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

[2022] AATA 4722

SKWF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4722 (4 August 2022)

Division:GENERAL DIVISION

File Number           2022/4026

Re:SKWF  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member George

Date of Decision:               4 August 2022

Date of Written Reasons:      25 August 2022

Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 11 May 2022 that the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.

[Sgnd]             
Senior Member George

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Home Affairs v Buadromo [2018] FCAFC 15

Minister for Home Affairs v Omas [2019] FCAFC 188

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member George

25 August 2022

INTRODUCTION AND BACKGROUND

1. SKWF (“the Applicant”) has stated that he is a citizen of Myanmar,[1] being the Republic of the Union of Myanmar and previously known as Burma. The Applicant has also contended during these proceedings that it is very likely that he is now stateless.[2]

   [1] Exhibit R1, s 501 G-Documents, G9, page 54.

   [2] Exhibit A1, page 36, paragraph [4.11.10].

2. The Applicant has lived in Australia since arriving from Malaysia in May 2015,[3] aged 18 years, on a Class XB Subclass 202 – Global Special Humanitarian visa.[4] This visa was mandatorily cancelled on 18 February 2020 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[5]

   [3] Exhibit R1, s 501 G-Documents, G58, page 193.

   [4] Exhibit A1, pages 49-50, paragraphs [10]-[11].

   [5] Exhibit R1, s 501 G-Documents, G59, pages 194-199.

3. In a declaration dated 20 February 2020, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[6] On 12 May 2022, the Respondent decided not to revoke the cancellation of the Applicant’s visa.[7]

   [6] Exhibit R1, s 501 G-Documents, G4, page 20.

   [7] Exhibit R1, s 501 G-Documents, G3a, pages 10-13.

4. On 19 May 2022, the Applicant lodged an application for review of the 12 May 2022 decision before the Tribunal.[8] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [8] Exhibit R1, s 501 G-Documents, G1, pages 1-3.

5. The hearing proceeded on 27 and 28 July 2022 by audio-visual means. The Applicant was represented by Ms Chen of Tang Law and the Respondent was represented by Ms Strugnell of Minter Ellison. The hearing was conducted with the assistance of interpreters of the Hakha Chin and English languages.

6. The Applicant expressed dissatisfaction at the interpreting of aspects of his evidence-in-chief on 27 July 2022, specifically regarding his oral evidence of his rehabilitation courses.[9] However, examination-in-chief was satisfactorily interpreted with re-questioning.[10] On 28 July 2022, the Tribunal had to rely upon a series of interpreters as no single interpreter was available for the full day. Under re-examination, the Applicant required a change of interpreter and a different interpreter was provided as requested.[11]

   [9] Transcript, page 27, lines 15-18.

   [10] Transcript, page 33, lines 17-21.

   [11] Transcript, page 61, lines 46-47.

7. The Applicant gave evidence at the hearing, as did his sister Ms “NSH” and brother Mr “LU”. The Applicant attempted to make Dr Phil Watts available on 28 July 2022. However, Dr Watts became unavailable due to his limited availability and delays caused by changes of interpreters.[12] The most significant effect of this was that Dr Watts was unable to be cross-examined by the Respondent.

   [12] Transcript, page 55, lines 31-35.

8. The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

9. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that the Minister may revoke the original decision under s 501(3A) as follows:

   (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.

10. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised if either of s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met.[13]

    [13] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

    Does the Applicant Pass the Character Test?

11. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

12. On 4 July 2019, the Applicant was convicted of three offences in the District Court of Western Australia at Perth. These were:

    (a)Two counts of sexually penetrating a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA), for which he was sentenced to a period of three years imprisonment and two years and three months imprisonment; and

    (b)Indecently dealing with a child over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code (WA), for which he was sentenced to a period of three years imprisonment.

13. The total effective sentence was a period of three years and six months imprisonment, with eligibility for parole after two years. The Applicant was also deemed to be a “Reportable Offender” as a consequence of his conviction.[14]

    [14] Exhibit R1, s 501 G-Documents, G7, page 50.

14. The Applicant was paroled on 28 April 2021 and his parole expires on 3 January 2023.[15]

    [15] Exhibit R1, s 501 G-Documents, G34, pages 155-156.

15. The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is there another reason why the cancellation of the Applicant’s visa should be revoked?

16. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[16]

    [16] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

17. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.

18. The principles that are found in paragraph 5.2 of the Direction are stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

19. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

20. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

    (1)  protection of the Australian community from criminal or other serious conduct;

    (2)  whether the conduct engaged in constituted family violence;

    (3)  the best interests of minor children in Australia; and

    (4)  expectations of the Australian community.

21. Paragraph 9 of the Direction sets out the Other Considerations which must be taken into account. These considerations are:

    a)   international non-refoulement obligations;

    b)   extent of impediments if removed;

    c)   impact on victims; and

    d)   links to the Australian community, including:

    i)        strength, nature and duration of ties to Australia; and

    ii)       impact on Australian business interests

22. Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations”.

    BACKGROUND and offending

23. The Applicant was born in Myanmar in September 1996 and, as at the date of these reasons, he is aged 25 years and 10 months.[17] After arriving in Australia in May 2015 he was imprisoned in July 2019.[18] It is unclear to the Tribunal upon what date the Applicant was transferred into immigration detention, which presumably occurred once the Applicant was paroled. That being so, it seems to the Tribunal that the Applicant has been in the community for slightly over four years of the approximately seven years that he has resided in Australia.

    [17] Exhibit A2, Annexure R6, page 130.

    [18] Exhibit R1, s 501 G-Documents, G7, page 50.

24. Regarding his offending, the Applicant’s evidence is that “I have never been in a relationship. I have never had sexual contact with anyone outside of the offences”,[19] and that:

    On 4 November 2018, I committed serious offences. I became intoxicated throughout the night of the offences, not realising how much alcohol I had. I had forced myself on someone and had sexual contact with her without consent. I now understand what I did to the victim was so wrong.[20]

    [19] Exhibit R1, s 501 G-Documents, G36, page 165.

    [20] Exhibit A2, Annexure R6, page 131.

25. The Applicant has shown some insight into the seriousness of his offending and its treatment as such in Australia. Under cross-examination, the Applicant gave the following evidence:

    Ms Strugnell:   There is evidence before the tribunal that rape is illegal in Myanmar.

    Interpreter:     Yes, that’s correct, yes. Without consent, it is illegal, yes.

    Ms Strugnell:  Okay. So is it your evidence that you understood that it was illegal, but you were drunk?

    Interpreter:     I have learned some law in Australia during that time, but I never do any illegal things and I am not aware that this law is that strict, so like, that serious. So I learn now how serious it is.

    Ms Strugnell:   I find it some[what] implausible, since rape was also illegal in Myanmar, that you wouldn’t know that it was illegal in Australia as well. Would you like to comment on that?

    Interpreter:     I know that it is illegal, but I don’t think that it’s, like, they’ll take that serious. So I learned that how serious it is to do illegal in Australia.[21]

    [21] Transcript, page 47, lines 9-27.

26. The Tribunal has before it has several character references that largely reflect well upon him during his time in the Australian community. These references variously describe the Applicant as “a good young man”,[22] “dependable and responsible”,[23] “a good person”,[24] “incomparable”,[25] a “peacemaker”,[26] “an honest character”,[27] “very kind and supportive”,[28] and “ashamed” of his offending.[29] Ambiguously, and in the context of his offending, the Applicant is also described as someone who:

    … did not have much knowledge about how to communicate with female counterparts and how to convene (sic) his messages and thoughts to a girl who seemed to him and us a mature but in fact a very young lady.[30]

    [22] Exhibit R1, s 501 G-Documents, G19, page 115; Exhibit A1, page 48.

    [23] Exhibit R1, s 501 G-Documents, G21, page 117; Exhibit A1, page 47.

    [24] Exhibit R1, s 501 G-Documents, G22, page 118; Exhibit A1, page 42.

    [25] Exhibit R1, s 501 G-Documents, G23, page 119; Exhibit A1, page 44.

    [26] Exhibit R1, s 501 G-Documents, G24, page 120.

    [27] Exhibit A1, page 41.

    [28] Exhibit A1, page 45.

    [29] Exhibit A1, page 46.

    [30] Exhibit R1, s 501 G-Documents, G18, page 114.

27. The Applicant’s sister Ms NSH is an Australian citizen.[31] His brother Mr LU is an Australian permanent resident.[32] Both Ms NSH and Mr LU reside in Australia and the Applicant has lived with both.[33] The Applicant is the uncle to four minor children, being two children each through Ms NSH and Mr LU.[34]

    [31] Exhibit A1, page 63.

    [32] Exhibit A1, page 67.

    [33] Exhibit A1, page 64.

    [34] Exhibit A1, page 37, paragraph [4.14].

28. The Applicant’s father has passed away and a brother is missing after having been deported from Malaysia to Myanmar “At the end of 2012 or early 2013”.[35]

    [35] Exhibit A1, page 58.

29. The Applicant does not wish to return to Myanmar. He has placed a series of graphic photographs into evidence,[36] various news reports,[37] other reports,[38] and statute,[39] to indicate the difficulties he would face in Myanmar. His evidence is:

    If I were to return to Myanmar, I will be arrested by the military,

    If I was not arrested, I would still face many problems. I cannot get a job as I am illiterate in Burmese and there are not many jobs in Myanmar. It is a very poor country with poor living conditions, no welfare system or any financial assistance offered

    My mother is disabled and cannot care for anyone but herself …[40]

    [36] Exhibit A2, pages 62-129

    [37] Exhibit A1, pages 69-79, 282-286, 287-304, 305-336; Exhibit A2, pages 30-33, 34-61.

    [38] Exhibit A1, pages 80-275, 276-281, 337-351, 336.

    [39] Exhibit A1, pages 337-351.

    [40] Exhibit A1, page 51.

30. Specifically, regarding the Applicant’s mother:

    My mother is still residing in Myanmar. She has been diagnosed with cancer and suffers from a broken leg. She is in pain and cannot walk properly. I would like to visit her again, however, I cannot return because of my refugee status and my fear of being persecuted by the military. I do not have any identity documents left even if I wanted to return to Myanmar.[41]

    [41] Exhibit A2, Annexure R6, page 130.

31. The Applicant has limited contact with his mother. He explained:

    There are two reasons why I don’t contact my mum. The first reason is because every time when I talk with my mum, she is very sad and she is always crying and that make me cry. And the second reason is because there are, like, civil war in, like, Myanmar so, like, the war is happening right now, so the military cut off all the internet lines and then there is no line, yes.[42]

    [42] Transcript, page 13, lines 34-39.

32. It is unclear when the Applicant last physically saw his mother, however a letter from the Reverend “VCL” indicates she has visited Australia since the Applicant’s offending. On 5 March 2020, the Reverend “VCL” wrote of the Applicant:

    As a youth pastor, I personally know him and I recognised that he actively involved in youth activities such as youth worship, choir singing, Bible study and sporting events. He came to Australia as a refugee with emotional and psychological traumas he experienced in the past. He lived with his sister’s family. His single mother bears the burdens if caring family after his father passed away. When he was about to face the charge of his offence, his poor mother was granted visa to Australia and she was able to counsel and take care of him for a while. Despite physically handicap herself, she managed to come over Australia to face disgraceful crime his son committed and she tearfully cried over when prayer service was held at their house before the court sentenced.[43]

    [Emphasis added]

    [43] Exhibit R1, s 501 G-Documents, G20, page 116.

33. This evidence of the Reverend “VCL” does not sit neatly with the early evidence of Ms NSH, in respect of her mother’s ability to travel, who wrote on 23 May 2021 that:

    Due to the current political situation in Myanmar, our villagers have run into the forest and neighbouring country India to avoid being killed and tortured by the Myanmar military. However, my mother is unable to run due to her health condition and she remains at home constantly worrying about the arrival of Myanmar military into our village.[44]

    [Emphasis added]

    [44] Exhibit R1, s 501 G-Documents, G37, page 166.

34. Although in a later statement dated 12 June 2022, Ms NSH wrote:

    My mother was deeply shocked by [the Applicant’s] offences and came to Australia personally to apologise to the victim and her family after [the Applicant] was convicted and sentenced.[45]

    [Emphasis added]

    [45] Exhibit A1, page 60.

35. Ms NSH’s early evidence regarding her mother’s ability to travel also does not sit neatly with that of the Applicant’s sister-in-law who wrote:

    [The Applicant’s] mother who is my mother-in-law is a refugee herself in her own country moving from place to place. It is very unlikely that she will be able to support [the Applicant] upon his deportation.[46]

    [Emphasis added]

    [46] Exhibit A1, page 357.

1. In any event, the sentencing for which the Applicant’s mother travelled to Australia occurred on 4 July 2019. His Honour Judge Birmingham QC presided. In sentencing the Applicant for the three offences, His Honour outlined the offending as follows:

   At approximately 6 am on the morning of 3 November you went into the bedroom where she was sleeping. You woke the victim and asked for her father’s mobile number. At that stage her parents had left for work.

   She went through the contacts in her phone and provided you with her father’s mobile number. She then went back to sleep. You then lay beside her and touched her on the breast.

   In order to do so you placed your hands under the blanket to where she was lying and under the shirt that she was wearing. She was not wearing a bra at the time. And you touched her on the nipple area of her breast.

   The victim who was facing away from you grabbed your hand and pulled it away from her. However, you kept touching her under her shirt, skin on skin. She pushed your hand away from her on more than one occasion.

   At that point one of the sisters who had been sleeping on the other – with the other left the room. You then moved your hand down on to the victim’s pelvic area and ran your hand over her underwear and then beneath the pair of shorts she was wearing.

   She pushed your hand away. You then placed your hands underneath her underwear and rubbed her vagina, and then penetrated her vagina with your finger. That is count 2 [i]n the indictment.

   You then pulled her pants and underwear off and undid your own pants and underwear, and lay on top of her. You penetrated her vagina with your penis and engaged in sexual intercourse. It was unprotected sex.

   At that time, you were holding her down by her arms and tried to kiss her. She resisted and turned – throughout. The sister who had left the bedroom then opened the bedroom door and came back.

   And at that stage you got off and lay on the side of the bed and told – pulled up your pants and said you would be waiting for her. She got up and went to the toilet. You then tried to follow her and she pushed you out and had a shower.[47]

   [Emphasis added]

   [47] Exhibit R1, s 501 G-Documents, G7, page 42.

2. His Honour went on to remark:

   I accept also and acknowledge that you were in a position of trust insofar as you were permitted to remain in the house even though the parents had left to go to work and effectively allowed you to remain there in circumstances where their children were still asleep in the house. You violated that trust.

   There was in this case an element of forceful behaviour, forceful sexual penetration against her will. The circumstances of the victim are important. This was in her own home, in her own bed and against her will. Those are the memories that you created for her of her life.

   I accept that it was - there’s no - it’s not an aspect of recidivism. This was effectively isolated in its character and it was opportunistic. You took advantage of a circumstance that was there. And I accept also that alcohol may well have lowered the barrier of your capacity to appreciate that.

   But in the end it was an opportunistic incident where you sought to satisfy your own sexual gratification to the great harm to the - a young girl.[48]

   [Emphasis added]

   [48] Exhibit R1, s 501 G-Documents, G7, page 48.

3. In sentencing the Applicant, His Honour had regard to a psychological report prepared on 11 April 2019. Several risk factors of recidivism were identified in that report, using the Static-99-R and Risk of Sexual Violence Protocol. The risk factors include:

   … evidence of physical force when committing the offence; problems with self-awareness; evidence of alcohol misuse; difficulties establishing intimate relationships and; evidence of current suicidal ideation. Viewing the profile the broad risk estimation terminology of [the Applicant] being average risk of future sexual offending, as compared to the sexual offender population, seems appropriate.[49]

   [49] Exhibit R1, s 501 G-Documents, G17, page 112.

4. Aspects of this report are consistent with the report of Dr Watts’ report of 17 June 2021, where, when considering risk factors, he stated:

   There were problems related to substance abuse, particularly alcohol, and problems with intimate relationships (lack of having had a partner) as the associated risk factors. Clinically, if he addresses the alcohol, the likelihood of reoffending would be considered low.[50]

   [Emphasis added]

   [50] Exhibit R1, s 501 G-Documents, G35, page 161.

5. Dr Watts went on to report in answer to the question “Are there any identifiable causes or reasons for [the Applicant’s] offending?”, that:

   Essentially, there are three components: one is the heavy use of alcohol, two is the opportunistic situation, and the third is the lack of sexual relationships and resulting interest and desire.[51]

   [51] Exhibit R1, s 501 G-Documents, G35, page 162.

6. In giving his assessment of the Applicant’s current situation and level of rehabilitation, Dr Watts wrote:

   In my opinion, [the Applicant] should undertake alcohol counselling when he is in the community. At this stage, he is saying he will never drink again, which is a positive sentiment, but it needs to be shown to be possible.[52]

   [Emphasis added]

   [52] Exhibit R1, s 501 G-Documents, G35, page 163.

7. In conclusion, Dr Watts wrote the following summary and again emphasised the importance of the Applicant abstaining from alcohol:

   In summary, based on my clinical assessment of [the Applicant] and the sources of information I have had access to, I am of the opinion his risk of reoffending is currently medium-low based on an actuary assessment, or low based on clinical assessment, and will remain that will [sic] if he abstains from alcohol.[53]

   [Emphasis added]

   [53] Exhibit R1, s 501 G-Documents, G35, page 164.

8. The Tribunal notes that the Respondent was unable to cross-examine Dr Watts. Had the Respondent been able to cross-examine Dr Watts then it would have gone to his methodology and whether the results would have been skewed by certain answers given by the Applicant.[54]

   [54] Transcript, page 82, lines 12-18.

9. The Applicant has linked his risk of re-offending to his alcohol consumption. In a statement he wrote:

   I know I will never re-offend, on my release. I am not longer drink anymore now and future life, because I’m understood how bad alcohol and I don’t let myself suffering from by alcohol again.[55]

   [55] Exhibit A2, Annexure R6, page 131.

10. Nevertheless, the Applicant has not completed any alcohol rehabilitation courses as stated during his examination-in-chief.

    Ms Chen:So, [Applicant], you have completed any drinking rehabilitation courses or programs?

    Interpreter:     No.

    Ms Chen:        Why not?

    Interpreter:     I was told that I don’t have to do this kind of course. Because, my case is very lowest.

    Ms Chen:So, you mentioned that you were told that you don’t or you didn’t have to do the course; do you mean you didn’t have to do it or you were not eligible to do it?

    Interpreter:     I will have to do that. But, I was told that my case was in the very lowest.

    Ms Chen:All right. Did you any sex offender rehabilitation courses or programs?

    Interpreter:     No.

    Ms Chen:        Okay. Why not?

    Interpreter:     Still the case is in lowest. So, I wasn’t told to do that.[56]

    [56] Transcript, page 30, lines 35-47; page 31, lines 3-12.

11. Whilst imprisoned, the Applicant undertook a Community Based Health and First Aid course with the Red Cross and “has shown great development throughout this program in particular with his confidence”.[57] The Red Cross offer a mentor upon release from prison to “potentially reduce reoffending”, however it is unclear to the Tribunal how exactly this mentoring operates. This is especially so given the Applicant is in immigration detention.

    [57] Exhibit A2, page 135.

12. The Applicant has completed several courses whilst in prison.[58] They included the course “Who are you?” by Crossroads, which the Applicant completed on 27 April 2020.[59] The Applicant found this course to be particularly helpful in reforming his behaviour.[60]

    [58] Exhibit A1, page 6, paragraph [2.29].

    [59] Exhibit R1, s 501 G-Documents, G44, page 174.

    [60] Transcript, page 17, lines 1-3; page 30, lines 30-33.

13. The Applicant has expressed interest in, and been assessed as suitable for, a 20 week “Safecare Community-based group treatment for men with csa [Child Sexual Abuse] and CEM [Child Internet Pornography] offending”.[61] The cost is $100 per weekly session.[62] The four modules of this course are an introduction to a psycho-educational approach, childhood issues, empathy, and relapse prevention and positive sexuality. The course does not centrally address alcohol misuse.

    [61] Exhibit A2, page 22.

    [62] Exhibit A2, page 15.

14. On 14 April 2021, the Prisoners Review Board issued the Applicant a parole order with conditions that he accepted on 15 April 2021, where:

    The Board decided that your release would present an acceptable risk to the safety of the community due to:

    1.You being assessed as a low risk of reoffending and therefore not meeting the criteria for inclusion in treatment programmes.

    2.Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.

    3.You having no prior criminal history and the salutary impact of your first term of imprisonment and your first opportunity for parole supervision.

    4.Your parole plan which includes confirmed suitable accommodation, confirmed employment and support from prosocial family and community supports.

    5.The fact the conditions of parole will further reduce the risk to the safety of the community.

    6.The fact that your supervision for the remainder of your sentence in the community to monitor your behaviour, assist your reintegration and rehabilitation is more likely to offer more protection to the community in the long term than your release without any supervision at the end of your sentence.[63]

    [63] Exhibit R1, s 501 G-Documents, G34, page 155.

15. It is unnecessary to state the full requirements of the order, except to note that the Applicant is:

    1.To have no direct or indirect contact with the victim and family, not to attend the victim’s home, or [her] School.

    2.To have no unsupervised contact with female children under 18 years of age.

    …

    5.Not to consume alcohol.[64]

    [64] Exhibit R1, s 501 G-Documents, G34, page 156.

16. If released back into the Australian community, the Applicant’s former employer has indicated he would be re-engaged as “We particularly valued his low voltage wiring skills”.[65] However, it is unclear to the Tribunal of the extent of the Applicant’s former employer’s knowledge of his criminal offending and how his parole conditions would be managed.

    [65] Exhibit A1, page 352.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

17. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

18. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    a)   The nature and seriousness of the non-citizen’s conduct to date; and

    b)   The risk to the Australian community should the non-citizen commit further   offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

19. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. The Tribunal will now turn to addressing these considerations.

20. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

21. On 4 July 2019, the Applicant was convicted of three sexual offences against a child in the District Court of Western Australia at Perth and imprisoned.

22. Accordingly, the Applicant’s offending is viewed very seriously by the Tribunal.

23. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)   causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)  crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (i)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

24. In his sentencing remarks, His Honour stated:

    Because of the need to protect vulnerable, young children the primary sentencing consideration for offences of this type are punishment of the offender and personal and general deterrence. As a result, matters personal to you carry less weight.[66]

    [Emphasis added]

    [66] Exhibit R1, s 501 G-Documents, G7, page 48; Exhibit A1, page 11, paragraph [4.7.13].

25. The victim of the Applicant’s offending was not elderly or disabled. She was nevertheless a vulnerable, young child.

26. Accordingly, the Applicant’s offending is viewed seriously by the Tribunal.

27. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[67]

    [67] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].

28. Although the primary sentencing consideration contained in His Honour’s remarks goes to the issue of general deterrence, the total effective sentence for the Applicant’s offending was a period of three years and six months imprisonment with eligibility for parole after two years.[68] The Tribunal considers this custodial sentence to be objectively serious.

    [68] Exhibit R1, s 501 G-Documents, G7, page 50.

29. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

30. His Honour found that the Applicant’s offending was “effectively isolated in its character and it was opportunistic”.[69] Nevertheless, and based on police records, an allegation was put to the Applicant that he had indecently touched the Applicant in the past.[70] The Applicant denied this allegation in terms of any indecent touching, saying that:

    I’m not aware of that, but what I remember is when I visit the family home, she opened the door and then I might have touched her, but not intention to touch her.[71]

    [69] Exhibit R1, s 501 G-Documents, G7, page 48.

    [70] Transcript, page 47, lines 38-44.

    [71] Transcript, page 47, lines 1-3.

31. The Applicant has not been charged for any previous indecent touching.[72] Accordingly, the Tribunal places little weight on this allegation and certainly does not find that it constitutes previous offending.

    [72] Transcript, page 66, line 24.

32. Noting the isolated and opportunistic offending already outlined, and the absence of any prior or subsequent offending, the Tribunal is satisfied that the Applicant’s offending is infrequent and there is no trend of increasing seriousness.

33. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

34. There is no evidence before the Tribunal that the Applicant has repeated his offending. Therefore, the Tribunal does not regard this factor to be relevant.

35. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

36. There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.

37. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.

38. There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.

39. The Tribunal does not consider any of the factors (e), (f) or (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

40. Paragraph 8.1.2(1) provides that 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.

41. 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.

42. Paragraph 8.1.2(2) provides that 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).

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

1. The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

2. The nature of the Applicant’s offending to date is very serious. No matter what apologies have been communicated between families, or expressions of remorse made, in the end this was an opportunistic crime committed by the Applicant for his own sexual gratification to great harm to a young girl.[73] The community’s tolerance for such serious harm is low. Indeed, the Tribunal is satisfied that this 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 would be unacceptable.

   [73] Exhibit R1, s 501 G-Documents, G7, page 48.

   Likelihood of engaging in further criminal or other serious conduct

3. The Tribunal accepts the decision of the Prisoners Review Board in issuing its parole order that the Applicant was assessed as a low risk of reoffending. However, the Tribunal only does so for the duration of any parole as the terms of that parole prohibit direct and indirect contact with the victim and her family, her home, and her school. The terms of parole also prohibit unsupervised contact with female children. Of utmost importance, according to the recidivist risk as stated by Dr Watts, is that the terms of parole prohibit alcohol consumption by the Applicant.

4. After the expiry of the Applicant’s parole on 3 January 2023, he would have no constraints upon him beyond being a Reportable Offender. Despite his positive sentiments towards abstaining from alcohol, the Applicant would be at liberty to consume alcohol. The evidence is clear that this would increase the Applicant’s risk of recidivism.

5. Considering all the material before it, the Tribunal regards the Applicant as possessing a low to medium likelihood of engaging in further criminal or other serious conduct if released into the Australian community. Given the very serious nature of the Applicant’s sexual crimes against a vulnerable child from a position of trust, this 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 is unacceptable.

   Conclusion: Primary Consideration 1

6. Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

7. Paragraph 8.2 of the Direction provides:  

   (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

   (2)This consideration is relevant in circumstances where:

   a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

   b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

   (3)In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

   a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

   b)the cumulative effect of repeated acts of family violence;

   c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

   i.the extent to which the person accepts responsibility for their family violence related conduct;

   ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

   iii.efforts to address factors which contributed to their conduct; and

   d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

8. Issues of family violence do not arise in this matter and therefore this consideration is not relevant.

   Conclusion: Primary Consideration 2

9. Primary Consideration 2 is not relevant.

   Primary Consideration 3: The best interests of minor children in Australia

10. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

11. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e)whether there are other persons who already fulfil a parental role in relation to the child;

    f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

12. The Applicant has made extensive submissions regarding the best interests of the Applicant’s four nieces and nephews. The views of these children are expressed through these submissions and the evidence their parents.

13. Ms NSH has a daughter aged 13 years and a son aged 8 years. Mr LU has a son aged 10 years and a daughter aged 2.5 years.[74] Given the Applicant’s period in custody and immigration detention in recent years, and his non-parental relationship, the Tribunal places less weight on these relationships.

    [74] Exhibit A1, page 24, paragraph [4.9.2].

14. The children are “not aware of the Applicant’s incarceration and visa cancellation issues”.[75] Although they have maintained contact with the Applicant by FaceTime and telephone, this is not regarded as sufficient to maintain a meaningful relationship.[76]

    [75] Exhibit A1, page 25, paragraph [4.9.9].

    [76] Transcript, page 76, lines 29-33.

15. There is no evidence before the Tribunal to suggest that the Applicant’s nieces or nephews have suffered or experienced any physical or emotional trauma arising from his conduct. However, the terms of the Applicant’s parole order indicate that his nieces may be at risk of sexual abuse if the Applicant were left unsupervised in their company before the expiry of the parole order. This risk is mitigated by the parole order’s prohibition of alcohol consumption.

16. Given the relatively young age of the children, it is possible that the Applicant could play a positive parental role in their future provided he did not reoffend or consume alcohol.

    Conclusion: Primary Consideration 3

17. Primary Consideration 3 has limited weight in favour of revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

18. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

19. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

20. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

21. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

22. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[77]

    [77] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

23. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

    Analysis – Allocation of Weight to this Primary Consideration 4

24. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    (a)The Applicant moved Australia when he was 18 years old and is now aged 25 years.

    (b)The Applicant remains close with his siblings, who have children.

    (c)There is little evidence before the Tribunal of the Applicant’s employment history, although he has some employment prospects.

    (d)The Applicant has committed sexual crimes against a vulnerable young child whilst in a position of trust and whilst intoxicated.

    (e)The Applicant’s criminal conduct is very serious.

    (f)The Applicant’s demonstrated preparedness to commit a crime raises serious character concerns.

    Conclusion: Primary Consideration 4

25. Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

    Other Considerations

26. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.

    (a) International non-refoulement obligations

27. Despite the Applicant stating that he is a citizen of Myanmar,[78] he has contended during these proceedings that it is “very likely” that he is now rendered stateless “by obtaining the permanent residency of Australia”.[79] In comparison, the Applicant’s evidence is that his brother, Mr LU, is “Burmese”.[80] However, Mr LU is an Australian permanent resident. The evidence before the Tribunal does lead it to be satisfied of the Applicant’s contention of statelessness.

    [78] Exhibit R1, s 501 G-Documents, G9, page 54.

    [79] Exhibit A1, page 36, paragraph [4.11.10].

    [80] Exhibit R1, s 501 G-Documents, G12, page 84.

28. The Applicant makes several claims with respect to Australia’s non-refoulement obligations,[81] essentially being that he “will be immediately subject to the potential ongoing war crimes committed by the Myanmar Military”.[82]

    [81] Exhibit A1, pages 28-34.

    [82] Exhibit A1, page 31.

29. In addition to the oral and written evidence of witnesses, it has already been noted that he has placed a series of graphic photographs into evidence,[83] various news reports,[84] other reports,[85] and statute,[86] to indicate the difficulties the Applicant would face in Myanmar.

    [83] Exhibit A2, pages 62-129

    [84] Exhibit A1, pages 69-79, 282-286, 287-304, 305-336; Exhibit A2, pages 30-33, 34-61.

    [85] Exhibit A1, pages 80-275, 276-281, 337-351, 336.

    [86] Exhibit A1, pages 28-34.

30. At the centre of the Applicant’s claims are that he is a refugee as recognised by the United National High Commissioner for Refugees, he was born and raised in Chin State and is of Chin ethnicity, he is a Christian, that he fled persecution, and arrived in Australia on a Humanitarian visa in 2015. The Tribunal notes the contention that “the Applicant has never returned to Myanmar since his arrival in 2015”:[87]

    [87] Exhibit A1, pages 29.

31. The Tribunal is troubled by the evidence that the Applicant’s mother seems able to visit Australia, and return to Myanmar, seemingly without harassment from authorities, but that it is also contended that the Applicant “will be immediately subject to the potential ongoing war crimes committed by the Myanmar Military” if he returns.[88] Seemingly, the Tribunal does not have the full scope of evidence before it regarding the Applicant’s mother’s freedom to travel, which it considers central to the weight it should place on the Applicant’s claims.

    [88] Exhibit A1, page 31.

32. It is not in dispute in this matter that it is open to the Applicant to apply for a protection visa. Therefore, it is open to the Tribunal to defer assessment of whether the Applicant is owed non-refoulement obligations on the basis that it is open to him to apply for a protection visa.[89] Given the evidence before it, the Tribunal views such a deferment of assessment as the fairest approach to the Applicant.

    [89] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [30].

33. This Other Consideration is therefore not relevant to the determination of this application, although some aspects of the Applicant’s claims may be relevant to his claims of the extent of impediments if removed.[90]

    [90] Minister for Home Affairs v Omas [2019] FCAFC 188, [41].

    (b) Extent of Impediments if Removed

34. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

35. Having regard to the abovementioned matters:

    (a)The Applicant is aged 25 years and the evidence before the Tribunal does not support the making of strong findings regarding physical ill health.[91]

    (b)The Applicant’s evidence is that he does not speak Burmese,[92] and that he speaks Hakha Chin. He is of Chin ethnicity and is a practising Christian. Accordingly, the Tribunal finds that there may be language or cultural barriers if the Applicant is removed to Myanmar. These barriers may be substantial if the Applicant must reside outside of his home state, being Chin State.

    (c)The Applicant’s mother lives in Myanmar, but his sister and brother live in Australia. Given the Applicant’s mother’s travel to Australia during his criminal proceedings, the Tribunal is satisfied that she would be of some social support to the Applicant were he returned to Myanmar. The Applicant’s evidence is that “I cannot get a job as I am illiterate in Burmese and there are not many available jobs in Myanmar,” and that living conditions in Myanmar are poor and that welfare is not available.[93] That the Applicant “cannot get a job” is a broad assertion with little corroboration, although the Tribunal accepts that employment may be difficult to obtain. The Tribunal also accepts that the medical and economic support available to the Applicant in Myanmar would be significantly lesser than what he would otherwise be able to access in Australia.

    [91] Exhibit R1, s 501 G-Documents, G17, pages 109-110.

    [92] Transcript, page 22, line 34.

    [93] Exhibit A1, page 51.

36. Considering the evidence before the Tribunal, the extent of impediments if removed carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    (c) Impact on victims

37. This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

1. The Applicant has contended that “neutral or favourable weight should be given to this consideration”.[94] The basis for this contention is the Applicant’s parole order, which expires on 3 January 2023, and that there would be no specific impact on the victim from a decision to revoke the visa cancellation.

   [94] Exhibit R1, s 501 G-Documents, G34, pages 155-156.

2. The circumstances in which the Tribunal would ever place favourable weight on this consideration in circumstances where a vulnerable child has been sexually assaulted can be considered remote.

3. In his sentencing remarks, His Honour quoted the victim as saying:

   I don’t feel safe in my own home anymore, even around people I love. My anxiety attacks are triggered when I’m around a crowd when my brain just replays the incident in my head. I feel disgusted with myself. I feel worthless, vulnerable.

   I have lost a huge part of myself, which I can’t get back and I don’t know who I am anymore. My whole life has changed forever and that’s what I hate most.[95]

   [Emphasis added]

   [95] Exhibit R1, s 501 G-Documents, G7, page 43.

4. Of the victim, His Honour remarked to the Applicant that: “You have irreparably damaged her life,” and that:

   She has had to keep a secret what you have done to her. She has this fear inside her that it could happen again.[96]

   [96] Exhibit R1, s 501 G-Documents, G7, page 42.

5. The Applicant’s mother’s actions in visiting Australia make clear that the Applicant’s family and victim’s family are known to each other. Indeed, prior to the Applicant’s offending he had visited the victim’s house.[97] The Applicant and the victim are known in the same social circles. [98] Given that the Applicant’s parole expires on 3 January 2023, it is reasonably foreseeable that the Applicant and the victim may have contact after that date. Such contact may be direct, or indirect. It may be deliberate, or incidental. It may occur in a crowd.

   [97] Exhibit R1, s 501 G-Documents, G7, page 40.

   [98] Exhibit R1, s 501 G-Documents, G18, page 114.

6. The Tribunal places weight on the victim’s anxieties and feelings of unsafeness and vulnerability. The Tribunal is satisfied that the victim may be negatively impacted from a decision to revoke the visa cancellation if she has contact with the Applicant after the expiration of his parole, or apprehends any such contact. Accordingly, this consideration weighs heavily against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

   (d) Links to the Australian Community

7. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

   ·the strength, nature, and duration of ties to Australia; and

   ·the impact on Australian business interests.

   The strength, nature, and duration of ties to Australia

8. The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia.

9. The character evidence already noted by the Tribunal indicates that the Applicant is strongly community minded, is active in his church, and is a good friend to many people.

10. The Applicant has a limited employment history and was in receipt of Centrelink benefits at the time of sentencing.[99] Nevertheless, he possesses some vocational skills and holds some employment prospects.[100]

    [99] Exhibit R2, s 501 G-Documents, page 44.

    [100] Exhibit A3, page 352.

11. In his favour, the Tribunal has already noted the Applicant’s family ties to Australia, that the Applicant’s sister Ms NSH is an Australian citizen,[101] and his brother Mr LU is an Australian permanent resident.[102] Ms NSH and Mr Lu would be negatively impacted were the Applicant not released into the Australian community.

    [101] Exhibit A1, page 63.

    [102] Exhibit A1, page 67.

12. Balancing the considerations above, the Applicant only lived in Australia between May 2015 and November 2018, being three years and five months, before he committed very serious criminal offences against a vulnerable child.

13. Given the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal places limited weight in favour of revoking the Applicant’s mandatory visa cancellation.

    Impact on Australian business interests

14. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Findings: Other Considerations

15. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)International non-refoulement obligations: not relevant.

    (b)Extent of impediments if removed: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    (c)Impact on victims: weighs heavily against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    (d)Links to the Australian community: carries limited weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    CONCLUSION

16. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.

17. Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision.

18. In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds follows:

    (a)Primary Consideration 1 weighs very heavily against revocation.

    (b)Primary Consideration 2 is not relevant.

    (c)Primary Consideration 3 has limited weight in favour of revocation.

    (d)Primary Consideration 4 weighs very heavily against revocation.

    (e)The weight attributable to the four-listed Other Considerations is as found above.

19. The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Considerations 1 and 4 outweighs the weight it has allocated to the remaining Primary and Other Considerations.

20. A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.

21. Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    Decision

22. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 11 May 2022 that the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

........................... [Sgnd]…......................

Associate

Date of Decision:

Date of Reasons:

4 August 2022

25 August 2022

Date of Hearing:

27 & 28 July 2022

Solicitor for the Applicant:

Ms Q Chen of Tang Law

Solicitor for the Respondent:

Ms J Strugnell
Minter Ellison

Annexure A – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
A1	Statement of Facts, Issues & Contentions and Annexures: A.    Statement of Facts, Issues & Contentions and Annexures - Part 1 B.    Annexures - Part 2 C.   Annexures - Part 3 D.    Annexures - Part 4	A	Various	13 June 2022
A2	Applicant’s submissions in reply to Respondent’s Statement of Facts, Issues & Contentions 1.    Letter from Chamarette & Associates, dated 16 June 2022 2.    Statement of Mr ”DH”, undated 3.    UN Special Rapporteur speech 4.    UN Special Rapporteur report 5.    Photographs 6.    Statement of the Applicant dated 14 June 2022 7.    Letter from Australian Red Cross, dated 22 March 2021	A	Undated	14 July 2022
A3	Brief to psychologist, Dr Phil Watts	A	26 May 2022	20 July 2022
A4	Application for review	A	19 May 2022	19 May 2022
A5	Notification of decision not to revoke visa cancellation	A	12 May 2022	19 May 2022
R1	Section 501 G-Documents	R	Various	1 June 2022
R2	Supplementary G-Documents	R	Various	30 June 2022
R3	Statement of Facts, Issues & Contentions	R	30 June 2022	30 June 2022