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

SPRT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4049 (5 December 2023)
Division:GENERAL DIVISION
File Number: 2023/6947
Re:SPRT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Justin Owen
Date:5 December 2023
Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 12 September 2023 not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.
……………[SGD]……………………………
Deputy President Justin Owen
CATCHWORDS
MIGRATION – mandatory cancellation of Class BF Transitional (Permanent) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
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 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Justin Owen
5 December 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 12 September 2023, not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa (“the Visa”).
The Applicant is a male British national born in April 1947. At the time of this decision, he is 76 years old. The Applicant has resided in Australia for 71 years, having arrived in June 1952 when he was five years of age.
The Applicant’s visa was cancelled on 16 June 2020 under section 501(3A) of the Act on the basis that he did not pass the character test. The Applicant was duly notified of the mandatory cancellation decision and was invited to make representations in an effort to revoke that decision. On 9 July 2020, the Applicant made representations seeking revocation of the cancellation decision. On 12 September 2023, a delegate of the Respondent refused to revoke the mandatory cancellation made on 16 June 2020. There followed an application to the Tribunal on 20 September 2023 wherein the Applicant sought review of the delegate’s refusal to revoke the decision on 12 September 2023.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his serving a sentence of imprisonment, on a full-time basis in Karreenga Prison in Victoria, for an offence against a law of the Commonwealth, a State or a Territory. On 24 November 2017, the Applicant was convicted in the County Court of Victoria of the offence of Persistent sexual abuse of a child U/16, for which he was sentenced to a term of imprisonment of eight years, with a non-parole period of five years and six months.
The Applicant does not dispute that he does not satisfy the character test.
The issue before the Tribunal is whether there is another reason why the delegate’s decision should be revoked. Paragraph 8 of Direction 99 sets out the matters which must be considered when deciding this matter.
The hearing was held on 27 November 2023.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.
BACKGROUND FACTS
Summary of criminal convictions
The Applicant has been convicted of the following offences. On 8 June 1961, he was convicted of the offence of Expose person in the Wollongong Children’s Court and committed to an institution. On 18 October 1962, he was convicted of the offence of Use indecent language on telephone in the Wollongong Children’s Court and sentenced to 18 months’ probation without condition. On 31 March 1967 he was convicted of the offence of Obscene exposure in the Wollongong Petty Sessions Court for which he received a custodial sentence of six months hard labour. On 4 October 1967, on appeal against his conviction of 31 March 1967 for the offence of Obscene exposure in the Wollongong Quarter Sessions Court, his conviction was upheld. In lieu of a custodial sentence, he received a sentence of three months hard labour, suspended on entering recognizances with condition: $100, and three years of self-supervision and guidance adult probation and issued a service fine of $100. The circumstances surrounding the balance of these offences are unknown, however they appear to involve two occasions of the Applicant wilfully exposing his genitalia in a public place.
On 24 November 2017, the Applicant was convicted of the offence of Persistent sexual abuse of a child U/16 in the Melbourne County Court, for which he received a term of eight years imprisonment with a non-parole period of five years and six months, and was registered in accordance with the Sex Offenders Registration Act 2004, with mandatory reporting conditions for the remainder of his life.
Background facts related to 24 November 2017 conviction
The Applicant’s offending behaviour took place over several years between 6 December 2010 and 21 May 2014 when the Applicant sexually abused his granddaughter. The Applicant is the maternal grandfather of the victim. The Applicant was between 63 and 67 years of age and the victim was between 8 and 11 years of age. The Applicant’s offending involved five indecent acts.
Charge 1: Persistent sexual abuse of a child under 16 years
First Occasion
The offending occurred between 6 December 2010 and 5 December 2011 when the victim’s grandmother went to Sydney to visit family. The victim was staying with the Applicant because her mother had to go out.
The offending occurred in the victim’s grandmother’s bedroom. The Applicant put pornographic videos on the television and made the victim watch them. The Applicant then put the victim down on the bed and took his shirt off and started masturbating. He then touched the skin of the victim’s vagina. [1]
Second Occasion
[1] G-Docs, 56.
The offending occurred between 6 December 2011 and 6 December 2012 prior to the victim’s 9th birthday when the victim’s grandmother was in Sydney. [2]
[2] Ibid.
The offending occurred in the victim’s grandmother’s bedroom. The victim described the offending behaviour as ‘having done 69 for the first time’.
The Applicant laid the victim down and put her on top of him. He said, “Now, you’ve got to suck my dick and I’ll suck your vagina”. The victim refused his request and the Applicant inserted his tongue into her vagina. The victim put her feet on the bed and lifted herself up to avoid this. The Applicant said, “Oh, come on, please, you’ll like it”, but when the victim refused again he hit her on the back causing her to fall. The Applicant continued sucking the victim’s vagina. The victim screamed and ran out of the bedroom. She hid in the lounge room in the corner. The Applicant came out trying to find her. He said that he would stab her if he couldn’t find her. Feeling threatened, the victim stood up. The Applicant picked the victim up, put her over his shoulder, took her back to the bedroom and locked the door.
The Applicant was playing pornographic content at the time of this offence.
Third Occasion
The offending occurred at the Broadmeadows swimming pool between 22 November 2012 and 22 May 2013, when the victim was 9 years of age.[3]
[3] G-Docs, 56.
The Applicant took the victim and her younger brother to the pool. While swimming, the Applicant put the victim in the corner of the deep end of the pool and said to her, “Oh you’ve been a very naughty girl.” He then touched the victim on the vagina over her bathers, going up and down with his finger. He whispered to her not to scream or say anything.
The victim swam towards the other end of the pool. While the victim and her brother were playing with a ball, the Applicant caught the ball and swam off with it. The victim swam after him to retrieve the ball. The Applicant said, “Try to find it”, grabbed the victim’s hand and forced her to touch his testicles. He asked the victim if she liked that. The victim remembers pinching the Applicant and swimming away.
Fourth Occasion
The offending occurred between 6 June 2012 and 5 June 2013 at the Zagame Restaurant car park in Reservoir.[4] The victim was between nine and ten years of age. Arrangements were made for the Applicant to drive the victim to a friend’s birthday party because her mother had to look after her younger brother.
[4] Ibid, 57.
They arrived at the car park some five to 10 minutes early. The Applicant grabbed the victim’s head and forced the victim to suck his penis. The victim was crying, could not breath properly and her neck was sore.
Fifth Occasion
The offending occurred at the Campbellfield car park between 6 June 2013 and 21 May 2014.[5] The victim was between 10 and 11 years of age. The Applicant drove the victim and her younger brother to Campbellfield Plaza. After visiting some shops, he parked the car in the car park. The victim was seated on the front passenger’s seat. The Applicant touched the victim’s breasts. The Applicant also kissed the victim on her lips. The victim’s brother was seated in the back of the car.
Arrest and plea of guilty
[5] G-Docs, 57.
The victim disclosed to a school friend that she had been sexually assaulted by her grandfather. The matter was reported to the Wellbeing Manager at the victim’s school on 28 October 2015. The victim told the Wellbeing Manager that she was scared to tell her mother because her grandfather told her he would kill her if she told anyone.
The Applicant was arrested on 26 May 2016. The Applicant made admissions to the offending and said he wished it had never happened. He told the police he was remorseful and said he could not remember when his offending had started. The Applicant told police he wished it had never started in the first place because it had been eating him up over the previous two years, and he was glad it was all out.
The Applicant pleaded guilty to the charge and expressed remorse and willingness to undertake treatment. This was accepted by the sentencing judge as a degree of remorse and an indication of a positive prospect for rehabilitation.
Behaviour whilst incarcerated
Whilst incarcerated at the Hopkins Correctional Facility, the Applicant was involved in an altercation with another inmate where he admitted to placing his hands around the neck and shoulder area of the other inmate and shaking him in an attempt to cease the inmate’s continued questioning.[6]
[6] Respondent’s Tender Bundle, 1124.
Another incident was reported at Hopkins Correctional Facility when the Applicant approached a program staff member and told him he could no longer attend his course as he was infatuated with the female facilitator and could not guarantee that he could control his actions towards the female facilitator.[7]
[7] Ibid, 1168.
Whilst incarcerated, the Applicant participated in a program whereby he assisted other inmates in wheelchairs attend their medical appointments. He worked in the prison industry at Timber. He engaged in educational programs and completed units in the following Certificate courses: 2017 – Cert III in Cleaning Ops; OHS 2018 – Cert II in Skills for Work and Vocational Pathways; 2019 – Cert in General Adult Education.[8]
Remorse and rehabilitation
[8] Ibid, 1299.
In the Applicant’s police record of interview, the Applicant attempted to attribute blame for the offending to the victim, stating the following, ‘I thought she might have liked it. She never said stop’ and ‘if she didn’t want me to do it, all she had to do is say, Pa, I don’t want to do it, and I wouldn’t have done it with her’.[9]
[9] Respondent’s Tender Bundle, 96.
In a letter to the Department dated 16 December 2020, the Applicant said he was ashamed of what he had done, however disputed some of the agreed facts, stating they didn’t happen, such as hitting the victim on the back, locking the door, threatening her to not scream or say anything and forcing sexual contact.[10] Whilst the Applicant has accepted some responsibility for his offending behaviour, he has attributed some of the blame to the victim and the victim’s mother, his daughter, which diminishes any insight into his responsibility for his offending.
[10] G-Docs, 167.
There is limited evidence that the Applicant has participated in any kind of targeted therapy, treatment or rehabilitation programs to address his offending behaviour. There is before the Tribunal a Certificate of Participation dated 16 October 2018 presented to the Applicant in recognition of Men’s Training Introduction to Family and Domestic Violence, Behaviour Change, and Respectful Relationships.[11]
Impact on the victim
[11] Respondent’s Tender Bundle, 1295.
In the sentencing remarks, the victim’s impact statement was discussed. It was stated the victim:
constantly ruminates about what happened and suffers symptoms of post-traumatic stress disorder, such as flashbacks, inconsolable crying, panic attacks, depression and problems sleeping. She now has difficulties trusting males and has engaged in self-harm by cutting herself in the past. She continues to receive medical treatment and psychological support. The offending has negatively impacted upon both her and upon her family relationships generally. She is very concerned for her mother, whom, she states, is very upset because her mother perceives that she did not take enough steps to properly protect her from [the Applicant’s] sexual abuse.
Family
The Applicant has spent almost his entire life in Australia, having resided in Australia for 71 years. He is now 76 years of age. His parents are deceased. He had four brothers (he informed the Tribunal at hearing that two are recently deceased), a daughter, two sons, three grandchildren, an aunt and uncle and a number of cousins and nieces and nephews who reside in Australia. He has an ex-wife to whom he was married between the years of 1971 and 2016 with whom he is no longer in contact with. The evidence before the Tribunal is that he is now estranged from his family in Australia, with the exception of his youngest son. Prior to his incarceration and subsequent detention, the Applicant was living with his youngest son and his ex-wife, whilst separated from her, at his son’s home in Wollongong. He claims to have no family or friends in the United Kingdom and his movement records show that he has only travelled outside of Australia on two occasions between 1992 and 1994.
The sentencing judge described the Applicant as leading a blameless life, with no issues of violence, drugs or alcohol. The Applicant’s parents were described as being supportive and kind.
The Applicant reported one incident of sexual abuse by one of his older brothers when he was aged about nine.
Education and employment
The Applicant has limited education, having attended primary and secondary school in Wollongong, completing up to the equivalent of year eight of secondary school. At school he claims he suffered bullying and found learning difficult.
Apart from occasional and relatively brief periods of unemployment between jobs, the Applicant has been in constant employment since he was about 15 up until his retirement at the age of 60. He has been employed in a range of unskilled occupations including as a labourer, cleaner, forklift driver and storeman.
Prior to his incarceration he was in receipt of the old age pension, receiving $920 from Centrelink each fortnight. He has no assets, superannuation, savings, or other source of income. He was paying his son $300 per fortnight in rent.
Mental and physical health
The Applicant is now elderly at the age of 76 and is in poor physical health. The sentencing remarks note that the Applicant is ‘overweight, suffers diabetes (non-insulin dependent), hypertension and high cholesterol’. He has one remaining kidney. The Applicant informed the Tribunal he is having ongoing health issues with his kidney.
Forensic Psychologist Mr David Ball in his report 31 October 2017 states that the Applicant’s offending behaviour satisfies the DSM-5 diagnostic criteria for paedophilic disorder.
The Applicant’s intelligence was assessed at a full-scale IQ of 65 in neuropsychological reports before the sentencing judge, which places him in the ‘moderately retarded range’.
In a report from Consultant Neuropsychiatrist Professor Dennis Velakoulis dated 3 June 2017, he states:
I do not believe that [SPRT] suffered from any psychiatric or neurological condition at the time of the offending behaviour…I do not believe that [SPRT] has a condition that is affecting his capacity or functioning…[H]e exhibits some cognitive difficulties that could be related to underlying cerebrum vascular ischaemic disease and could ultimately lead to a vascular dementia.
RELEVANT LAW
Pursuant to s 501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if satisfied that the Applicant does not pass the character test.
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A), the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, “within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’”.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states 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.
Sub-paragraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The character test is set out at s 501(6) of the Act, and relevantly prescribes at s 501(6)(a) that a person will not pass the character test if a person has a substantial criminal record. That term is defined in subsection (7) of s 501. Relevantly to this case, s 501(7)(c) defines a substantial criminal record if a person has been sentenced to a term of imprisonment of 12 months or more.
The exercise of the discretion is governed by the considerations set out in Direction No 99 – Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (“Direction 99” or “the Direction”). The Direction is binding on decision-makers, including this Tribunal, performing functions or exercising powers under s 501 of the Act.

Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at sub-paragraph 5.2(2) of Direction 99 states that:
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.
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application. 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. Direction 90, in turn, was replaced by Direction 99 on 3 March 2023. The Direction is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.
The Direction sets out the principles that provides a framework on how decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant or revoke mandatory cancellation decisions. 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 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly 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.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(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.
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.
The primary considerations, which are set out in paragraph 8 of Direction 99, are:
1.Protection of the Australian community from criminal or other serious conduct;
2.Whether the conduct engaged in constituted family violence;
3.The strength, nature and duration of ties to Australia;
4.Best interests of minor children in Australia;
5.Expectations of the Australian community.
The other considerations, which are set paragraph 9 of Direction 99, are:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims;
d)Impact on Australian business interests.
The Tribunal notes the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[12] [2018] FCA 594, [23].
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: paragraph 7(2) and (3) of Direction 99.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of subsection 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked?
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Relevantly, subsection 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in section 501(7) of the Act. Subsection 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Applicant’s Australian Criminal Intelligence Commission Check Results Report dated 1 June 2020 setting out the Applicant’s offending and convictions. The Report indicates that the Applicant has been convicted of the following offences:

Date of Conviction Offence Sentence

24.11.2017
Persistent sexual abuse of a child U/16
8 years imprisonment

04.10.1967 Obscene Exposure. Appealed against conviction of 31.03.1967 Conviction confirmed: in lieu custodial: 3 months. Hard labour suspended on enter recognizances with cond: $100 3 years place self under supervision and guidance adult probation service fine: $100

31.03.1967 Obscene Exposure Custodial: 6 months hard labour

18.10.1962 Use indecent language on the telephone Probation without condition: 18 months.

08.06.1961 Expose person Committed to institution

The Tribunal finds that in 2017, the Applicant was sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test.
EXERCISE OF DISCRETION
In his submission to the Tribunal, the Applicant stated he was ashamed of his offending and promised such actions would never happen again. He stated he would be a ‘better person’.
When providing reasons for revocation of his cancellation to the delegate, the Applicant submitted his ties to Australia were extensive, having arrived here from Great Britain when he was just five years old. The Applicant stated he had believed he was ‘naturalised’ as an Australian due to the fact he arrived when under the age of eighteen. The Applicant has submitted he has no family and friends in Great Britain and no way to support himself there. He submitted he may never see his own children again given his advanced age, including his sons with whom he claimed to have a close relationship. The Applicant stated that he and his victim, his own granddaughter, would never be in the same State and subsequently would never have any contact with each other. The Applicant contended that undertaking the programme in relation to his offending, which he concedes he has not done, would be beneficial to him and minimise any chance of reoffending. On the basis of these contentions, the Applicant submitted the cancellation of his visa should be revoked.
The Respondent submits that the primary decision should be affirmed, due to the nature and seriousness of the Applicant’s offending conduct in relation to his 2017 conviction Persistent sexual abuse of a child U/16. The Respondent contends the Applicant’s criminal offending is “extremely serious”. The Respondent highlights the sentencing judge’s condemnation of the Applicant’s sexual abuse he committed against his own granddaughter, highlighting Her Honour’s remarks concerning the Applicant’s “appalling disregard” for his granddaughter and her statement in sentencing the Applicant “your actions were cruel and placed the gratification of your own sexual needs ahead of protecting an innocent, young girl”.
The Respondent submitted that the risk to the Australian community, should the Applicant reoffend, also weighed heavily against revocation, noting the harm that could be caused could involve significant physical, financial and psychological harm to members of the Australian community, including children. The Respondent contends there remains a real risk of the Applicant engaging in further criminal or other serious conduct due to the fact that: there is no evidence of the Applicant engaging in any rehabilitation to address the underlying causes of him sexually abusing his granddaughter; there is no evidence of any sustained period of individualised psychotherapy undertaken by the Applicant to target his cognitive distortions relating to child sexual offending; and the fact the Applicant was found in medical assessments not to exhibit any psychiatric or neurological condition that affected his capacity at the time of his offending. The Respondent also noted the attempts by the Applicant to minimise his behaviour and the seriousness of his offending (which was again demonstrated in his oral testimony to the Tribunal); his anti-social behaviour and lack of impulse control on display whilst in gaol; his lack of family support (beyond one son); and his attempts in gaol to make contact with the victim of his offending, his granddaughter.
The Respondent also contends that the Applicant’s behaviour constitutes ‘family violence’ for the purposes of Direction 99 which weighs very heavily against revocation, particularly having regard to the frequency and repeated nature of the Applicant’s acts of family violence; the cumulative effect of the Applicant’s offending; the lack of rehabilitation to address the factors which contributed to his offending; and, again, the Applicant’s lack of acceptance of full responsibility for his offending. The Respondent acknowledges that some of the considerations, including the Applicant’s family and social ties in Australia, and the impediments if removed, weigh in favour of revocation.
The Tribunal’s considerations are set out below with regard to the Direction.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity, or other serious conduct, by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens. However, this privilege is conferred in the expectation that non-citizens 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.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors.
Sub-paragraph 8.1.1(1)(a) 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.
Sub-paragraph 8.1.1(1)(b) 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;
(iii)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));
(iv)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.
Sub-paragraph 8.1.1(1)(c) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As stated above, the Applicant was sentenced to a term of imprisonment of 12 months or more. It is well-established that 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.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the sentencing remarks and other relevant documentation where appropriate.
The Tribunal notes sub-paragraph 8.1.1(1)(a) of the Direction provides that sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); and acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed), are all viewed very seriously by the Australian Government and the Australian community. The Applicant’s offending is entirely relevant to this aspect of the Direction. The offending of the Applicant that led to his conviction for ‘Persistent sexual abuse of a child U/16’ is subsequently regarded as very serious, notwithstanding the Applicant was also sentenced to imprisonment of eight years.
There are before the Tribunal the sentencing remarks Her Honour Judge Lawson made on 24 November 2017 in relation to the offence persistent sexual abuse of a child under 16 years of age. Her Honour sets out the facts as follows. The Applicant’s offending took place over several years between 6 December 2010 and 21 May 2014 when the Applicant sexually abused his granddaughter on five separate occasions. The offending is outlined earlier in this decision record. The Applicant’s granddaughter was prepubescent at the time between the ages of eight and 11 years. The Applicant’s offending involved five indecent acts either with or in the presence of his granddaughter. The offending included masturbating in his granddaughter’s presence or touching her vagina; forcing his granddaughter to touch his testicles and touching her breast; as well as two occasions of actual sexual penetration, the first involving the lingual penetration of his granddaughter’s vagina, and the second involving the penile penetration of his granddaughter’s mouth. Her Honour described the behaviour of the Applicant as “gravely serious behaviour”.
The offending occurred on occasions when the Applicant’s granddaughter was entrusted to his care, variously at his residence whilst the Applicant’s wife was away; at a public swimming pool; and twice in a public car park.
Her Honour noted that after the Applicant was arrested he made admissions to his offending and declared he wished it had never happened. The Applicant did deny some of the claimed offending including putting his tongue inside his granddaughter’s vagina.
Her Honour noted the Applicant’s responses in his record of interview with the Police, considering they suggested he lacked proper insight into his offending. Her Honour stated:
‘You tried to attribute blame for the offending to the complainant. No child is responsible in these circumstances. You, alone, are the perpetrator of this course of persistent sexual abuse.
Her Honour noted the offending had a “profound and long-lasting effect” upon the victim. She noted the victim impact statement demonstrated symptoms of the Applicant’s granddaughter suffering from a post-traumatic stress disorder. These included symptoms such as inconsolable crying, depression, insomnia, panic attacks and flashbacks. Her Honour noted the victim had engaged in self-harm by cutting herself in the past. The impact on the Applicant’s daughter was also noted by Her Honour, stating that the Applicant’s granddaughter is very concerned for her mother as she perceives she did not do enough to protect the victim from the Applicant’s sexual abuse.

The Tribunal notes that the Applicant received a significant discount in his sentence for pleading guilty to the offending by Her Honour, who stated she would have imposed a term of imprisonment of ten years, with an eight year non-parole period. Given his plea, combined with the Applicant’s circumstances and purported prospects of rehabilitation, Her Honour fixed a shorter period of eight years imprisonment with a non-parole period of five and a half years. Her Honour at the time accepted the plea of guilty was “evidence of a degree of remorse and is indicative of your positive prospects for rehabilitation”, and noted the Applicant had pleaded guilty at the earliest opportunity. The Tribunal considers the sentence imposed – and Her Honour’s pronouncements as to what she would have potentially imposed given the circumstances of the offending – are indicative of the seriousness of the Applicant’s offending.
The Tribunal notes that at its hearing the Applicant attempted to deny some of the facts he pled guilty to at trial. The Tribunal would again note that this plea of guilty, made whilst he had the benefit of legal representation, at the time saw the Applicant receive a significant discount on his sentencing.
The Applicant stated to the Tribunal that he did not hit his daughter (the second offending incident); and denied a number of other incidents central to his offending, including the fourth offending incident entirely, claiming it was the offending of grabbing his granddaughter and forcing her to perform oral sex upon him was a lie. .
The Tribunal considers the Applicant to be an unreliable witness based upon his willingness to now contradict and deny significant and key aspects of the offending that he pleaded guilty to – and received a significant sentencing discount. The Tribunal has significant concerns as to the credibility of his evidence when discussing his past offending.
In relation to the nature and seriousness of the Applicant’s offending, the Tribunal also notes the Applicant has previous, albeit historic form when it comes to sexually perverse and abnormal behaviour. Whilst the sentencing Judge was unaware of his history, the Tribunal notes the evidence that the Applicant was convicted of the offences of obscene exposure and expose person as a young man in the 1960s.
The Tribunal finds that the Applicant’s offending conduct is very serious. His behaviour over multiple years was quite simply monstrous, and his attempts to downplay his actions, during his oral testimony to the Tribunal, by shifting responsibility and blame onto his victim is repulsive and deplorable. It would be reasonable to assume that the victim will be permanently, adversely affected by the Applicant’s despicable and dangerous criminal behaviour. It is well-established that the imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[13] The Tribunal acknowledges paragraph 8.1.1(1)(c), and notes that an imposition of a custodial sentence reflects the objective seriousness of an Applicant’s offending.
[13] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162, [20]-[22].
The Applicant’s offending, involving sexual abuse and violence committed against the victim, is relevant for the purposes of sub-paragraph 8.1.1(1)(a) as ‘very serious’. The offending was committed against a young girl, the Applicant’s own granddaughter, and is relevant for the purposes of sub-paragraph 8.1.1(1)(b) as a vulnerable member of the community.
For the purposes of s 501 of the Act, the Applicant concedes his past offending (whilst disputing large elements of his conviction). However, The Tribunal is of the firm opinion that he lacks an understanding as to the magnitude of the seriousness and depravity of his past behaviour and his own personal responsibility for his behaviour. His willingness to avoid responsibility, and blame his victim for his offending indicates to the Tribunal that he lacks any genuine understanding – or remorse – for his offending behaviour.
The Respondent submits that the nature and seriousness of the Applicant’s offending weighs very heavily in favour of non-revocation.
The Respondent notes that the significant imprisonment sentence imposed by the Court is indicative of the seriousness of the Applicant’s offending. The Respondent further notes sub-paragraph (c) of paragraph 8.1.1(1) of the Direction, which requires a decision-maker to consider that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Whilst the very nature of the Applicant’s offending, involving sex offending against a child, is considered when applying Direction 99 to be “very serious”, the Tribunal finds that the significant custodial term imposed by the sentencing Judge is indicative that the Applicant’s offending was very serious.
Sub-paragraph 8.1.1(1)(d) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Sub-paragraph 8.1.1(1)(e) of the Direction requires a decision-maker to have regard to the cumulative effect of the Applicant’s repeated offending.
The Tribunal has noted the frequency of the Applicant’s offending, involving five occasions over an almost three and a half year period between December 2010 and May 2014. While there is no trend of increasing seriousness of the offending, the Tribunal nevertheless regards each instance of the offending as very serious, and would have undoubtedly had a shocking impact upon the life of the Applicant’s granddaughter. The Tribunal has already discussed the impact on the Applicant’s granddaughter, and the terrible ongoing effect it has had upon her own life. The Tribunal notes the offending occurred whilst the victim was between the ages of eight and eleven years old. It occurred at times when she was placed into the trusted care of her grandfather. The Tribunal has had regard to such repeated and repulsive offending over an extended period, and the cumulative impact this offending has had upon the Applicant’s granddaughter.
Sub-paragraph 8.1.1(1)(f) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no record or suggestion that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Sub-paragraph 8.1.1(1)(g) of the Direction requires a decision-maker to have regard to 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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is no record or suggestion that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of his migration status.
Sub-paragraph 8.1.1(1)(h) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offences were committed in Australia. There is no record or suggestion the Applicant has committed an offence in another country.
Conclusion about the nature and seriousness of the Applicant’s conduct
The Tribunal has sought to apply each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the relevant and applicable paragraphs of the Direction, the Tribunal finds that the Applicant’s conduct can be characterised as extremely serious.
Risk to the Australian community should the Applicant commit further offences or engage in serious conduct
The Tribunal has considered the risk to the community should the Applicant reoffend.
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(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 the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Sub-Paragraph 8.1.2(2)(a) compels the Tribunal to make an assessment of the nature of the harm to individuals or the Australian community in the event of the Applicant engaging in further criminal or other serious conduct.
To make such an assessment, it requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to engage in further criminal or other serious conduct, which is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it could be repeated may be unacceptable.
The Tribunal considers that the nature of the harm, should the Applicant engage in further criminal conduct of a similar nature which has involved the ongoing sexual abuse of a child, is that the Applicant could cause significant psychological and mental health consequences and trauma to individuals or the Australian community.
The Tribunal therefore finds, that if the Applicant were to reoffend, the nature of harm would be very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. In making this assessment, the Tribunal has considered the information and evidence before it on the risk of the Applicant reoffending, and the evidence of rehabilitation achieved.
The Applicant has submitted that he is ashamed of what he did in relation to his granddaughter. He submits that he will not repeat any such behaviour in the future. The Applicant previously contended to the delegate that undertaking a programme in relation to his sex offending, which he concedes he has not done, would be beneficial to him and minimise any chance of reoffending. The Applicant states he will be living in a different State as his victim and there is no chance they will cross paths. He submits that any risk of reoffending is minimal.
The Tribunal has considered the information and evidence before it on the risk of the Applicant re-offending.
The Tribunal has considered the evidence before it of Professor Dennis Velakoulis (3 June 2017 and 18 October 2017), a neuropsychologist; and Mr David Ball, psychologist (26 April 2017, 31 October 2017 and 13 November 2017). The reports were prepared principally in preparation for the sentencing of the Applicant for his offending.
Professor Velakoulis concluded that the Applicant was not suffering from any psychiatric or neurological condition at the time of his offending. He stated that he did not consider the Applicant had a condition that was affecting his capacity or functioning.
Mr Ball found the Applicant failed to satisfy any DSM-5 diagnostic criteria for a personality disorder, or substance abuse, or dependence or other clinical syndromes. Mr Ball found the Applicant’s offending behaviour would normally satisfy the DSM-5 diagnostic criteria for paedophilic disorder and warranted a sex offender risk assessment. Mr Ball considered the Applicant was “likely to present with few challenges in terms of his safe management in the community.
Mr Ball assessed the Applicant as being at a low risk of recidivism given his age, detection of his sexual offending, and psychosocial distance from potential victims. Mr Ball however identified that “the main protective factors that may be applied to [SPRT] are the successful completion of a sex offender treatment program. He would greatly benefit from developing the understanding of the effects of sexual abuse upon his victim”.
The Tribunal notes with concern, some six years later, that there is no evidence of the Applicant in fact ever having undertaken and successfully completed a sex offender treatment programme.
The Tribunal found the Applicant’s responses and behaviour at its hearing of concern when considering the issue of the risk of reoffending. The Tribunal considered the Applicant’s responses, whilst occasionally making statements of regret for his offending, were demonstrative of an individual that takes little to no genuine responsibility for his appalling actions. The Applicant would appear to still consider that his granddaughter, the victim of his offending, bears the onus and at least part of the responsibility for his offending. The Tribunal found the Applicant’s profound lack of insight disturbing.
MS DONAGHY: You told the police that your granddaughter liked it because she never told you to stop. Do you recall saying that?
APPLICANT: (Indistinct) I said to (indistinct), I said to me granddaughter, ‘Do you want to stop?’ and she says ‘No.’ I said again, ‘Do you want to stop what we’re doing?’ She says ‘No.’ So what do you expect me to tell you? If she said yes, I would have stopped it.
----
MS DONAGHY: Are you suggesting that it was your eight-year-old granddaughter who asked you to start sexually abusing her?
APPLICANT: No. She brought the game up. Not me. She brought up the truth or dare.
MS DONAGHY: You’re suggesting that it’s an eight-year-old granddaughter who brought up that you should start sexually abusing her?
APPLICANT: No. She – no. I did not. She – she brought the game up. ‘Right, I’ll play with you.’ (Indistinct) right-o. Now, when you play truth or dare, she says, ‘Hey, Pa.’ ‘What?’ ‘Truth or dare.’ So you pick one. I said, ‘Truth.’ She says, ‘Is your name John Smith?’ Then she started again. ‘Truth or dare?’ So I said dare this time to see what she says. She says, ‘I dare you to suck me.’ What - - -
MS DONAGHY: You’re saying that your eight-year-old granddaughter - - -?
APPLICANT: Yes, yes. She’s the one who brought the game up. Not me.
MS DONAGHY: That’s completely false, isn’t it? That’s completely false.
APPLICANT: No, it’s not false. She brought the game up, because I didn’t know what she was talking about in the first - - - -
MS DONAGHY: I’m not saying the game. I’m talking about the sexual abuse?
APPLICANT: Yes. Yes. I understand that. Yes, I did. Yes.
MS DONAGHY: You’re saying that your eight-year-old - - -?
APPLICANT: (Indistinct) played (indistinct), yes.
MS DONAGHY: Your eight-year-old granddaughter said to you, ‘I dare you to suck me’?-APPLICANT: Yes.
MS DONAGHY: So you did?
APPLICANT: Yes.
MS DONAGHY: That’s completely false, isn’t it?
APPLICANT: No. It’s not false.
MS DONAGHY: You’re choosing to blame a little girl rather than take responsibility for your actions?
APPLICANT No, I’m – no. That is not false. She says, ‘Suck me,’ and I said, ‘Whereabouts?’ And she went down (indistinct) down there. And that is the truth. I swear on the bloody bible.
In their Statement of Facts, Issues and Contentions, the Respondent submitted that there is a real risk of the Applicant engaging in further criminal or other serious conduct.[14] Given the above responses that indicate the Applicant’s profound lack of insight and taking of responsibility for his past offending, as well as the lack of any evidence of the Applicant successfully undertaking a sex offenders course, the Tribunal is inclined to agree with the Respondent’s submissions, and accepts that the evidence suggests a real risk of reoffending remains.
[14] Respondent’s Statement of Facts, Issues and Contentions, [33].
The Tribunal would note that the Applicant’s testimony at its hearing, and the profound lack of insight into and taking responsibility for his offending, is consistent with earlier comments made by the sentencing judge who in noting similar statements said “no child is responsible in these circumstances. You, alone, are the perpetrator of this course of persistent sexual abuse”. The Applicant appears to believe his granddaughter, despite her tender age at the time, bears the onus of at least some of the responsibility for his offending behaviour. The Applicant’s lack of insight into his offending was also noted by Corrective Services in their note dated 1 September 2020 that stated the Applicant “is still unable to accept what he did and can become labile if talking about his crime, however, he still has some victim blaming which he needs to come to terms with”.[15] The Respondent has also drawn the Tribunal’s attention towards a handwritten note of the Applicant dated 16 December 2020 where he again denied a large number of the crimes for which he pleaded guilty and was convicted. The Tribunal is not satisfied the Applicant takes genuine responsibility for his offending actions. The Applicant would appear to suggest that his granddaughter, the victim, wanted him to engage in his offending behaviour, and she kept demanding that he continue.
[15] Respondent’s Tender Bundle, 1300.
The Tribunal considers the Applicant’s unwillingness to accept responsibility for his own actions was particularly demonstrated by the evidence before it concerning attempts by the Applicant to remain in contact with his granddaughter, the victim of his sexual offending. The evidence before the Tribunal, as reported by Corrective Services, is that the Applicant attempted to add his granddaughter, the victim of his offending, to his visitors list in December 2017 whilst incarcerated.[16] The Tribunal notes the further evidence that in May 2018, the Applicant also tried to make contact by writing a letter to his granddaughter. These actions occurred whilst the Applicant was still claiming he would have no contact with the victim of his offending. The matter was discussed at the Tribunal’s hearing:
[16] Respondent’s Tender Bundle, 1115.
MS DONAGHY: But when you went to jail in Victoria, you tried to add her (the Applicant’s granddaughter) to the visitor list, didn’t you?
APPLICANT: Visitor?
MS DONAGHY: Visitor list, when you were in Hopkins in Victoria?
APPLICANT: No. I didn’t.
MS DONAGHY: I put it to you that you tried to put your granddaughter on your visitor list in 2017?
APPLICANT: Yes, well, that’s a lie. I’m not taking the bait for that.
--
MS DONAGHY: You also tried to contact her in May 2018, didn’t you?---No.
APPLICANT: No.
MS DONAGHY: You tried to send her a letter?
APPLICANT: No.
These attempts to initiate contact, despite his promises and pledges that he would never contact his victim again, are, in their own right, evidence to the Tribunal that the Applicant lacks any adequate insight into his offending against his granddaughter, and the risk of reoffending remains.

The Tribunal holds further concerns given the Applicant’s preparedness to deny and lie when confronted with these past actions at the Tribunal’s hearing. The Applicant responded quite simply that he had never attempted to make any contact with his victim, and the records maintained by Corrective Services as to these two events were false”.,
DEPUTY PRESIDENT OWEN: Just so I understand here. So you are saying that these events are, at the end of the day, made up? That they have been concocted, if you like, in relation to you seeking to put your granddaughter onto this list and what is here is not true?
APPLICANT: I did not write any letter to me granddaughter or me daughter when I was in lockdown at Ballarat. The further away from them the better.
The Applicant’s assertions that these incidents were essentially concocted by Corrective Services officials – to assist his own daughter’s purported vendetta against him and to “set him up” are rejected by the Tribunal. The Tribunal considers this regrettable situation is another example of the Applicant’s unwillingness to take responsibility for his own past actions and criminal offending. The Tribunal furthermore considers that the Applicant’s preparedness to be economical with the truth when questioned over this matter, suggests to the Tribunal that the Applicant is not a witness of credibility, and he is someone that will make assertions, however outlandish, based purely upon his own self-interest. His behaviour does not suggest that he has any significant insight into his offending. His behaviour does not demonstrate any evidence whatsoever that he is taking responsibility for his past offending, instead claiming essentially to be the victim of his daughter’s purportedly nefarious conspiracy. The fact that the Applicant purportedly became upset when denied the opportunity to make contact with his granddaughter whilst incarcerated causes the Tribunal to harbour significant doubts into his insight into his offending and the catastrophic damage he has caused. The Tribunal notes there is no evidence of the Applicant suffering from any psychiatric or neurological condition that is impacting upon his capacity or function. Dementia and other age-related declines were also ruled out by the medical professionals at the time of his offending. Quite simply, the Tribunal considers the Applicant to be an unreliable witness who has made a range of claims concerning his past offending that are lacking in authenticity.
The evidence before the Tribunal as to the Applicant’s behaviour, whilst in gaol, towards some female staff is further relevant to the risk of future offending and indicative of a lack of self-control. The Tribunal notes on 9 December 2017 it was noted by Corrective Services that the Applicant was stalking female staff, and that other prisoners had raised similar concerns.[17]
[17] Respondent’s Tender Bundle, 1114.
The Tribunal also notes the incident report of the Department of Justice and Community Safety of 31 July 2019. The report states the Applicant had stated to a female facilitator that he could not control his actions towards her, and he was infatuated by her.[18] The Applicant’s behaviour led to his transfer from the facility. The Applicant discussed these matters with the Tribunal at his hearing. The Tribunal’s conclusion from his explanation is that the Applicant lacks self-control and self-awareness. The Applicant is inconsistent with his claims, and again lacks any insight into his own behaviour. The Tribunal considers the Applicant’s behaviour and explanations are of concern in any assessment of risk. In his oral testimony he compared the facilitator to his Aunt in Great Britain:
[18] Ibid, 1259.
APPLICANT: So when that woman started acting exactly the same as Aunty Doris did, and she goes like that, I just went to (indistinct), go and kiss her on the cheek. That’s why I got moved from one prison to another.
MS DONAGHY: Are you suggesting you tried to kiss a facilitator on the cheek?
APPLICANT: The screws made a (indistinct), the screws made that up. Made it all up.
MS DONAGHY: You just said, I’m just repeating what you said?
APPLICANT: Yes.
MS DONAGHY: That when she goes like this, you are going to try and kiss her on the cheek?
APPLICANT: Well, she looks exactly like me Aunty Doris.
MS DONAGHY: So you tried to kiss a facilitator on the cheek?
APPLICANT: No I didn’t. I did not try to.
MS DONAGHY: You did? You did kiss her on the cheek?
APPLICANT: No I did not.
When considering the risk of the Applicant re-offending, the Tribunal notes the common thread throughout the Applicant’s evidence that every adverse incident he has been involved in — from the offending itself to disputes in gaol — are ultimately generally the fault of someone else. He claims either to have been set up, or deceived, or is purely reacting in what he perceives is an acceptable fashion after being aggrieved.
This was demonstrated when questioned by the Respondent’s counsel about his driving record, where some past driving offences were blamed on other family members using his vehicle. When questioned about other matters involving violent interactions whilst in gaol or in the workforce,[19] the Applicant consistently shifted blame for his anti-social actions onto other parties and their alleged behaviour towards him.
MS DONAGHY: You would accept that you have difficulty controlling your impulses, wouldn’t you?
APPLICANT: If they pick on me, I’m going to pick on them. I’m not – I’m not usually letting them take me, hey.
MS DONAGHY: That’s been your basic principle, hasn’t it been?
[19] Respondent’s Tender Bundle, 1124; 1137.
APPLICANT: Yes, yes.
The Tribunal considers the Applicant has demonstrated a lack of self-control now over many years. The Tribunal would note at this point the Applicant’s historic offending that suggests both his lack of self-control and propensity for sexually perverted misbehaviour has been demonstrated at the criminal level previously. The Tribunal notes the Applicant was convicted in 1961 for the offence of expose person. In 1967 he was convicted of obscene exposure and was originally sentenced to six months hard labour before his sentence was reduced on appeal. The Tribunal notes that the sentencing judge for the Applicant’s 2017 conviction, (stating that apart from the 2017 offending the Applicant was “previously of good character…you have led an apparently blameless life”) as well as his psychologist Mr Ball and Neuropsychiatrist Professor Velakoulis were seemingly all unaware of the Applicant’s past offending.
The Tribunal considers the Applicant demonstrates an inability to concede his responsibility for his past offending. Even when the Tribunal asked the Applicant about his deplorable criminal conduct towards his granddaughter, and the Applicant’s claims he was essentially responding to the actions of his pre-pubescent granddaughter, he still asserts that his granddaughter is at least partially to blame:
DEPUTY PRESIDENT OWEN: You think that she wanted it, because you said to me earlier that it was a game?
APPLICANT: She’s the one who wanted it.
The Applicant’s attempts to add his granddaughter to his visit list in gaol, as well as write to her, despite being supposedly aware of the damage his behaviour has caused her, demonstrates a chronic lack of insight and contrition. The fact that attempts were made to do so, despite his repeated claims he would remain away from his victim, is a concern to the Tribunal in consideration of the risk of reoffending. His aggressive behaviour, both violent and sexual, whilst in gaol is demonstrative of a worrying lack of self-control. His behaviour is strongly suggestive to the Tribunal that a real risk of reoffending remains.
The Tribunal furthermore notes that the Applicant lacks a support network of family and friends to support him. Whilst his youngest son attended the telephone directions hearing where he stated he would attend the hearing, ultimately he did not attend to support his father, the Applicant. The Applicant confirmed he is no longer in contact with his daughter and son. Most of his brothers are now deceased. The Tribunal considers the lack of a supportive family and friend network around the Applicant — which could have acted as a protective counter for the Applicant in relation to future offending —further highlights the risk of reoffending.
The Tribunal has considered the Applicant’s age and general poor health in the context of the future risk of reoffending. Whilst the Tribunal accepts the Applicant is aged and suffers from a range of heath conditions that may reduce the likelihood of reoffending, the Tribunal holds greater concerns that the Applicant’s steadfast denial of much of his offending, and his demonstrated lack of insight into his offending are demonstrative that the risk of reoffending remains. His continued preparedness to shift blame and responsibility for his offending, including at the Tribunal’s hearing, to his victim remains a significant concern in relation to the risk of future reoffending,
The Tribunal considers the information and evidence on the risk of the non-citizen re-offending before it is strongly suggestive that a risk of reoffending remains.
The Tribunal has considered evidence of rehabilitation achieved by the Applicant by the time of the decision.
The Tribunal notes there is no evidence of the Applicant undertaking any specific rehabilitation to address the causes of his sexual offending. The Tribunal notes that when the Applicant applied for revocation of the mandatory cancellation of his visa in July 2020 he wrote ‘I am sure the programme I am yet to do in relation to my offence will be most helpful and minimise the chance of ever reoffending’.[20] Despite over three years elapsing since this time, there is no evidence of the Applicant undertaking any such course. This is further highlighted in his written response in July 2020 to the question whether he had completed any courses or programs that would help him avoid further offending. The Applicant responded ‘Before release… I will have done and completed a sexual offenders program as part of my incarceration and requirements for parole’.[21] There is nothing to suggest that this occurred. The Tribunal considers the lack of the undertaking of such rehabilitation to address matters such as his impulse control is directly relevant to risk, and suggestive that efforts to mitigate the risk of future reoffending have not been undertaken.
[20] G-Documents, 63.
[21] Ibid, 75.
The Tribunal notes that this failure to undertake such rehabilitation is contrary to the expectations of the sentencing judge who accepted the Applicant’s guilt plea as evidence of remorse for his offending, and indicative of his positive prospects for rehabilitation.
The Tribunal furthermore notes there is no evidence the Applicant was suffering from any mental illness at the time of his offending. The Tribunal notes the Applicant’s psychologist Mr Ball found the Applicant had no evidence of mental illness. The Applicant denied having experienced any symptoms of mental illness in the past. The Tribunal notes the reports of Professor Velakoulis who, as noted by Her Honour in sentencing, did not believe the Applicant ‘…suffered from any psychiatric or neurological condition at the time of offending’.[22] The Tribunal notes the evidence concerning matters such as the Applicant’s IQ, but notes that there is no evidence the Applicant did not have capacity at the time of his sexual offending against his granddaughter. In summary, the Applicant was aware of his actions when committing his sexual offending against his granddaughter. He was responsible for his own actions. Given the evidence that the Applicant had capacity and was not suffering from any mental illness at the time of his offending, the Tribunal considers the lack of the undertaking of any rehabilitation to address the causes of his offending are even more relevant to the question of the future risk of reoffending.
[22] G-Docs, 50.
The Tribunal has taken into account the report of the Applicant’s psychologist Mr Ball dated 31 October 2017. This risk assessment report, having taken into account the neuropsychiatric assessment of Professor Velakoulis, diagnosed the Applicant as satisfying DSM 5 diagnostic criteria for paedophilic disorder. Mr Ball considered there were factors that indicated a low risk of recidivism (ie Stable factors, and factors such as the Applicant’s age). Mr Ball however concluded when discussing protective factors against reoffending ‘The main protective factors that may be applied to [SPRT] are the successful completion of a sex offender treatment program. He would be greatly benefited from developing the understanding of the effects of sexual abuse on his victim’.[23]In his conclusion as to the Applicant’s rehabilitation and management in the community, Mr Ball stated the Applicant may be managed in the community ‘after the successful completion of a sex offender treatment program’.[24]This report was prepared over six years ago at the time of the Tribunal’s decision. Given the lack still today of the undertaking of any such treatment program – and the Applicant’s continual blaming of the victim for his abominable sexual offending and lack of insight into his own behaviour – the Tribunal considers a real risk of reoffending remains.
[23] G-Docs, 51.
[24] Ibid.
The Tribunal has considered the claim the Applicant’s psychologist Mr Ball made in a third report of 13 November 2017, prepared after the Applicant’s hearing and prior to sentencing for his offending on 16 November 2017. The conclusion of the report was made for inclusion in the submissions of the Applicant’s counsel Mr Michael Allen.[25] Mr Ball submitted that the Applicant would have suffered an intellectual impairment at the time of his offending; and this would have impaired his ability to exercise appropriate judgement. The Tribunal does not consider this report impacts the Tribunal’s assessment of risk of future re-offending. The Tribunal notes that Mr Ball was unable to quantify or qualify how the Applicant’s judgement would have been effected at the time of his offending.[26] Mr Ball furthermore noted that the Applicant said he knew his behaviour and conduct towards the victim at the time of his offending was wrong. Given there is no record of the Applicant undertaking any treatment as to either his sexual offending or his broader psychological health, the Tribunal considers the Applicant remains a risk of offending.
[25] Respondent’s Tender Bundle, 103.
[26] Ibid.
The only evidence before the Tribunal of the Applicant undertaking a programme as such is from October 2018 where the Applicant provided the NO TO VIOLENCE module.[27] The topics covered in this course were family and domestic violence, behaviour change and respectful relationships. This was not a sexual offender treatment programme. The Tribunal gives it no weight as evidence of any rehabilitation in relation to his paedophilic behaviour, his sexual offending or his impulse controls.
[27] Respondent’s Tender Bundle, 1143.
The Tribunal considers the Applicant’s lack of insight into his offending, and his preparedness to, still today, apportion blame and responsibility for his offending to his then pre-pubescent granddaughter, is indicative of the lack of progress when it comes to rehabilitation. The Respondent summarised the matter in closing submissions and reached a conclusion that the Tribunal concurs with:
MS DONAGHY: When placed in the context of someone who has not engaged in any rehabilitation to address his impulse controls, not any psychotherapy to address his paedophilic behaviour, nor does the applicant believe that he has any issues relating to inappropriate sexual behaviour, the minister submits that the tribunal should find that the protection of the Australian community weighs heavily in favour of non-revocation.
Conclusion about risk to the Australian community should the Applicant commit further offences or engage in serious conduct
The Tribunal has considered all the evidence before it and is not satisfied the risk to the Australian community, should the Applicant return to the community, does not remain.
The Tribunal is not satisfied the Applicant has demonstrated the undertaking of any rehabilitation and treatment that addresses the risk of the Applicant engaging in further criminal or other serious conduct. The risk factors of the Applicant’s offending have quite simply not, on the evidence before the Tribunal, been adequately addressed. The Applicant takes little responsibility for his actions, whether in relation to his offending pertaining to his granddaughter, or in matters such as fights he is involved in whilst incarcerated or previously in the workplace. The Applicant’s preparedness to make outlandish and manifestly absurd allegations — such as Corrective Services were trying to set him up when confronted with his attempts in gaol to contact his granddaughter — are indicative of his lack of insight into his behaviour and lack of responsibility for his actions. The fact he attempted to make contact with his granddaughter causes the Tribunal to have significant concerns as to his ability to control his actions, and again are suggestive of his impulsive behaviour.
The Applicant still today apportions blame onto his granddaughter, who was a prepubescent girl at the time, for his own appalling criminal behaviour and in his oral testimony to the Tribunal submitted that she initiated at least some of the sexual offending and kept encouraging his behaviour.
The Tribunal does not consider the Applicant to be a reliable witness. The Tribunal considers, as demonstrated at the Tribunal’s hearing, that he will change and shift his narrative to suit his circumstances. He will make outlandish allegations against others to justify his own actions. The Tribunal, in such circumstances, is not satisfied that the risk of the Applicant committing further offending is mitigated.
The Tribunal has no confidence the Applicant will not reoffend if he returns to the community given his lack of rehabilitation and treatment in relation to his predatory paedophilic behaviour, his demonstrated unwillingness to accept responsibility for his own actions, and his track record of poor behaviour involving fighting and making inappropriate advances to female staff whilst incarcerated.
The Tribunal notes that the Applicant has not spent time in the community since the most recent offence.
For the reasons above, the Tribunal ultimately considers there is not an insignificant risk he may reoffend. Given the seriousness of his past actions, the risk to the community should he reoffend is significant. The Tribunal notes the Applicant is estranged from almost all of his family, and considers there are few supportive mechanisms who will be there to potentially guard against reoffending. The lack of any rehabilitation in relation to his serious sexual offending and attempts to address such matters as his impulse control are all of genuine concern to the Tribunal. Based on all the evidence before it, the Tribunal considers that the risk of reoffending remains.
Conclusion: Primary Consideration 1
With reference to the weight attributable to Primary Consideration 1:
a)The Tribunal finds the nature and seriousness of the Applicant’s conduct has been very serious;
b)The Tribunal finds that were the Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious; and
c)In terms of recidivist risk, the Tribunal has, after a fulsome review of the evidence, concluded that the Applicant remains a serious risk of reoffending.
The Tribunal has formed the view that the Primary Consideration 1, protection of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

In relation to Primary Consideration 3, the Tribunal weighs the consideration heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction requires 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 8.4(2) and 8.4(3) respectively contain further considerations. 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 being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia in paragraph 8.4(4). Those include, relevantly:
·     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);
·     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;
·     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;
·     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;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     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;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence or claim before the Tribunal in relation to the consideration of the ‘best interest of minor children’.
The Tribunal has formed the view that the Primary Consideration 4, Best Interest of Minor Children, is of no relevance and gives it no weight.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal 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.
Paragraph 8.5(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.
Paragraph 8.5(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.
Paragraph 8.5(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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (“FYBR”).[34] In FYBR, the Court 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. Rather, 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.[35]
[34] [2019] FCAFC 185.
[35] 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.
Paragraph 8.5 of the Direction 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.
The Respondent notes in their submissions that paragraph 8.5(2) of the Direction provides that the Australian community expects that the Government can and should cancel a person’s visa if they raise serious character concerns through conduct that includes acts of ‘family violence’, and the commission of serious crimes against children of a sexual nature. Given the Applicant has done this, the Respondent submits that the Australian community would expect the Applicant’s visa remains cancelled.
The Tribunal agrees that 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.
The Tribunal agrees that the Applicant’s offending is of a type that raises serious character concerns as per paragraph 8.5(2) in the Direction. The Tribunal furthermore notes paragraph 8.5(3) of the Direction. This states these expectations of the Australian community, that the Government can and should cancel a person’s visa when character concerns like acts of ‘family violence’ and the commission of serious crimes against children of a sexual nature occur, apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community. Whilst the Tribunal is not satisfied that the Applicant does not remain a risk of causing harm to the Australian community, the Tribunal notes that even if it were, the community expectation remains that the visa should be cancelled.
Given the Applicant has engaged in specific kinds of conduct that raises serious character concerns such as sexual offending against a child, the Tribunal finds that the expectations of the Australian community is that the Applicant’s visa should be cancelled.
The Tribunal has formed the view that, given the seriousness and nature of the Applicant’s conduct, conduct which, by its very nature, raises serious character concerns, the community expectations would weigh heavily against the revocation of the cancellation of the Applicant’s visa.
The Tribunal has formed the view that the Primary Consideration 5, Expectations of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1)    Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)    International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
There is no claim by the Applicant, or evidence before the Tribunal, in relation to Australia’s international non-refoulment obligations.
No assessment by the Tribunal is necessary in this review.
(b) Extent of impediments if removed
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.
The Applicant departed Great Britain in 1952 as a five year old. He has lived in Australia for 71 years. The Tribunal accepts he would face genuine hardship attempting to re-establish himself in Great Britain given his age and health. The Applicant is 76 years of age at the time of the Tribunal’s decision. The Applicant’s health is poor. The Tribunal notes the summary of his health contained in the reports of Professor Velakoulis and Mr Ball who each noted the Applicant has a history of diabetes and is being treated for hypertension and high cholesterol.[36] The Applicant lost a kidney as a young child and at the Tribunal’s hearing stated his remaining kidney had issues of concern. The Tribunal is satisfied that his age and health are impediments if removed to Great Britain. The Tribunal notes, however, as a British citizen, the Applicant will have access to the National Health Service for universal health care.
[36] Respondent’s Tender Bundle, 91.
The Tribunal does not consider there are any language barriers to the Applicant’s return to Great Britain. Great Britain has changed substantially since 1952, but the Tribunal is satisfied there would nevertheless be very few cultural barriers the Applicant would face in re-establishing himself.
The Tribunal has considered social, medical, and/or economic support available in Great Britain. In relation to matters such as employment, the Applicant’s age is obviously a disadvantage. Furthermore, his lack of education (having left school and joined the work force at the age of 15) along with his assessed IQ score of 65,[37] satisfies the Tribunal that the Applicant would struggle to find employment, and this would adversely impact the Applicant.
[37] G-Docs, 50.
The Applicant claims he has no friends or family in Great Britain. The Tribunal accepts his immediate family and much of his extended family are all in Australia and departed Great Britain many years ago. The Tribunal accepts he will be lacking in social support by departing to Great Britain, but considers this challenge is mitigated by the fact he has little to no contact with his family in Australia anyway beyond his youngest son. The Tribunal accepts there will be emotional hardship for both the Applicant and his younger son upon the Applicant’s departure to Great Britain.
The Tribunal does not consider the Applicant would face any particular hardship in relation to medical and economic support available to him in Great Britain. As a British citizen, the Applicant will enjoy access to financial support through the pension system, and health support through the National Health Service like any other British citizen of his age. This financial and health support is broadly equivalent to what is available in Australia through Centrelink and our Medicare system.
There can be little doubt after over seven decades in Australia, removal to Great Britain will be a genuine hardship to the Applicant, particularly given his age, health and poor prospects at securing employment. The counter to this is Great Britain will not present the Applicant with any language or cultural barriers of integration, whilst he will be able to access income and health support through a pension and universal health system broadly similar to that in Australia.
The Tribunal has formed the view that the Other Consideration (b), extent of impediments if removed, weighs significantly in favour of revocation of the cancellation of the Applicant’s visa.
(c) Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account 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.
The victim of the Applicant’s offending is his granddaughter. Whilst there are no submissions as to the impact of the Applicant’s offending, the Tribunal again notes the comments of the sentencing judge who stated the victim:
constantly ruminates about what happened and suffers symptoms of post-traumatic stress disorder, such as flashbacks, inconsolable crying, panic attacks, depression and problems sleeping. She now has difficulties trusting males and has engaged in self-harm by cutting herself in the past. She continues to receive medical treatment and psychological support. The offending has negatively impacted upon both her and upon her family relationships generally. She is very concerned for her mother, whom, she states, is very upset because her mother perceives that she did not take enough steps to properly protect her from [the Applicant’s] sexual abuse[38]
[38] G-Docs, 47.
The evidence suggests the impact of the Applicant’s offending has had a catastrophic effect upon his granddaughter, the victim.
The Tribunal has formed the view that the Other Consideration (c), impact on victims, weighs against the revocation of the cancellation of the Applicant’s visa.
(d) Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal finds the removal of the Applicant from Australia will not have any impact on Australia’s business interests. The removal of the Applicant will not significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal has formed the view that the Other Consideration (d), impact on Australian business interests, weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision: weighs neither in favour nor against the revocation of the cancellation of the Applicant’s visa.
(b)extent of impediments if removed: weighs slightly significantly in favour of the revocation of the cancellation of the Applicant’s visa.
(c)impact on victims: weighs against the revocation of the cancellation of the Applicant’s visa.
(d)the impact on Australian business interests: weighs neither in favour nor against the revocation of the cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked. In considering how to exercise its discretion, the Tribunal has considered the totality of the Applicant’s circumstances, noting that the considerations set out in Direction 99 are not exhaustive.
A factor that weighs very heavily against revocation is Primary Consideration 1, the protection of the Australian community. The Applicant has committed very serious sexual offending against his own granddaughter when he was in a position of trust, and his victim was a pre-pubescent girl. This offending continued for a significant period of time. His lack of insight into his offending and his continued desire to shift the onus of responsibility for his monstrous actions back to his granddaughter are, in the Tribunal’s opinion, contemptible. The lack of any engagement in rehabilitation to address the causes of his offending behaviour remains of deep concern. The Tribunal notes that the Applicant was found to be aware of his actions and did not exhibit any mental health conditions that affected his capacity at the time of his offending. He has been diagnosed as meeting the criteria for a paedophilic disorder, but there remains no evidence of treatment and professional assistance to counter the risk of any reoccurrence. The Applicant has demonstrated poor self-control whether at the workplace, in gaol or in relation to his offending. He has very little family support to assist in any rehabilitation.

The Tribunal considers that there is a very serious risk to the Australian community should the Applicant commit further offences or engage in serious conduct, despite the limitations of his obvious age and health. The Tribunal also has significant questions as to the credibility of his evidence given his preparedness to contradict and deny earlier admissions as well as making sometimes absurd allegations in an attempt to justify his past offending. The Tribunal has also found, for the reasons set out above, that the two primary considerations of the expectations of the Australian community and family violence would similarly weigh very heavily against the revocation of the cancellation of the Applicant’s visa. In relation to the expectations of the Australian community, the Tribunal notes the Applicant’s offending is classified as both acts of family violence and as a serious crime committed against children of a sexual nature. Such behaviour is regarded as a serious character concern, and paragraph 8.5(2) states there is an expectation of the Australian community that a person’s visa should be cancelled when such conduct occurs. In relation to family violence, the Applicant’s offending was repeated over almost three and a half years. The cumulative effect was disastrous for the Applicant’s granddaughter who has suffered significant trauma. The Applicant’s failure to engage in rehabilitation, psychotherapy or other treatment to address his offending weighs against him, as does his failure to accept genuine responsibility for his actions.
Further to considerations weighing against revocation of the cancellation, the Tribunal also considers the impact upon victims – the Applicant’s own granddaughter – also weighs against revocation. The comments of the sentencing judge reflect the grief, pain and devastation experienced by the Applicant’s granddaughter as a result of his offending.
The Tribunal has weighed the strength, nature and duration of the Applicant’s ties as a primary consideration heavily in favour of revocation of the cancellation of the Applicant’s visa. Whilst his immediate family ties have almost vanished, the Tribunal nevertheless notes he has been in Australia for 71 of his 76 years and has only left Australia twice in that time. The Tribunal has also weighed the other consideration: extent of impediments if removed, in favour of revocation of the cancellation of his visa. This is due to his age and health, his challenges in establishing himself at this time in his life, and his lack of family and friends in Great Britain.
It is necessary to weigh up all of the primary and other considerations:
·Primary consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
·Primary consideration 2 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
·Primary consideration 3 weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
·Primary consideration 4 weighs neither in favour nor against the revocation of the cancellation of the Applicant’s visa.
·Primary consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
·Other consideration (a) and (d) are neutral.
·Other consideration (b) weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
·Other consideration (c) weighs against revocation of the cancellation of the Applicant’s visa.
Having carefully considered all the relevant circumstances, the Tribunal has decided to give greater weight to the primary considerations of the protection of the Australian community, family violence, and the expectations of the Australian community. In the particular circumstances of this case, the Tribunal has decided that these three considerations very heavily outweigh other considerations that weigh in favour of the revocation.
The Tribunal finds that the proper application of the Direction favours the Tribunal affirming the decision made by the delegate of the Respondent dated 3 August 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 12 September 2023 not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justin Owen.

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

Dated: 5 December 2023

Date of hearing: 27 November 2023

Advocate for the Applicant:
Self-represented

Advocate for the Respondent: Ms N Donaghy
Annexure A – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Wollongong Childrens Court	8 June 1961	Expose Person	Committed to Institution
Wollongong Childrens Court	18 October 1962	Use Indecent Language on Telephone	Probation without condition: 18 months
Wollongong Petty Sessions	31 March 1967	Obscene Exposure	Custodial: 6 months hard labour
Wollongong Quarter Sessions	4 October 1967	Obscene Exposure Appealed against conviction dated 31 March 1967	Confirmed: in lieu custodial 3 months hard labour suspended on enter recognizances with condition: $100 3 years place self under supervision and guidance. Adult probation service fine: $100
Melbourne County Court	24 November 2017	Persistent Sexual Abuse of a Child U/16	8 years imprisonment

[2023] AATA 4049

5 December 2023

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Judicial Review

Natural Justice & Procedural Fairness

Constitutional Validity

Legitimate Expectation

Proportionality

Date of Conviction	Offence	Sentence
24.11.2017	Persistent sexual abuse of a child U/16	8 years imprisonment
04.10.1967	Obscene Exposure. Appealed against conviction of 31.03.1967	Conviction confirmed: in lieu custodial: 3 months. Hard labour suspended on enter recognizances with cond: $100 3 years place self under supervision and guidance adult probation service fine: $100
31.03.1967	Obscene Exposure	Custodial: 6 months hard labour
18.10.1962	Use indecent language on the telephone	Probation without condition: 18 months.
08.06.1961	Expose person	Committed to institution

Date of hearing:	27 November 2023
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms N Donaghy