family. It was also asserted that, by reason of the guilty plea, he had accepted responsibility for his actions. He stated that he was aware of the offending and its seriousness and expressed regret.
Therefore, it was contended that his offending was not of a kind that was so serious and the harm caused if repeated not so severe that any risk of repetition may be unacceptable.[29]
[29] Paragraph 79 of the Applicants Statement of Facts, Issues and Contentions.
The Respondent, in his Statement of Facts, Issues and Contentions and closing submissions, argued that the risk of reoffending is low rather than very low.[30] The Respondent contended that the actuarial tool did not have categories or concepts of “very low” or “negligible”. To her credit this was conceded by Ms Matthews in cross-examination.
[30] See paragraph 24 of the Respondent’s Statement of Facts, Issues and Contentions.
The Respondent also relied upon the contents Ms Matthew’s report of 3 January 2019, which asserted that the risk levels of the Applicant committing similar sexual offences against members of the public is low, but nonetheless 7% at the 15 year level.
In consideration of these competing contentions, the Tribunal considers that it is important not to ignore the fact that the Applicant’s offending was against a child.
It is appropriately conceded by the Respondent and accepted by the Tribunal that the Applicant had an unblemished record prior to his offending. He has not reoffended. He has complied with all the terms and conditions of his undertaking to the court together with his obligations under the Sex Offenders Registration Act 2004 (Cth).
The Applicant has rebuilt his life and worked hard to establish himself in his new career as a private agent working in the security industry.
However, several things emerge. Whilst the experts assert that there is little risk of him reoffending, using the language that they do, they do not say there is no risk. It is wrong to say, as the Applicant does in his submission, that the risk to the Australian community has been extinguished in the four years that have passed since the offending. Such submission does not accord with the evidence. The Tribunal must be extremely vigilant to protect the interests of children, who both the Ministerial Direction and common sense establish as vulnerable members of the community.
The Tribunal is also concerned about the fact that, as touched on earlier in these reasons, there is a serious doubt about the Applicant’s credibility. Particularly, the fact that, under affirmation in the witness box, he made the statement that his offending was a “technical breach” of the law or was “technically serious”. It was anything but technical. It must be of concern that, if this misguided view of his offending continues, there is a real risk of him reoffending, even if that risk is low. In accordance with the language used in clause 9.1.2(1), the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Crimes of a sexual nature against children will not be tolerated by the Australian community. It is conduct that, if repeated, is more likely than not to cause harm that is so is serious that any risk that it may be repeated is unacceptable.
Adopting the language used in clause 9.1.2(2)(a) of the Ministerial Direction, the nature of the harm to a child were such offending to be repeated by the Applicant is very serious indeed. There has been considerable emphasis on sexual abuse of minors in recent times in Australia. It is apparent that lives can be irretrievably altered, if not ruined, as a result of the commission of sexual offences against children. The range of damage to young lives, that can have lasting if not permanent effect, is considerable. They need not be reiterated; they are well known.
Given these matters, the Tribunal concludes that the Applicant’s risk of reoffending is low. However, it is repeated that, despite a low probability of such reoffending, the risk can be regarded as substantial because of the potential for great harm to result. Such risk of future harm by the Applicant is unacceptable.
For these reasons the Tribunal concludes that this consideration weighs strongly in favour of the cancellation of the Visa.
Best interests of minor children in Australia affected by the decision
Paragraph 9.2 of the Direction relevantly provides that:
(1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking 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 contends that it is in the best interests of his two Australian citizen nephews that he be permitted to remain here. His elder sister and her husband have two children aged 5 years and 9 months. Both his elder sister and her husband gave evidence and filed witness statements in this proceeding as noted earlier.
Their evidence demonstrated that the Applicant has played a very significant role in their children’s upbringing. The reason for this is that the Applicant, his wife, his sister and her husband lived under one roof in Mordialloc. It has not been what one frequently sees in Australia, a conventional “nuclear family”.
The Applicant’s sister does not drive. Frequently, the Applicant would assist with day-to-day activities, such as driving the eldest child to school or the youngest one to an infant health centre or medical practice for vaccinations. He also prepared food, took the children to look after them at a local park and took a general interest in their upbringing. He also played a role in playing with the children or minding them when either his sister or brother-in-law were not present. He took an interest in the eldest child’s schooling and usually spoke to the eldest nephew after school to see how he was progressing. The Applicant’s sister and brother-in-law, together with their children, have continued to visit the Applicant whilst he has been in detention regularly (usually two or three times per week) to maintain the contact between the Applicant and the children.

The Applicant’s brother-in-law gave evidence that when the Applicant went into detention, he stopped work. The reason he stated he stopped work was because his wife was not in good health and that he had to look after the children. His wife works part-time in hospitality, four days a week with occasional work on a fifth day if possible. This has led to a considerable reduction in the disposable household income available to the family.
Another unique feature of the living arrangements was that, because both families were living under the one roof, the Applicant’s sister and brother-in-law are able to save considerably towards the purchase of a home. His brother-in-law gave evidence that, whilst the Applicant was working, he helped defray the rental on the Mordialloc property, which is approximately $1,670 per month. If the Applicant is no longer in Australia, it will be more difficult for his sister and brother-in-law to be able to afford a house in the foreseeable future, if at all. The detention of the Applicant has put a strain on household income, which is applied to the benefit of the minor nephews.
The Respondent concedes that it is not in the best interests of the Applicant’s nephews for the Visa to be cancelled. The Respondent submits that only limited weight should be given to this consideration because his relationship with those children is not parental.
There was also evidence from a personal care assistant, who is a friend of the Applicant who has known him for approximately eight or nine years, that he had developed a relationship with her son. Ms Briffa submitted that the Tribunal also had to consider the best interests of that child in making any determination concerning cancellation of the Visa.
The Tribunal accepts the evidence of the Applicant’s relationship with his nephews. It also accepts the evidence from his sister and brother-in-law concerning the household arrangements. This evidence was largely corroborated by his wife.
With respect to the Applicant’s nephews, several things emerge. The eldest nephew, who was five years old, has clearly formed a relationship with the Applicant that is stronger than would usually be the case between an uncle and a nephew. He is the one who will be most affected.
The younger nephew is less likely to be affected by reason of his age. Nonetheless there would be some effect.
The son of the personal care worker also will be affected to a degree that it is difficult to assess; probably greater than that of the applicant’s younger nephew.
When applying the provisions of clause 9.2 of the Ministerial Direction, the fact that subclause (4)(a) of that clause provides that less weight should generally be given where the relationship is non-parental is applicable. Also, despite any absence of the Applicant the nephews will have their parents to fulfil parental responsibilities in all respects.
The absence of the Applicant in terms of his input in the upbringing of the children is only one aspect of the detriment or effect that his absence would have on his nephews. Given that the Tribunal accepts the other evidence concerning this consideration, there is also the effect the reduced disposable household income would have on the nephews and the consequent strain it will place their parents under in terms of looking after them. This can be considered together with the fact that it will unfortunately make it more difficult for the parents to buy a house, if at all, or otherwise in the foreseeable future.
For these reasons, some weight is given to this consideration which is in favour of not cancelling the Visa.
Expectations of the Australian Community
Paragraph 9.3 of the Direction relevantly provides:
(1)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 cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regards to the Government’s views in this respect.
In applying this paragraph, the Tribunal has to construe the language used. The expectation contained in the first sentence of this paragraph, requiring obedience to Australian laws, is not an unrealistic expectation, nor is it difficult to understand. Where the debate sometimes arises is in the subsequent sentences, where the Tribunal has to consider what the expectations of the Australian community might be in the circumstances of the case.
The Applicant in his submission refers to several authorities concerning this question.[31] On the other hand, the Respondent makes a series of statements as to what the Australian community might acknowledge in terms of the Applicant’s difficult background, without necessarily referring to any authorities.
[31] The contents of paragraphs 55-60 of the Applicant's Statement of Issues, Facts and Contentions are referred to.
In Re Do and Minister for Immigration and Border Protection[32], McCabe DP provided some guidance:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done.
[32] [2016] AATA 390 at [23].
In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs[33] Block DP also helpfully observed:
The expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
[33] [2003] AATA 1336 at [36].
Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[34] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Direction in that case, however paragraph 9.3(1) features identical wording) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Direction was, in effect, a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against an applicant and indeed that was the intention of that paragraph.
[34] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Forgie DP in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].
The Applicant contends that in applying this consideration, it is appropriate to look at the nature of the Applicant’s offending, the time he has been in Australia, the contribution he has made to the Australian community and the effect cancellation would have on his wife and relatives in Australia. When one assembles these integers and compares them against other matters, principally what is described as the Applicant’s breach of trust of the Australian community by reason of his offending, the consideration does not weigh against him.
In his closing submissions, counsel for the Applicant also submitted with considerable force and effect that, by reason of the Applicant’s citizenship application at least since 2015 but probably in reality by 2014, the Department was aware of the Applicant’s offending, yet it was not until 2018 that any steps were taken to cancel the Visa. The argument went that, if the Department was genuinely troubled by the Applicant’s offending, it might have done something about it much earlier. In short it has allowed the situation to arise and allowed him to become more involved in a more significant way for the Australian community, including developing his career as a private agent in which he was doing valuable work.
Whilst it is surprising that steps were not taken earlier by the Respondent following it becoming aware of the Applicant’s offending it should not, and cannot be a barrier to it exercising the powers conferred upon it under section 501 (2) of the Act. There is no provision in the Act, or any binding authority to that effect.
Another limb to the Applicant’s submission from counsel was that, whilst his offending was serious, it did not reach the “high bar” that this clause of the Ministerial Direction contemplates. He has been compliant with his obligations, particularly immigration obligations, in every other respect both before and after having been taken into immigration detention.
The Respondent attacked these submissions in two ways. Firstly, it contended that, in circumstances where the protection of the Australian community weighs against the Applicant and where he has been convicted of serious crimes, the weight that the Tribunal should attach to this consideration is overall against the Applicant.
A secondary contention is that the Australian community would have limited tolerance for the Applicant’s criminal offending in the light of what is described as is immigration history. There are several limbs to this contention. Firstly, that he failed to study at a tertiary level despite being granted a student visa to do so. Secondly, that he failed to work full-time in the field for which he was granted a permanent skilled visa. Thirdly, that he appears to have brought his wife to Australia to reside permanently without a permanent residency visa.
The first limb, it is submitted, does not have a great deal of weight because at the end of the day he did study and he did complete a horticulture qualification at the Holmesglen TAFE. Presumably, the Department was aware of this irregularity (if it indeed is that) but saw fit to do nothing about it. The Tribunal in the circumstances does not place any real weight on this factor at all. Concerning the two other limbs in this argument they can be addressed in relatively short form. Having obtained a permanent residency visa, he was entitled to work as any other permanent resident can, which is in an occupation of his choice. As the Tribunal understands it there was no obligation on his part as a permanent resident to work in the nursery industry as a nurseryman. As for his wife’s current residential arrangements. She is on a visitor visa and there is no evidence of non-compliance. Therefore, no weight is attached by the Tribunal to these two issues.
As has been noted throughout these reasons, sex offences against minors are viewed extremely seriously in this country. The Tribunal is reminded of the provisions in clause 6.3(3) of the Ministerial Direction. Where a non-citizen has committed a serious crime, including of a sexual nature against vulnerable members of the community such as minors, they should generally expect to forfeit the privilege of staying in Australia. It is conduct that is just unacceptable. It cannot be seen to be offending at the lower end of the spectrum. It is not a technical breach of the laws of this country. Once again, the fact that the Applicant saw fit, in the witness box, to describe it in that way triggers real and genuine concerns that the Applicant has not fully come to terms with the gravity of his offending.
We do not have a victim impact statement from the 11-year-old girl; we are left to speculate. It clearly has caused immense distress to her parents. At the very least, it has created a fracture in the relationship between the 11-year-old girl and her mother. This fracture was evident by the fact that, almost certainly due to the pressure to cover up the offending on the part of the Applicant, the 11-year-old girl did not tell the truth to her mother. This failure to tell the truth included not initially admitting she had been with the Applicant then, falsely denying that she had deleted the Meowchat application from her phone and finally the subsequent use of the other messaging services in the hope of avoiding detection by the girl’s parents.
There must also have been the distress to the girl’s parents of the discovery of this offending, the reporting of the matter to police and dealing with the investigatory processes and of course the additional stress that this would cause them whilst they waited for the criminal justice system to take its course (even though the offending took place as noted earlier in February 2014 and the sentence was imposed on 24 November 2014, which is relatively quick in criminal justice terms, it was nonetheless some time for which the parents, presumably uninitiated in these processes, would have had to deal with this matter).
It is possible that, in years to come, the girl will be affected. One hopes not, but cannot be certain.
The Ministerial Direction requires the decision-maker to have regard to the government’s views concerning this matter, which in this instance lean towards cancellation of the Visa because of the offences that the Applicant has committed
Overall, assembling all these different aspects of the evidence relevant to this primary consideration, the Tribunal finds that an informed, reasonable and fair-minded member of the Australian community, because of the convictions that have been imposed on the Applicant for offences committed against an 11 year old girl, the risk of re-offending (even if low), the great harm that would potentially result which is unacceptable in the event of reoffending, the fact that the Applicant considers the offending to be “technically serious” and the Applicant’s credibility issues raised under the consideration of the nature and seriousness of his conduct above, would expect the Applicant’s visa to be cancelled.
Therefore, this factor weighs heavily against the Applicant.
OTHER CONSIDERATIONS
There are other considerations that must be considered in non-mandatory visa cancellation matters which are identified in paragraph 10(1) of the Direction. It provides that:
(1)       … These considerations 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;
e)        Extent of impediments if removed.
International non-refoulement obligations
Neither party advanced any contentions concerning this consideration.
There is no evidence before the Tribunal to suggest that any international non-refoulement obligations can be invoked in favour of the Applicant.
The Applicant did not, in any material lodged with the Department, make a claim relevant to this consideration.
The Tribunal concludes that this consideration does not weigh either for or against the Applicant.
The strength, nature and duration of ties to Australia
The Direction at paragraph 10.2 addresses the matters to be taken into account for this consideration:
(1) 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 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 community.
b) The strength, duration and nature of any family or social links with Australia citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation 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 argues that he has been a contributing member of the Australian community for more than 10 years. He has worked throughout that time, paid taxes, donated to charity and undertaken various voluntary work, together with assisting in the rearing of his nephews and assisting friends.
As noted earlier his employer, or more accurately a representative of his employer, did speak highly and in impressive terms of his work ethic and diligence as an employee. This was amplified by the fact that he is a reliable employee in an industry where it is frequently very difficult to find, let alone train and hold onto, employees of such calibre. The Tribunal accepts this evidence.
There were a number of witnesses who gave evidence as to his previous good character and the general standing and esteem within which they hold him. The Tribunal accepts this. This evidence is in effect corroborated by the fact that he had an unblemished record before his offending and has not reoffended since. His compliance with all the obligations of his sentence including the Sex Offenders Registration Act 2004 and the undertaking to be of good behaviour are further evidence of this fact.
His contribution, particularly his sister and brother-in-law’s well-being and their family, both financially and by way of the support previously described, is a significant contribution. It is regrettable that if he is no longer in Australia it will restrict their capacity to buy a home either at all or within the timeframe that they had hoped for. It is particularly unfortunate given the fact that a home that they owned would be of assistance to the Applicant’s nephews as they grow up.
The Tribunal accepts these contentions on the part of the Applicant.
The Respondent concedes that the Applicant has a network of family and friends and has worked as a security officer for some time.
Apart from the concession the Respondent emphasises that the Applicant’s wife has no permanent right to reside in Australia. Nor, for that matter, would the Applicant’s child when born.
This consideration does weigh in favour of the Applicant. It does weigh in favour of the Applicant more than the Respondent contends. However, it does not outweigh the primary considerations of the nature and seriousness of his offending, together with the expectations of the Australian community.
Impact on Australian business interests
Paragraph 10.3 of the Direction relevantly provides:
(1) Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that any employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant sought to argue that the evidence given on behalf of his employer justified application of the provisions of Clause 10.3 of the Ministerial Direction. The argument was developed that the quite strong evidence given by the Site Security Supervisor from his employer, Protection Pacific Security, was sufficient to be captured by the language of this consideration.
On the other hand, Ms Briffa acting on behalf of the Respondent, contended with considerable force and effect that it is clear from the language used in the direction that it applies solely to an occasion where the visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia. She contended that there was no evidence that enables the Tribunal to reach this conclusion. Further, she contended there was no evidence from the owner of the business, merely the Site Security Supervisor.

The Tribunal accepts the contentions of Ms Briffa concerning this consideration and finds that it has no application to the circumstances of the Applicant. It cannot weigh in his favour at all.
Impact on victims
Paragraph 10.4 of the Direction relevantly provides:
(1) Impact of a decision not to cancel a visa on the 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 visa cancellation has been afforded procedural fairness.
As noted on earlier occasions in these reasons, there is no victim impact statement or other evidence as to the precise impact of a decision not to cancel the visa on the girl concerned. There is limited evidence, as was noted, on other members of the Australian community, particularly the girl’s mother and no doubt probably her father, but that is, to some degree, speculative.
It is possible that the full impact on the girl concerned may not manifest itself or may not have manifested itself as of yet. Once again, this does involve a level of speculation.
Overall, because of the limited evidence that there is from the girl’s mother, who had made a statement that is in evidence, the Tribunal concludes that this consideration marginally weighs against the Applicant.
Extent of Impediments if removed
Paragraph 10.5 of the Direction relevantly provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australian 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.
Surprisingly little was submitted by either party in both of their Statements of Facts, Issues and Contentions or closing submissions concerning this consideration. There was some reference in passing by the Applicant in the course of his evidence and by counsel for him which indicated that there would be some initial difficulty in returning to India. These difficulties would be caused by several factors.
Both the Applicant’s parents have passed on. The Applicant’s family network is now largely in Australia, not in India. He does have other siblings being a brother and a sister in India but he does not have close contact with them the way he does with his sister in Australia. Apparently, his brother in India is an alcoholic, as was his father. His sister has moved out of the town where he grew up and he has little attachment to her. He also mentioned that his grandparents are still alive but are both very old and in aged care; they would not recognise him due to increasing frailty and illnesses that are frequently suffered by elderly citizens. In short, if he returns to India he will be there with his wife and of course his newborn child.
There was also evidence given by him that, if he had to return to India, it would cause him personal anguish and financial disadvantage. He points out that he has been in Australia since he was 18. He is also concerned that he might suffer discrimination and shame in having to explain the circumstances of his return to the few family members and friends he has left in India. He says he would be treated as disgraced by his family. Although, this seems hard to accept given the fact that he says he has little or no contact with his family at this time.
His other concern is that he has difficulty imagining how his wife’s family will react when the truth behind his return emerges. He expressed concern that he and his wife would be removed from her family.
He is, however, relatively young at 30 years of age. He has obtained a qualification in Australia (even though he contends is no real demand for it in India). He has a proven capacity to apply himself in a workplace environment as a diligent and competent employee and there is no reason to believe he will not be able to do so if he returns to India. There is no evidence to suggest that he would be in a position of disadvantage compared to any other citizen of India in accessing what supports are generally available so that he can re-establish himself and maintain basic living standards.
Apart from what has been mentioned, there is no other evidence before the Tribunal of any other barriers to him re-establishing himself.
For these reasons, the Tribunal concludes that this consideration does not weigh for or against the Applicant
CONSIDERATION.
In considering whether the Tribunal should exercise the discretion under section 501(2) to cancel the Applicant’s visa, it has considered that the Applicant’s offending against an 11-year-old girl for which he was convicted. The Tribunal finds that the offending is very serious.
It was offending of a sexual nature. The offending was against a vulnerable member of the community. It is not correct to seek to emphasise or highlight the role of the 11-year-old girl in the factual substratum in which the Applicant’s offending occurred. 11-year-old girls must be subject to the utmost protection that society and the criminal justice system can provide. She may well have and indeed did post messages on the internet of a nature that initially would have lured the Applicant towards her. This is in a setting where he was emotionally inadequate. However, he was not intellectually inadequate and once he found out she was 11 years old was in no doubt that that what he was doing, by continuing to maintain contact with her, meet her and then engage in the physical activities, what he did was palpably wrong.
His categorisation in the witness box of his offending as “technical breaches” of the law is unacceptable and, in terms of the nature and seriousness of his offending, amplifies such seriousness. His credibility on the other grounds identified was also poor.
This consideration does weigh extremely heavily in favour of cancellation of the Visa.
The Tribunal acknowledges the findings of the experts Ms Matthews and Dr Ong (together with the Assessment Outcome Report prepared by a Community Corrections Officer) and concludes that there is a low risk of reoffending for the reasons that have been articulated earlier. However, despite a low probability of reoffending, the risk is substantial because the potential for great harm to result remains. The risk of such future harm to a child is unacceptable.
Therefore, protection of the Australian community from the risk of reoffending is a consideration that weighs strongly in favour of cancellation of the Visa.
The best interests of minor children is such that, particularly with respect to his two nephews, and his involvement with their upbringing, some weight must be given in favour of not cancelling the Visa.
The Tribunal considers that the risk to the Australian community, should the Applicant commit further offences is such that, because great harm would potentially result if it were repeated. Such risk is simply unacceptable and weighs heavily against the Applicant.
The expectations of the Australian community are that the visa should be cancelled, given that the Applicant has been convicted of crimes of sexual nature against an 11-year-old. Even if the risk of reoffending is low, given the great harm that would potentially result in the event of reoffending, it is just so serious that even a low risk of repeat offending is unacceptable.
Of the other considerations, there are predominantly the strength, nature and duration of his ties to Australia, which do weigh in his favour.
Balancing all of the primary and other considerations, as the Tribunal is obliged to do under the Ministerial Direction, the Tribunal is satisfied that the correct and preferable decision is to cancel the Visa.
CONCLUSION
For the reasons provided, the reviewable decision is affirmed.

186.

187. I certify that the preceding 185 (one hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

..................[sgd]..............................
Associate
Dated: 30 January 2019

Date of hearing: 22-23 January 2019

Counsel for the Applicant: Mr G Hughan

Solicitors for the Applicant:
Carina Ford Immigration Lawyers

Advocates for the Respondent: Ms A Briffa, Mr K Sypott

Solicitors for the Respondent: Australian Government Solicitor

Date	Text message
23.2.2014	I want another kiss.
23.2.2014	Definitely gonna feel you today.
23.2.2014	I was talking about masturbate.
Unknown	U gonna feel horny when I’m gonna touch.
Unknown	I think I’m gonna kiss you everywhere on your body.
Unknown	Can I touch on pussy too?
Unknown	You want to play with mine Dick??
Unknown	You gonna like to lay on me
Unknown	I want you too lay on me
Unknown	And looked at my private part
Unknown	I want you to lay on my top
Unknown	My girl have awesome boobs
Unknown	I mean (redacted) have yummy boobs
Unknown	One day I’m allowed to your boobs??

Date of hearing:	22-23 January 2019
Counsel for the Applicant:	Mr G Hughan
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocates for the Respondent:	Ms A Briffa, Mr K Sypott
Solicitors for the Respondent:	Australian Government Solicitor