Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2023] AATA 3063

Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3063 (25 September 2023)

Division:GENERAL DIVISION

File Number(s):      2023/5390

Re:Hayden John Smith  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date of decision:                  25 September 2023

Date of written reasons:        27 September 2023

Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Hayden John Smith’s Class TY Subclass 444 Special Category (Temporary) visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) Visa under section 501(3A) – whether there is another reason to revoke the cancellation – sexual offence against child – seriousness of offence – low risk of re-offending – unacceptable risk of re-offending - protection of Australian community – best interests of minor children - strength, nature and duration of ties to Australia – Expectations of the Australian community – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)
Crimes Act 1900 (NSW)

CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

REASONS FOR DECISION

27 September 2023

Mr Rob Reitano, Member

1. Hayden John Smith (Mr Smith) is a citizen of New Zealand who has been living in Australia for 17 years as the holder of a Class TY Subclass 444 Special Category (Temporary) visa (visa). On 1 September 2022, Mr Smith was convicted and sentenced in the District Court of New South Wales (District Court) to a term of 2 years and 3 months imprisonment for the offence of having sexual intercourse with a 15 year old child.

2. A consequence of his sentence was that his visa was required to be cancelled under s.501(3A) of the Migration Act 1958 (Act). The visa was required to be cancelled because a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was satisfied that Mr Smith failed the character test in ss.501(7)(c) of the Act, as he had been sentenced to a term of imprisonment of more than 12 months and was then serving that sentence full-time in a custodial institution.

3. On 27 September 2022, Mr Smith made representations to the Minister requesting revocation of the decision cancelling the visa. On 18 July 2023, a delegate of the Minister considered the representations but was not satisfied that either of the preconditions to revocation, satisfaction about passing the character test or satisfaction that there was ‘another reason’ to revoke the cancellation, had been met, and so the decision cancelling the visa remained. 

4. Mr Smith asks the Tribunal to review the delegates decision with the aim of having that decision set aside and substituted with a decision revoking the cancellation of his visa. The practical effect of that would grant Mr Smith the opportunity to remain and continue living lawfully in Australia.

5. I decided to set aside the decision refusing to revoke the decision cancelling the visa and to substitute, in its place, a decision revoking the cancellation of the visa. These are my reasons for that decision.  

   ISSUES

6. The issue is whether I am satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’ which is one of the two bases in s.501CA(4)(b) upon which the cancellation of a visa can be revoked. The other basis is in s.501CA(4)(b) requires satisfaction that Mr Smith passes the character test in s.501, which Mr Smith cannot do because of the length of his sentence to imprisonment.

   IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

7. Satisfaction about ‘another reason’ why the decision cancelling the visa should be revoked requires the making of an evaluative judgment about whether there is a reasoned basis for revoking the delegate’s decision to cancel the visa.

8. The satisfaction as to the existence or non-existence of ‘another reason’ is guided by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).  The Tribunal is required by s.499(2A) of the Act to comply with the Direction.

9. The Direction identifies principles that are to be applied by a decision maker in making decisions about visa cancellation. It is not necessary to set out all the principles or summarise them here. Nonetheless it will become apparent that the principle in paragraph 5.2(6) of the Direction is particularly important in this case so I should set it out:

   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 8.5(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.

10. Aside from emphasising that each case is fact-centric, it is important to observe that the principle leaves open that there may be cases involving serious conduct, or conduct which if repeated would result in serious harm, where strong countervailing considerations might be sufficient to justify revoking a mandatory cancellation. Specifically, where conduct mentioned in paragraph 8.5(2) (which for present purposes includes sexual crimes against children) of the Direction is concerned, strong countervailing considerations ‘may be insufficient in some circumstances even if the person does not pose a measurable risk of causing harm to the community’. Again, the prospect that such countervailing considerations may be sufficient to justify revoking a mandatory cancellation of a visa is left open.

11. The Direction also refers to ‘considerations’ which contain matters that are to be considered insofar as they are relevant in making a decision. There are two types of considerations which are referred to as ‘primary considerations’ and ‘other considerations’.

12. The ‘primary considerations’ are:

    ·protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

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

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.[1]

    [1] Paragraph 8 of the Direction.

13. The ‘other considerations’ are:

    ·legal consequences of the decision;

    ·extent of impediments if removed from Australia;

    ·impact on victims; and

    ·impact on Australian business interests

    ·any other considerations that the Tribunal considers relevant.[2]

    [2] Paragraph 9 of the Direction.

14. Further, the Direction sets out within each consideration particular matters that must be taken into account to the extent that they are relevant.

15. The obligation to consider matters raised by the considerations, and to take into account the various matters within each of them, carries with it recognition that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people’.[3] The obligation to consider matters does not involve some theoretical or esoteric exercise. Nor does it involve completing a mere checklist of matters that must be ticked and crossed off in some mechanical way. The decision to be made involves something that is likely to have a real, lasting, even lifelong, effect for many people including the applicant seeking to have a decision cancelling her or his visa revoked, given that, absent revocation, an applicant will, in the ordinary course, be excluded from Australia and not permitted to return. Further, there are ramifications for an applicant’s family, children, friends, and associates which are significant. There are also ramifications, again potentially far-reaching ones, for the community as well. All of this points to the need to carefully consider all matters that are potentially relevant to the decision being made weighing up all of the individual and public interests that might or will be affected.

    [3] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

16. It is necessary to consider the matters that are relevant to the primary and other considerations in turn, noting that neither party in this review suggested that considerations related to conduct involving family violence, the impact on victims, extent of impediments if removed from Australia and impact on Australian business interests were relevant. I am satisfied that each of those considerations are irrelevant and there is nothing that needs to be considered as an ‘other consideration’. It is not necessary to say more about the legal effect of the decision other than if the decision cancelling the visa is not revoked, Mr Smith will be returned to New Zealand, and if it is revoked, he will be able to remain in Australia.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

17. The Direction requires that I consider the nature and seriousness of Mr Smith’s criminal offending and the risk to the Australian community, should Mr Smith re-offend or engage in other serious conduct. I am to have regard to the fact that the Australian Government and community regard sexual crimes and crimes that involve violence against children as very serious. The Direction informs the decision maker that those kinds of offences are regarded by the Australian Government and the Australian community as very serious, regardless of the sentence that may have been imposed on an offender. The Direction says I must have regard to the sentence imposed (although the sentence is not relevant to crimes of violence committed against children or women), the frequency of the offending, the existence of any increased trend in seriousness and the cumulative effect of repeat offending.

18. It is necessary to consider Mr Smith’s criminal offending. In April 2017 Mr Smith was dealt with in the Magistrates Court of Western Australia for an offence of driving without a licence and fined $150. No conviction appears to have been recorded for that offence, at least according to the NSW Department of Corrective Services Conviction, Sentences and Appeals Report. In any event, the offence seems trivial given the small fine that it attracted.

19. The more significant offence Is the offence that led to the cancellation of the visa which was the result of Mr Smith being convicted and sentenced in the District Court on 1 September 2022, for an offence of sexual intercourse with a person older than 14 years and younger than 16 years, being 15 years. When Mr Smith was sentenced, two other offences were taken into account which involved a second count of sexual intercourse with the child and an offence of sexually touching a child older than 10 years and younger than 16 years. Those two further offences were taken into account as part of the sentencing as they were preparatory to the commission of the main offence.

20. The facts were agreed to in the criminal sentencing. The offending occurred on 10 April 2021. Mr Smith was 35 years of age at the time. The child was 15 years of age. Mr Smith and his girlfriend were managers at a store in country New South Wales. The child worked part time in the store. The night before the offending took place, the child slept at Mr Smith’s house where he lived with his girlfriend. The child slept on the couch. Mr Smith and his girlfriend slept in their bedroom. In the morning, the child woke after Mr Smith’s girlfriend had left for work. She walked past Mr Smith’s bedroom to the bathroom. She saw Mr Smith laying on his bed playing on his phone. While in the bathroom Mr Smith texted her and invited her to come to his bedroom to talk. She went to the bedroom and sat on the bed where Mr Smith was, and they talked. The two then had what was described as a ‘play fight’ for about 20 minutes. The child was ‘worn out’. Mr Smith laid on top of her whilst she was on her back pinning her arms and legs down. It was not suggested in the criminal sentencing that this was a forceful act. Mr Smith started to kiss her and touched her sexually. She moved her head away, but he continued. He then removed her clothing and put his finger in her vagina. He then had penile vaginal intercourse until he ejaculated in her vagina. Mr Smith then got ready for work and the two went to his car to go to work. Mr Smith spoke to the child enquiring about whether she would tell anyone. She said she would not. Mr Smith told the child that he would get ‘in so much fucking trouble’ if she told anyone.

21. On 11 April 2021, the child told Mr Smith’s girlfriend what had happened and by the following day the child’s mother had become aware of what happened. Two days later Mr Smith was arrested and charged. He made full admissions. He was refused bail and remained in custody until he was sentenced on 1 September 2022.

22. The offence which carried with it the conviction is objectively a very serious offence involving a sexual crime against a child. The other two offences that were taken into account in the sentencing which were preparatory to the sexual intercourse offence, were equally very serious. The offences were committed against a child who is amongst the class of vulnerable members of the community and who are particularly vulnerable to sexual exploitation by adults. The sentencing judge observed that although Mr Smith was not in a position of trust, he exploited his position of authority over the child. The sentencing judge considered that the level of seriousness was increased by the fact that Mr Smith had penile vaginal sexual intercourse with the child involving him in ejaculating inside the child. There were some things that made the offending less serious which were that there was no planning involved, the offence was opportunistic, and it happened over a very short period. The maximum penalty for the offence was 10 years imprisonment which also indicates an objectively very serious offence. The sentence imposed was two years and three months imprisonment, which underscores that the offence is to be regarded as very serious.

23. Fairly viewed, there is no relevant increase in frequency or seriousness involved in the offence in 2017 and those in 2021. They are very different offences at opposite ends of the spectrum of seriousness. There is no reasonable basis for suggesting that Mr Smith’s offending shows some trend of increased frequency or seriousness. The offence in 2017 barely, only infinitesimally, adds to the seriousness of the 2021 offences. Yet, the very nature of the 2021 offences means that Mr Smith’s overall criminal offending can only, and must be. regarded as very serious.

24. Next, the Direction requires me to consider the harm to the Australian community and members of the community should Mr Smith offend again. When Mr Smith was sentenced, the sentencing judge referred to the ‘enormous impact and ongoing effects’ the offending had and would continue to have on the child. Any repeat offending would have the same consequence which is undoubtedly very serious. There are as well the other social costs associated with criminal offending, but these are less serious than the impact on any individual child of repeated similar offending. The harm that would be caused by repeat offending is significant and very serious in itself.

25. Finally, the Direction requires me to consider the likelihood of Mr Smith engaging in further criminal conduct in the future, having regard to the evidence and information submitted to me on the risk of re-offending and any rehabilitation to date.

26. The sentencing judge had before him several reports that had been prepared for sentencing that were directed to the issue of Mr Smith’s likelihood of repeat offending. The sentencing judge rejected those reports for several reasons including: that they did not expose any process of reasoning to the conclusions they arrived at; that they used phrases like ‘average risk’ which were uncertain and ambiguous; they included assumptions about facts such as ‘previous minimi[s]ation of sexual violence’ and a ‘history of attitudes that support sexual violence’ that were not in evidence. The sentencing judge considered it significant that both reports omitted any consideration of two important factors which were Mr Smith’s age of 35 years at the time of offending, and that the offences for which he was being sentenced was his only criminal offence (the 2017 offence did not appear to carry a conviction). The sentencing judge rejected both reports because he did not find them useful in assessing the risk of re-offending, nor the prospects of rehabilitation. I reject them for much the same reasons and also because I have more up to date material concerning Mr Smith’s risk of re-offending. Before dealing with that, it is necessary to consider the sentencing judges assessment of Mr Smith’s risk of re-offending and prospects for rehabilitation because that is relevant information about the issue of the likelihood of Mr Smith re-offending.    

27. The sentencing judge applied what he described as a common-sense approach to the likelihood of Mr Smith re-offending. Mr Smith’s lack of a criminal record, his mature age (people who start criminal offending late in life are generally regarded as less likely to be recidivists), the opportunistic nature of his offence, the absence of drugs in the offending and the lack of planning were all matters the sentencing judge considered relevant to an assessment of the likelihood of repeat offending. In addition, the sentencing judge referred to the deterrent effect in Mr Smith’s case of him spending time in prison and of being placed on the sex offender’s register. The sentencing judge concluded that the likelihood of Mr Smith re-offending to be low, and his prospects of rehabilitation to be favourable.

28. The most recent opinion about Mr Smith’s risk of re-offending is found in a report dated 18 August 2023 prepared by Dr Bruce Stevens, a Clinical and Forensic Psychologist. That report sets out Dr Stevens broad agreement with the views of the sentencing judge in concluding that Mr Smith’s risk of re-offending is low when ‘compared to a group that have offended in the past’. In his oral evidence, Mr Stevens made clear that he considered Mr Smith’s prospects of re-offending to be low albeit over and above the risk presented by those who have not offended before. That report sets out, in a reasoned way, the foundations or underlying basis for the opinions expressed.

29. The Minister suggested that I should be cautious in accepting Mr Smith’s remorse as genuine given that at times he has shown less than complete insight into his wrongdoing by claiming the child had consented. That suggestion comes from a pre-sentence report prepared in March 2022 and was in a context where Mr Smith, despite referring to the child’s ‘consent’, also accepted his own responsibility for the offending. Mr Smith’s lack of appreciation of the inability of a child to consent to sexual activity is of some concern, but his overall understanding that he was the wrongdoer in everything that happened, and the tremendous suffering he caused the child by his wrongdoing, puts that into a particular context. His statements of remorse to Dr Stevens and in this review suggest he has a sound insight into his offending and that his remorse is genuine.

1. Further, the Minister submitted that I should also be cautious in approaching the question of the likelihood of re-offending without Mr Smith having undertaken ‘counselling with a Forensic Psychologist with a focus on desistance from sexual offending, reducing recidivism, and relapse prevention’ as recommended by one of the authors of the reports considered and rejected by the sentencing judge. Apart from the fact that there is no disclosed reasoning about why Mr Smith required such counselling, which is consistent with the sentencing judge’s other criticisms of that report, I am not aware one way or the other about whether Mr Smith has even had the opportunity whilst in prison and detention to avail himself of that kind of counselling. In any event, I note Dr Stevens, in his most recent report, recommends that Mr Smith receive ongoing monthly counselling, but it does not seem to have been a factor that was important to his assessment of the likelihood of Mr Smith re-offending, and seems to have more to do with Mr Smith’s depressive disorder. Dr Stevens, in his oral evidence, suggested while counselling connected to his offending would be positive, he did not consider it to be mandatory or required. I accept his evidence.

2. There are some factors that I consider particularly important that confirm my evaluation of Mr Smith’s likelihood of re-offending being low. First, there is the fact that Mr Smith admitted the offences with which he was charged at the first reasonable opportunity to do so, exhibiting his genuine remorse, contrition, and acceptance of responsibility for his wrongdoing. Second, I should add to the sentencing judges list of deterrent effects the fact that Mr Smith has now been brought to the very brink of being excluded from Australia such that he will forever be reminded of the likely consequence for him of re-offending, namely his exclusion from Australia. I should add that in saying that it should not be thought that I do not accept Mr Smith’s evidence that he will always carry with him a reminder of his offending because of the deep shame it has brought to him. Thirdly, I should have regard to the fact that Mr Smith has now completed his period of imprisonment. I should properly have regard to the rehabilitative effects that is likely to have had especially because the sentencing judge considered his prospects of rehabilitation favourably. Fourthly, I have had the benefit of seeing and hearing Mr Smith give evidence. I consider that he is not only truthful but also genuine in his heartfelt and deep sorrow for his wrongdoing. I consider Mr Smith’s likelihood of re-offending to be low.

3. The Minister submitted that Mr Smith’s offending conduct is so serious that any risk of repetition is unacceptable. There is no doubt that sexual offences against children, with their potential to carry lifelong psychological and emotional trauma to their victims, are amongst the kind of offences that carry consequences that the Australian community should not be exposed to and, so, are in every sense of the word, unacceptable. The conduct here is so serious especially having regard to the harm that would be caused if it were repeated that even the low risk of repetition is unacceptable.

4. I consider that this consideration weighs firmly against revocation of the decision cancelling the visa having regard to it very serious nature and the harm that would be caused if it were repeated.

   STRENTGH, NATURE AND DURATION OF TIES TO AUSTRALIA

5. The Direction requires me to consider the impact of my decision upon Mr Smith’s immediate family members in Australia where they are Australian citizens, Australian permanent residents, or people with a right to lawfully remain in Australia indefinitely. The Direction requires me to give more weight to this consideration where the ties involve children in those categories. The Direction requires that I consider the strength, duration and nature of family ties or social links generally to people in those categories. Further, the Direction requires me to consider the strength, nature and duration of other ties Mr Smith has to the Australian community having regard to the length of time Mr Smith has lived in Australia and to give more weight to the time he has spent positively contributing to the Australian community.

6. Mr Smith has what he describes as a de facto partner, TW whom he was not living with when he went to prison. Mr Smith and TW have a daughter who was about two months old when Mr Smith entered prison. At that time that his daughter was born, Mr Smith was living with his then girlfriend and not with TW. Mr Smith said he formally commenced a ‘committed’ relationship with TW in February 2022 whilst he was in prison, even though they first met in about December 2017 and have been friends since then. They have remained in constant contact by telephone and other media since Mr Smith has been in prison, and more so given Mr Smith’s greater flexibility to communicate while in immigration detention. The pandemic, and the distance between where TW lives and where Mr Smith was held, whether in prison or in detention, seems to have been the operative reason for why she has not visited him. I accept Mr Smith and TW have a committed relationship albeit in some thing of its early stages. They have for about five or so years had a close friendship.

7. TW has three other children who are aged 15, 9 and 7 years of age. All of them have met Mr Smith and, on all accounts, have a good relationship with him. I will say a little more about them later when I consider the best interests of minor children. Mr Smith proposes to live with his partner, and the children if he is allowed to remain in Australia. His partner and the children are all Australian citizens. They are all Indigenous Australians.  

8. Mr Smith’s parents are permanent residents of Australia who came to Australia in 2003. They are close to their son and speak to him regularly by phone despite him being in detention. They currently live with one of their daughters-in-law in Adelaide with their four grandchildren who are aged about 17, 16,14 and 11 years of age. They are all permanent residents of Australia as well. Their son, the children’s father, died in a motor vehicle accident in 2017. Mr Smith’s parents are both elderly and his father considers that if his son were to be deported the prospects of seeing him again would be greatly reduced because of his and his wife’s health issues; in the case of the father due to the consequences of a brain infection. Mr Smith’s mother suffers from mental health issues which, according to her husband, are attributable to her grieving for her two deceased sons. Mr Smith has another sister-in-law who was married to one of his other brothers that also died in a motor vehicle accident in 2019. She has three children who are aged 8, 12 and 14 years of age. That sister-in law and her three children are all Australian citizens. The ties with both sisters are fractured at least insofar as the first sister is concerned because of Mr Smith’s offending.

9. Mr Smith’s familial ties with his parents are significant especially given the death of two of his brothers who he, and they, were reasonably close to. The fact that they live in Adelaide does not, in the view I take, detract from the fact that his ties with them are still ties to Australia and to permanent residents of Australia. His ties to TW, to her other children and to his young daughter remain reasonably strong despite his offending, imprisonment, and detention. His relationships with each of these people demonstrate close and strong ties to the Australian community. The impact of a decision refusing to revoke the visa would see Mr Smith leave Australia and would leave them adversely affected, at least emotionally, by that decision. I should also add that Mr Smith has worked for almost all of his 15 years in Australia. That too is an important contribution to the Australian community over a long period of time because work carries with it a significant and meaningful contribution of its own to the rest of the community.

10. In the circumstances, given his strong familial ties and reasonably long period in Australia positively contributing through employment before his offending, this consideration counts firmly in favour of revoking the decision cancelling the visa.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

11. The Direction requires me to make a determination about whether cancellation of the visa is in the best interests of minor children affected by the decision, and, to the extent that their interests might differ, I must consider them separately. There are a series of matters relevant to this consideration which I will address in the context of the particular facts.

12. There are four children who are potentially directly affected. They are Mr Smith’s biological daughter who is about 2 years of age, and her three siblings who are 7, 9 and 15 years of age. The children are presently cared for by TW. Mr Smith has not at any time lived with the children. He has developed a relationship with each of them, especially in the case of the three older children by interacting with them over the five or so years he has known their mother. One of the children proposed to Mr Smith that he be her ‘step-dad’ some time ago. Another lays down challenges to him about games they play. TW, in her statement, whilst describing some of the interplay between the children and Mr Smith also said, ‘my children all love Hayden so much’. I accept her evidence about that.

13. Mr Smith has not at any time stood in the position of the children’s parent on a day-to-day basis doing the things with them that parents do.  Mr Smith has known the children only for about five years, and for two and half of those years he has been in prison or detention. The relationship between Mr Smith and the three older children cannot reasonably be described as parental, given Mr Smith’s short time in which he has known them. I do accept, as I have earlier observed, that one of the children has expressed a desire to have Mr Smith as her ‘step-dad’ which is indicative of a bond between them. Two of the children see their biological father reasonably regularly although he is apparently quite ill. The other child is estranged from her biological father. Mr Smith would, if he stepped into the role of the children’s father, in my opinion be likely to play a positive role in each of the children’s lives until they are 18 years of age. I do not consider his offending conduct is likely to have a negative impact on the children. In fact, Mr Smith’s contrition, remorse and acceptance of responsibility might potentially be a positive influence on the children. I will not speculate about that. If the decision cancelling the visa remains, Mr Smith will be able to speak to the children by phone as well as by using social media, but that is hardly a satisfactory means for conducting a fulfilling relationship with anyone let alone as a father or stepfather. If TW and the children follow Mr Smith to New Zealand that is unlikely to be good for them given that it will involve each of them picking up their whole lives to date and leaving their biological father (in the case of two of them), their aunts and grandparents and friends where they live to a new lie in New Zealand. Their best interest lay with Mr Smith remaining in their lives in Australia.   

14. The other children are Mr Smith’s seven nephews who are the children of his two deceased brothers. They are aged between 7 and 14. They are not in a parental relationship with Mr Smith. I accept however it is likely best for them to have their uncle in their lives, perhaps a little more than might usually be the case given the death of their fathers. That is little idle to speculate about given what I have already said about their lack of any relationship with Mr Smith since his offending.

15. I am satisfied that the best interests of Mr Smith’s daughter and TW’s three children firmly weigh in favour of revocation of the decision cancelling the visa.    

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. The Direction requires me to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ’has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’.

17. This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa’. Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving the commission of serious crimes against children which, obviously enough, includes sexual crimes against children. The nature of the criminal offending is very serious as it involves sexual crimes against a child. That is nominated in the Direction as particular conduct where the Australian community expects that a non-citizen’s visa should be cancelled.

18. I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[4] This involves an evaluation about how strong or important this factor is in the particular circumstances of the case.

    [4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (Charlesworth J).

19. The circumstances of the offending shows that the offence was not premediated, nor was it part of a pattern of very serious criminal offending of a sexual kind against children let alone any other criminal offending of a serious kind. It was a one-off offence that was opportunistic in nature. The offence is against a backdrop of Mr Smith suffering from alcohol abuse for many years and having brought himself back from that addiction. It is also against a history of Major Depressive Disorder which continues to affect him today, and after having tragically lost two of his brothers in motor vehicle accidents in 2017 and 2019.

20. These circumstances lead me to conclude that the expectations of the community should be afforded less weight or, in other words, are to be treated as less important as they might otherwise be. This consideration weighs moderately in favour of non-revocation.

    WHY THE CANCELLATION SHOULD BE REVOKED

21. I have found that the protection of the Australian community weigh firmly in favour of non-revocation of the decision cancelling the visa, especially because the offence committed by Mr Smith is very serious and, if repeated, would involve serious harm to members of the Australian community such that any risk of repetition is unacceptable. I have found that the expectations of the Australian community weigh moderately against revocation, having regard in particular to the unplanned and opportunistic nature of the offending, the one off nature of the offence, the lack of any record of serious criminal offending as well as Mr Smith’s Major Depressive Disorder and the loss of two of his brothers since 2017.

22. I consider Mr Smith’s ties to the Australian community weigh firmly in favour of revocation because of the nature of the familial ties, especially that with his elderly parents, as well as his ties with TW and her four children one of whom is his biological child. His contribution to the Australian community by engaging in paid employment continuously over 15 years also informs a strong tie with the Australian community. I have also found that the best interests of Mr Smith’s young daughter and her three siblings weigh in favour of revocation.

23. In all the circumstances I am satisfied that this is a case where there are strong countervailing considerations, especially those arising from the ties Mr Smith has with his parents, TW and her children and those concerning the best interests of his young daughter and the three other children, that are sufficient to justify revoking the cancellation of the visa despite the serious conduct associated with the offending, which if repeated, would result in serious harm. It follows that there is another reason to revoke the cancellation of the visa founded upon Mr Smith’s strong familial and social ties to Australia and the best interests of his daughter and her siblings.

    DECISION

24. I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Hayden John Smith’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

........................................................................

Associate

Dated: 27 September 2023

Date(s) of hearing:	25 September 2023
Solicitors for the Applicant:	Checker McCarthy, Legal Aid NSW
Solicitors for the Respondent:	Mathew Sheedy, Sparke Helmore Lawyers