Stacey and Minister for Home Affairs (Migration)
[2019] AATA 1073
•22 May 2019
Stacey and Minister for Home Affairs (Migration) [2019] AATA 1073 (22 May 2019)
Division:GENERAL DIVISION
File Number:2019/1138
Re:Ralph Stacey
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:22 May 2019
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated
27 February 2019 not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.........................[sgd].............................................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – child sex offences – Direction no. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor grandson – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to United Kingdom – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B),
500(6H), s 500(6L), s 501, s 501(3A), s 501(6), s 501(6)(a), s 501(6)(e) s 501(7),
s 501(7)(c), s 501CA, s 501CA(4), s 501G(1)Sentence Administration Act 2003 (WA) – s 5A(a), s 5B
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Margach and Minister for Home Affairs [2019] AATA 353
Nathanson and Minister for Home Affairs [2019] AATA 642
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 7, 8, 13, 14, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
22 May 2019
BACKGROUND
The Applicant is a 56 year old man who was born in the United Kingdom. He arrived in Australia with his mother and step-father when he was 15 years of age as a permanent resident (Exhibit A1, paragraph [1]). He last arrived in Australia after travelling overseas on 4 June 2006 (Exhibit R1, G30, page 210).
A letter to the Applicant dated 19 March 2014 from the Department of Immigration and Border Protection (Department) advised that consideration was being given to cancelling the Applicant’s Class BB Subclass 155 Five Year Resident Return Visa (Visa) which was granted to him on 27 April 2006. This was on the basis that he may not pass the character test under s 501 of the Migration Act 1958 (Cth) (Migration Act) (Exhibit R1, G29, page 206).
In a letter from the Department dated 20 July 2016, the Applicant was advised that his Visa was cancelled under s 501(3A) of the Migration Act (Exhibit R1, G3, page 4). The letter advised the Applicant that he could make representations about whether the decision to cancel his Visa should be revoked (Exhibit R1, G3, pages 4-5). The Applicant made representations (Exhibit R1, G11, pages 79-95) which were received by the Department on 9 August 2016 (Exhibit R1, G28, page 203).
On 11 January 2019 the Applicant was also invited to make further representations with respect to additional documentation which the Department proposed to take into account including his National Police Certificate dated 23 July 2016; an immigration report dated 10 January 2019; and a transcript of proceedings from the District Court of Western Australia from 16 January 2017 (Exhibit R1, G28, pages 203-204). It is unclear whether the Applicant made any representations because there are none contained in the materials before the Tribunal.
On 27 February 2019 a delegate of the Respondent made a decision not to revoke the mandatory cancellation of the Applicant’s Visa (Exhibit R1, G7, pages 28-42). This is the Reviewable Decision that is currently before the Tribunal.
On 1 March 2019, the Applicant lodged an application in the Administrative Appeals Tribunal (Tribunal) requesting a review of the Reviewable Decision (see letter from Applicant dated 27 February 2019 in Exhibit R1, G2, page 3).
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 79).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision of 27 February 2019 was hand delivered to the Applicant who signed to acknowledge receipt on the same date (Exhibit R1, G7, page 28; Exhibit R1, G32, page 212). The Applicant lodged his application for review in the Tribunal on
1 March 2019 (Exhibit R1, G2, page 3). The Applicant is in prison, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and
s 500(6B) of the Migration Act.
The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Migration Act, the Tribunal must comply with the
84 day timeframe for handing down a decision in this matter. This means that the decision must be handed down by Wednesday 22 May 2019.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 13 May 2019. The Applicant appeared in person, accompanied by Prison Officers, and was self-represented.
The Respondent was represented by Mr Burgess, who appeared in person.
The Applicant gave oral evidence and was cross-examined. The Applicant also called his sister, Ms A, as a character witness. Both the Applicant and Mr Burgess made oral submissions. As the Applicant was self-represented, the Tribunal assisted with asking the Applicant and Ms A questions by way of evidence in chief.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 19 April 2019 (Exhibit A1);
(b)s 501 documents (G documents) comprising 245 pages (Exhibit R1);
(c)Respondent’s Statement of Facts, Issues and Contentions dated 4 April 2019 (Exhibit R2);
(d)
Table of Applicant’s Criminal Record compiled by the Respondent comprising
pages (Exhibit R3); and
(e)Tender Bundle comprising the following documents (collectively Exhibit R4):
(i)Annexure 1 – Documents produced under summons from Western Australia Police Force (with pages numbered 1 to 157);
(ii)Annexure 2 - Documents produced under summons from Perth District Court (with pages numbered 1 to 156);
(iii)Annexure 3 - Documents produced under summons from Midland Magistrates Court (with pages numbered 1 to 93); and
(iv)Annexure 4 - Documents produced under summons from Department of Justice (with pages numbered 1 to 252).
The Applicant’s sister, Ms A, in an email to the Registry of the Tribunal dated 30 April 2019, had also sent a statement in support of the Applicant. A copy of this email was not served on the Respondent. Consequently, the Tribunal could not admit this statement into evidence because of the operation of the two-day rule in s 500 (6H) of the Migration Act.
In summary, the two-day rule provides that the Tribunal must not have regard to any information in support of an Applicant’s case unless the information was provided to the Minister at least two business days before the start of the hearing. In the case of oral evidence, this means that a statement of the evidence must be provided at least two business days before the start of the hearing. The Tribunal notes, however, that the
G documents (Exhibit R1), contained two statements from Ms A dated 22 August 2016 (PG26, pages 199-200) and 4 February 2019 (PG26, page 201), and so the Tribunal was able to have regard to the oral evidence of Ms A as it related to those statements.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) 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); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7); or
…
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
DIRECTION NO. 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. Direction no. 79 replaced the previous Direction no. 65. Consequently, as the Tribunal is handing down this decision on 22 May 2019, the Tribunal must apply Direction no. 79. The Tribunal proceedings were conducted on the basis that Direction no. 79 applied.
Paragraph 6.1 of Direction no. 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 19 December 2012, the Applicant was convicted in the District Court of Western Australia of 10 child sex offences including two counts of “sexually penetrated a child over 13 and under 16: Criminal Code s 321(2)”; two counts of “procured a child over 13 and under 16 to engage in sexual behaviour: Criminal Code; s. 321(3)”; three counts of “indecently deals with a child over 13 and under 16: Criminal Code S 321(4)” and three counts of “child sex offender being near a public place: Criminal Code; S. 557K(6)(b)”. He received an effective sentence of 7 years comprising concurrent and cumulative terms which totalled 21 years and 8 months.
Consequently, the Applicant does not pass the character test under
s 501(6)(a) and s 501(7)(c) of the Migration Act. He also does not pass the character test under s 501(6)(e) because he was convicted of sexually based offences involving a child.
As the Applicant does not pass the character test, the Tribunal must now consider whether there was “another reason” why the Reviewable Decision should be revoked.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction no. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction no. 79 then provides:
Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction no. 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
A summary of the Applicant’s criminal history is as follows (Exhibit R3, see also Exhibit R1, G8, pages 43-45; and Exhibit R4, Annexure 1, pages 7-10):
Jurisdiction
Offence Date
Result Date
Offence
Result
WA
Unknown
22/05/1980
Unlawfully on place/premises
Sentenced as Adult 12 months probation
WA
Unknown
22/05/1980
Stealing (two counts)
Sentenced as Adult 12 months probation on each count
WA
Unknown
22/05/1980
Break and enter dwelling with intent (three counts)
Sentenced as Adult 12 months probation on each count
WA
Unknown
22/05/1980
Indecent assault (male)
Sentenced as Adult 12 months probation
WA
Unknown
22/03/1983
Dangerous driving
Fine - $100
WA
Unknown
22/08/1983
Receiving
Fine - $50
WA
Unknown
13/03/1986
Excess 0.08%
Fine - $450; driving licence disqualified – 4 mths
WA
07/07/2006
04/08/2006
Careless driving
Fine - $400
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Supvsn & programme cond susp imp order: 12 mths imp suspended for 24 mths
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Reportable offender dec. total: 2 yrs imp suspended for 2 yrs cond susp imp order: 12 mths imp conc suspended for 24 mths. Conditions: supvsn & programme
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Conditions: suspvsn & programme cond susp imp order: 12 mths imp conc suspended for 24 mths
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Conditions: suspvsn & programme cond susp imp order: 12 mths imp conc suspended for 24 mths
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Conditions: suspvsn & programme cond susp imp order: 12 mths imp conc suspended for 24 mths
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Conditions: suspvsn & programme cond susp imp order: 12 mths imp conc suspended for 24 mths
WA
Unknown
16/01/2007
Indecent Dealings with Child Under 13 Years: Criminal Code (WA) s320(4)
Conditions: supvsn & programme cond susp imp order: 12 mths imp cum suspended for 24 mths
WA
10/08/2009
22/10/2009
Indecent acts in public
Fine - $1000
WA
24/08/2009
22/10/2009
Indecent acts in public
Intensive supvsn order: 18 mths (supvsn)
WA
21/02/2012
19/12/2012
Child sex offender being near a public place: Criminal Code (WA) s 557K(6)(b)
s32 Sentencing Act 1995 (WA) Imprisonment: 2 mths cumulative
WA
26/03/2012
19/12/2012
Child sex offender being near a public place: Criminal Code (WA) s 557K(6)(b)
s32 Sentencing Act 1995 (WA) Imprisonment: 6 mths concurrent
WA
09/03/2012
19/12/2012
Child sex offender being near a public place: Criminal Code (WA) s 557K(6)(b)
s32 Sentencing Act 1995 (WA) Imprisonment: 4 yrs cumulative
WA
28/09/2011
19/12/2012
Indecent Dealings with Child under 13 years: Criminal Code (WA) s320(4)
Imprisonment: 1 yr cumulative
WA
28/09/2011
19/12/2012
Indecently Deals with a Child Over 13 Under 16: Criminal Code (WA) s321(4)
Imprisonment: 2 yrs concurrent
WA
28/09/2011
19/12/2012
Indecently Deals with a Child Over 13 Under 16: Criminal Code (WA) s321(4)
Imprisonment: 2 yrs cumulative
WA
Various
19/12/2012
Procured a Child over 13 and under 16 to Engage in Sexual Behaviour: Criminal Code (WA) s 321(3)
Imprisonment: 3 years concurrent
WA
13/12/2011
19/12/2012
Procured a Child over 13 and under 16 to Engage in Sexual Behaviour: Criminal Code (WA) s 321(3)
Imprisonment: 3 years concurrent
WA
12/12/2011
19/12/2012
Sexually Penetrated a Child over 13 and under 16: Criminal Code (WA) s 321(2)
Imprisonment: 3 years
WA
31/12/2009
19/12/2012
Sexually Penetrated a Child over 13 and under 16: Criminal Code (WA) s 321(2)
Imprisonment: 3 years concurrent
WA
14/05/2012
19/12/2012
Possess a Smoking Utensil: Misuse of Drugs Act 1981 (WA) s 5(1)(d)(i)
s32 Sentencing Act 1995 (WA) Fine - $200, order for destruction
WA
14/05/2012
19/12/2012
Possess a Prohibited Drug (Cannabis): Misuse of Drugs Act 1981 (WA) s 6(2)
s32 Sentencing Act1995 (WA) Fine - $300, order for destruction
WA
26/03/2012
19/12/2012
Reckless driving (dangerous to public or any person): Road Traffic Act 1974 (WA) s 60(1)
Imprisonment: 6 mths cumulative; driving licence disqualified – 12 mths
WA
26/03/2012
19/12/2012
Driver fail to stop (property damage): Road Traffic Act 1974 (WA) s 55(1)
Imprisonment: 6 mths concurrent
As can be seen from the above table, the Applicant has a long history of child sexual offences against young children. He was first convicted of a sexual offence against a minor in 1980 at the age of 18, and was sentenced to adult probation for 12 months, although the offence was committed when the Applicant was 17 years of age. This offence involved the Applicant reaching through the window of a house and touching the penis of a young boy who was in his bed (Exhibit R1, G9, page 59; G13, page 101).
On 16 January 2007, the Applicant was convicted of seven counts of “indecent dealings with a child under 13 years”. These offences included holding his penis and masturbating in front of children aged 10, 8, 9 and 7 years old while they were walking home, and signalling the children to approach him; stepping out of his vehicle naked, signalling for the children to approach him, and masturbating in front of children aged 10, 8 and 7 years when they were playing at a park (Exhibit R4, Annexure 1, pages 141-142; Exhibit R1, G10, page 70). These offences occurred in a similar location near a medical centre in front of the same children (Exhibit R4, Annexure 2, page 7). Following these convictions the Applicant was registered as a sex offender.
In her sentencing remarks, Her Honour Kennedy CJDC noted the seriousness of this offending (Exhibit R4, Annexure 2, pages 11-12; Exhibit R4, G10, pages 75-76):
… what you did was in the past referred to as wilful exposure and there were two separate occasions, approximately a week part, virtually in the same place and in the presence of the same children.
It is extremely serious because these children were playing close to home, in a park. Their parents expect that they will be able to go out and play in great innocence and they do not expect that they will have to encountered this sort of behaviour and, fortunately, these children had been sufficiently trained by their parents that when they saw you come again they ran to their parents and - they ran to an adult on the first occasion. So that these children were well trained as to what to do and the result of that training is that you have been caught and you are before the court today.
It is very frightening experience for them. It is a corrupting experience, they should not have to tolerate such things, and it is very serious as the prosecutor has pointed out.
On 22 October 2009, the Applicant was convicted in the Midland Magistrates Court of two counts of “indecent acts in public”. One of these offences involved the Applicant getting out of his vehicle naked in front of two adult women who were walking 10 to 15 metres away from the Applicant (Exhibit R4, Annexure 3, page 47). The other offence involved the Applicant unzipping his trousers and pulling out his erect penis in front of a 16 year old girl who was playing on her skateboard (Exhibit R4, Annexure 3, page 48). It appears that the complainant immediately informed her father and uncle who severely assaulted the Applicant (Exhibit R4, Annexure 3, page 59). Indeed, when sentencing the Applicant, Magistrate Smith commented, “... some people, perhaps most people in the community, consider this type [of offending] as being extremely seriously [sic]. I mean, you have only got to look at the reaction of the 16-year-old’s father.” (Exhibit 4, Annexure 3, page 66).
The three counts of “child sex offender being near a public place” for which the Applicant was convicted on 19 December 2012 involved the Applicant attending a day care car park on two occasions. On one occasion the Applicant parked his vehicle in the child care centre car park and signalled to two three year old boys who were playing with their trucks on the footpath to come over to his vehicle. On the other occasion the Applicant parked his vehicle on the verge outside the child care centre, got out of his vehicle and began to stroke his penis and signal to the children to come over to him. The third count involved the Applicant parking his vehicle near a park where there were children playing and as children were walking home the Applicant signalled from his car for the children to come over to his vehicle (Exhibit R4, Annexure 1, pages 52-53).
On 19 December 2012, the Applicant was convicted of two counts of “procured a child over 13 and under 16 to engage in sexual behaviour”, and two counts of “sexually penetrated a child over 13 and under 16”. These offences were committed against the same 15 year old victim who went to the same school as the Applicant’s youngest son and who was acquainted with the Applicant’s older son. The Applicant commenced a relationship with 15 year old boy who the Applicant knew to be homosexual and to be vulnerable following a relationship breakup. Contact between the Applicant and the
15 year old boy commenced when the Applicant sent him a Facebook message. Subsequently, the Applicant exchanged hundreds of Facebook and telephone messages with the boy (Exhibit R4, Annexure 2, page 138), before commencing a physical relationship. Between 10 December and 14 December 2011, the Applicant engaged in anal intercourse with the boy several times on two occasions, and also showered with the boy on two occasions. The Applicant also took the boy to a public place to show him where men would meet for anonymous sex (See Judges sentencing remarks in Exhibit R4, Annexure 2, pages 21-24).
The seriousness of the Applicant’s offending against the 15 year old victim was referred to by His Honour O’Neal DCJ in his sentencing remarks (Exhibit R4, Annexure 2, page 34). His Honour stated:
Offences involving the sexual abuse of children are very serious. The dominant sentencing considerations are personal and general deterrence and the protection of children. Mitigatory factors are given less weight.
Your offending against [victim’s name omitted] was, in my view, highly predatory. You capitalised upon the emotional upset of an adolescent boy for your own sexual gratification. The idea that a 15 year old boy might be assisted in any way by what you did, that you would think it appropriate to introduce him to a place where he might meet older men like yourself for anonymous [sic] is frankly appalling…
In his sentencing remarks, His Honour O’Neal DCJ noted the effect on the victim of the offending (Exhibit R4, Annexure 2, page 95):
I’ve read the statement of [victim’s name omitted] dated 3 December 2012. From all of the evidence that I heard it’s apparent that although he is an intelligent boy, there are matters in his background that make him emotionally vulnerable. You recognised that and exploited it.
While this offending was not committed by the use of force and he was in that sense a willing participant, you were only able to carry it out because of his vulnerability. He didn’t go to the police with a complaint and was not willing at first to cooperate with the investigation of your offending.
Ultimately, it seems, he realised how he’d been taken advantage of by you. That realisation has caused further emotional problems including depression leading to self-harm, and a suicide attempt. You have further damaged what relationship he had with his mother, and causing problems of trust in new relationships, matters that undoubtedly will continue to affect him for some time.
All of the problems that he has experienced were entirely predictable as you would have realised had you given the least thought to anything beyond your own sexual gratification.
Also, on 19 December 2012, the Applicant was also convicted of three counts of “indecent dealings with a child over 13 and under 16”. These offences were committed whilst the Applicant was on bail for the offences committed against the 15 year old victim. After consuming a bottle of vodka, the Applicant stood naked in front of a number of children in a front yard jumping on a trampoline, and signalled to a 6 year old boy to come over to him while he was masturbating (Exhibit R4, Annexure 1, page 53; Exhibit R4, Annexure 2, page 66; Exhibit R4, Annexure 2, page 114).
The Applicant’s criminal history shows that he has committed numerous sexual offences against children. Applying paragraph 13.1.1(1)(a) of Direction no. 79, sexual crimes such as those committed by the Applicant, are viewed seriously.
Paragraph 13.1.1(1)(b) of Direction no. 79 is not applicable because the Applicant’s offences were not “crimes of a violent nature against women or children”.
Paragraph 13.1.1(1)(c) of Direction no. 79 provides that crimes committed against vulnerable members of the community are serious. Children are vulnerable members of the community. Indeed, many laws, including the criminal law, operate to protect children who are generally accepted as vulnerable and as requiring protection. There is a substantial power imbalance between adults and children, with adults occupying a position of trust, authority, knowledge and often physical strength over children. Consequently, the Tribunal finds that the Applicant’s sexual offences against children, particularly his offending against the 15 year old boy, are serious.
Paragraph 6.3(3) of Direction no. 79 is also relevant in that examples of a “serious crime” include crimes of a sexual nature against women or children. It states that persons who commit these crimes should generally expect to forfeit the privilege of staying in Australia. This principle is applicable to the Applicant’s situation as his offences are sexual offences involving minors.
Applying paragraph 13.1.1(1)(d) of Direction no. 79, on 18 February 2016 the Applicant was sentenced to an effective term of imprisonment of seven years in the District Court of Western Australia on 19 December 2012. This seven year term was comprised of concurrent and cumulative terms of imprisonment totalling 21 years and eight months. The sentencing Judge ordered that the Applicant would be eligible to be considered for release on parole after serving a minimum of five years imprisonment (Exhibit R4, Annexure 2, page 37). This sentence of imprisonment is lengthy and reflects the very serious nature of the Applicant’s offending. So too does the eligibility for parole after serving a five year sentence of imprisonment. A prison sentence is also a last resort, and the Tribunal notes that the Applicant had previously been sentenced to adult probation, suspended terms of imprisonment, and an intensive supervision order.
With respect to the trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction no. 79), the Applicant’s criminal offending shows a lengthy history of sexual offending which commenced in 1980, and which continued until 2012. His offending can certainly be regarded as increasing in seriousness, with numerous indecent dealing offences throughout the years, escalating to more serious sexual offending against a 15 year old victim including “sexual penetration of a child over 13 and under 16” and “procured a child over 13 and under 16 to engage in sexual behaviour”.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction no. 79), the Tribunal will often consider whether offending over a period of time by an Applicant places a burden on the resources of police, corrective services, and the courts. The Applicant has committed approximately 30 offences between 1980 and 2012, which the Tribunal finds would have had such an effect. Additionally, with respect to the offending against the 15 year old victim, the Applicant initially denied the offending, and pled not guilty before being convicted by a jury, thus having a cumulative effect in terms of the resources of the justice system, but also in making the victim participate in the trial.
The Respondent has submitted (in Exhibit R2, paragraph 39(f)) that the Applicant provided false or misleading information to the Department by not disclosing prior criminal offending (paragraph 13.1.1(1)(g) of Direction no. 79) on his incoming passenger card. This card was completed by the Applicant on 3 June 2006 when the Applicant returned to Australia from Bali. In response to the question, “Do you have any criminal convictions?”, the Applicant ticked the box marked “no”. However, this was not put to the Applicant by Counsel for the Respondent at the hearing, and so it would not be appropriate for the Tribunal to make an adverse finding against the Applicant in the absence of any explanation.
Paragraph 13.1.1(1)(h) of Direction no. 79 is also not applicable because the Applicant has not previously received any warning that further offending may affect his migration status.
Paragraph 13.1.1(1)(i) of Direction no. 79 is also not applicable because the Applicant is in prison, and has not committed any crime in immigration detention.
On balance, the Tribunal finds that the nature of the Applicant’s offending is very serious and strongly weighs against the revocation of the cancellation of the Applicant’s Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at paragraph [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
With respect to the nature of the harm that could result if the Applicant is to reoffend, the Respondent, in Exhibit R2, paragraph [40], submitted that, “the nature of harm if the applicant were to reoffend is very serious and is likely to involve physical and psychological harm to potential victims”. The Tribunal agrees, and applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend in a sexual manner against a child is serious (for offences including indecent dealing offences), and potentially very serious (for offences involving procurement and sexual penetration of a child). This type of offending can have a devastating impact on victims who may not only suffer physical harm, but also psychological harms which can continue well into adulthood.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
no. 79).
In his sentencing remarks of 19 December 2012, His Honour O’Neal DCJ made relevant observations about the Applicant’s likelihood of reoffending. His Honour stated that the Applicant “reported a history of heavy drinking and alcohol dependence that began from age 15 or 16” and noted that the Applicant drank heavily to the point of becoming intoxicated and vomiting approximately two or three times per week (Exhibit R1, G9, page 58). His Honour also noted that the Applicant described experiencing alcohol-related blackouts and that he had committed some driving offences due to his alcohol problem (Exhibit R1, G9, page 58). His Honour further stated that drinking alcohol was an “extremely high risk factor” for the Applicant’s sexual offending (Exhibit R1, G9, page 59).
His Honour also commented on the Applicant’s prospects of rehabilitation, and his past completion of two community-based sex offender treatment programs, after reviewing reports written by a psychologist and psychiatrist which were prepared for sentencing (Exhibit R1, G9, page 60):
Your most recent offence on 26 March 2012, bears a very close resemblance to your earlier offending. That’s despite the fact that on these two community orders that I’ve referred to, you were engaged in two community-based sex offender treatment programs.
[The psychologist] observed that [sic] were noted to have made significant gains from these programs. Now, she says, however, it is likely that intellectually and due to familiarity with treatment concepts, Mr Stacey can give the impression of having made gains.
In my view, there is a broader truth in what [the psychologist] says and those responsible for your rehabilitation in future will have to be careful to ensure that you’re not simply telling them what you think they want to hear.
…
I’ve referred to the reports that I’ve received about you. The reports are not encouraging, to say the least. Even before your conviction for the offending against [the 15 year old boy], you were deemed at high risk of re-offending in the future.
Despite the fact that you have received treatment in the community for sexual offending, for alcohol dependency and for other mental health issues, you’ve continue to reoffend, and indeed, your offending has escalated.
His Honour went on to state (Exhibit R1, G9, page 61):
So far as your prospects for rehabilitation, given the failed attempts at dealing with your offending behaviour to date, the prospects for your rehabilitation must be an open question at best.
You have sought or accepted treatment in the past but it has not had any lasting effect. In some respects, you’ve sabotaged what progress you’ve made. You deny the worst of your offending and it is not apparent that you really acknowledge your blameworthiness for the other offending, notwithstanding your pleas of guilty.
Your claims of repeated memory loss are difficult to accept. [The psychiatrist] says that your alcohol abuse needs to be dealt with assertively and that you require individual psychotherapeutic work. And as I say, I don’t find that there’s any remorse on your part.
To the contrary, you continue to blame the victim of the offending in indictment 540 [the offences against the 15 year old boy]. With the charge of indecent dealing on indictment 640 and the other offences, you simply claim that you have no recollection.
His Honour concluded that (Exhibit R1, G9, page 62), “As [the psychologist and the psychiatrist] have observed, correctly in my view, you are at high risk of further sexual offending.”
The sentencing Judge’s remarks indicate that, as at 19 December 2012, when the Judge sentenced the Applicant to an effective term of imprisonment of seven years, the Applicant was regarded by a psychiatrist, a psychologist and the sentencing Judge as being at a high risk of sexual reoffending, and that he required intensive treatment for his alcohol abuse, which contributed to his offending. These comments also show that any future treatment gains expressed to be made by the Applicant should be treated with some caution due to the Applicant reoffending after completing two community based sex-offender treatment programs, the Applicant’s familiarity with treatment concepts and his ability to tell rehabilitation providers what they wanted to hear. The sentencing Judge’s comments also indicate concerns with the credibility of the Applicant’s evidence, and that the Applicant had failed to accept responsibility, or show remorse for his offending. Overall, the sentencing Judge regarded the Applicant as being a high risk of sexual re-offending.
In Exhibit A1, paragraphs [11] and [12], the Applicant made the following submissions about the sentencing Judge’s remarks, and the pre-sentence reports from the psychologist and the psychiatrist:
11. The pre-sentence reports that were conducted by [the psychiatrist and the psychologist] in Hakea prison 2012 should not carry any weight at all. This is due to the fact I was denying all the events with [the 15 year old victim] at that time. I also had no true understanding of my offending behaviour as I do now. The sentencing Judge’s opinions, beliefs, views were based on my past and reports done by [the psychiatrist and the psychologist] in 2012 they should carry little weight to my current state of mind and my further risk of offending. As I stated before, I was denying what I did with [the 15 year old victim] and this was now seven years ago spent in prison, ten psychologist [sic] and three programs later.
12. I am not addicted to alcohol. I would drink to disinhibit myself so I could offend. I did not offend because of the alcohol. Both the alcohol and my sexual offending have been a coping style for my anxiety, depression, and PTSD, but not anymore, now I know why I did what I did, so now I can meet my needs in a socially acceptable way and it does not include avoidance.
Consequently, the Tribunal will now consider relevant evidence and submissions as to whether the Applicant subsequently made gains that would reduce his likelihood of re-offending. These include the Applicant’s insight into his offending, his completion of rehabilitation programs in prison, and the support that the Applicant would receive if released into the community from his sister, Ms A, and through the two year period of post-sentence supervision imposed by the Prisoners’ Review Board.
Regarding the Applicant’s insight into his offending. The Applicant gave evidence that, from the time he was approximately 8 years of age, he started exposing himself through his bedroom window, then outside, and started running through the streets naked at night, venturing further from his house (transcript, page 18; G13, pages 99-100). The evidence before the Tribunal suggests that this pattern of behaviour continued into his adulthood, and the Applicant became bolder with respect to exposing himself in public, as shown by his nine offences for indecent dealings where he exposed himself in front of children (in 2007, and 2012), and two offences for indecent acts in public (in 2009) where he exposed himself in front of adults in public places.
At the Tribunal hearing, the Applicant submitted that, through undertaking psychological counselling in prison, he had gained insights into his offending, which he believed was linked to his childhood sexual abuse. The Applicant stated (transcript, page 18):
Yes, well, the insight came when I was in Bunbury when I had the breakdown as well at the same – and I had seen a psychologist and he was helping me with going back to my past and past abuse and the feelings that I had when I was abused and we were chatting away and I was, sort of – I was listening, but I wasn’t listening to him, because the fact is – like I said, I was still trying – I still couldn’t link my past of being abused with my offending. To me, running around naked and public, as I did from eight years old – because that’s when I started doing it, what was I trying to achieve? What was the goal? What was I looking for?
Well, eventually, when, like I said, through psychology, I found out that when I was abused as a child, to start with, I was abused by an older man and I was touched and fondled and I froze. And then later on, I was abused by an older boy and that went on for a few years, but the abuse became normalised and it was attention that I wasn’t getting from my parents, either of them. Both of my parents worked fulltime. My dad worked double shifts, triple shifts – my stepfather, that is – and my mum worked fulltime all her life and they were never there and when they were, they were there for each other and I was missing out on a lot of attention that I needed and wanted, but I was getting it in a sexual way from an older boy.
Then when that slowed down, for some unknown reason, my brain went “Okay. I’m not getting the attention that I want. I get attention when I’m naked. I will take my clothes off and run around the block,” but I didn’t understand that as a child, obviously. I just started doing it for no reason. I mean, an eight year old running around the streets and a 10 year old and a 12 year old. But what it was was I was trying to get attention [sic]. I was trying to get the attention that I knew and that was sexual attention from someone and being touched. But I didn’t link that until I saw the psychologist and we were – like I said, we were talking and then bang, it was like a light switch and I went “Ah”, I said “I’ve got it. Now I understand what I was looking for.”
But that now insight has helped me understand that I can get my needs met in a socially acceptable way with knowing now that I am homosexual and open homosexual and that I can find – and get my needs met through a relationship of that way and that manner and get a proper relationship.
In his evidence to the Tribunal, the Applicant estimated that he had undertaken approximately 30 counselling sessions during his current term of imprisonment with approximately ten different psychologists (transcript, page 20). It is to the Applicant’s credit that he has undertaken counselling, and that he has been able to reflect on his offending in order to achieve some insight into the reasons why he offended. He has also expressed remorse for his early offence of touching a young child’s penis through his bedroom window (Exhibit A1, paragraph [10]). The Applicant also stated (Exhibit A1, paragraph [14]):
I have made a lot of mistakes, bad decisions and my offending behaviour is not acceptable in any community. My own abuse as a child is no excuse. I did what I did and alone am responsible for my own actions. I do not believe that the punishment I have received was just or fair. Seven years in prison, no parole, no reintegration, no home leave and then deportation away from my home and family.
Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of re-offending. However, the Tribunal is concerned that the Applicant continues to deny certain aspects of his offending. For example, with respect to his offending against the 15 year old victim, the Applicant stated that, “I did not procure [victim’s name omitted] he procured me.” (Exhibit A1, paragraph [8]), a position which he continued to maintain at the Tribunal hearing (transcript, page 41). Attributing some responsibility for his offending to the 15 year old victim displays a lack of insight into his offending, which is concerning to the Tribunal, and may contribute to the Applicant’s likelihood of re-offending.
The Applicant also denied masturbating in front of children, and denied calling out to any child to come toward him (Exhibit A1, paragraphs [3] and [5]). However, for example, the indictments for the seven indecent dealing offences which the Applicant was convicted of on 16 January 2007 specifically stated that the Applicant “masturbated in full view” of the children, and these charges were read out by the Clerk of Arraigns in Court, with the Applicant pleading guilty to each of them (Exhibit R4, Annexure 2, pages 2-6). The Applicant’s denial of the masturbating was not made to the Court by the Applicant prior to his sentencing, and it appears to be a new version of events put forward for the benefit of the Tribunal in order to minimise the Applicant’s offending. The Tribunal does not accept these explanations as credible, and to accept them would require the Tribunal to go behind the findings of, and the convictions imposed by, the Court.
The Applicant’s minimising of his offending behaviour also raises some doubts in the mind of the Tribunal as to any gains that he may have made in the intensive treatment programs he undertook in prison. These intensive treatment programs undertaken by the Applicant were the Pathways Program (substance abuse and offending), which the Applicant completed on 14 July 2014; and the Intensive Sex Offender Treatment Program (SOTP), which the Applicant completed on 26 October 2015.
The “Summary and Recommendations” section of the Pathways Program Completion Report (Pathways Report), the program facilitators state (Exhibit R4, Annexure 4, page 166), stated:
Mr Stacey now appears to have accepted responsibility for his offending behaviour and he had gained some insight into the repercussions of his actions by conceding that engaging with a minor in sexual activity was highly inappropriate and he was able to acknowledge that his victim could not have had the mental capacity to make an informed decision regarding a sexual act. However, he still appears to struggle when understanding his motivations and coming to terms with his behaviour. His continued anxiety, guilt and depression may be evidence of unresolved trauma and impaired thought processes.
Mr Stacey has previously demonstrated a willingness to engage with programs and this is evident in him receiving satisfactory completion reports. However, evident by his re-offending, Mr Stacey appears to struggle in maintaining his gains within the community. The facilitators noted that Mr Stacey is currently booked to undertake the Sex Offenders Treatment Program in 2015 and recommends that on-going one-on-one counselling be made available to Stacey for a substantial period prior to his release with a hope that he may address unresolved trauma and impaired thought processes.
It does appear to the Tribunal that, as foreshadowed by the sentencing Judge (see paragraph [69] above), when admitting that the victim did not have the mental capacity to make an informed decision, the Applicant may have been telling facilitators what he thought they wanted to hear. The Tribunal makes this comment in light of the Applicant’s attempt to shift some of the blame for the offending onto his victim by stating at the Tribunal hearing that the victim procured the Applicant to engage in sexual activity, which is at odds with the insights he expressed to the program facilitators above.
Unfortunately, whilst the Pathways Report indicates that the Applicant made some gains and was able to develop a relapse and recidivism prevention plan, there is very minimal information with respect to whether the Applicant’s treatment needs with respect to alcohol abuse were met as a result of the completion of this program. It is evident, however that the facilitators regarded the Applicant as requiring further treatment given their recommendation that he undertake the SOTP and that he should undertake ongoing one-on-one counselling for a substantial period prior to release.
The SOTP Program Completion Report (SOTP Report) (Exhibit R4, Annexure 4,
pages 152-161) noted that prior to the commencement of the SOTP, the Applicant was assessed as follows (page 153):
Mr Stacey received a total score which places him in the HIGH Risk category for being charged or convicted of another sexual offence. Compared to other adult male sex offenders, Mr Stacey’s score is in the 97.2th percentile. Taking into account that about 2.5% of sex offenders shared the same score as Mr Stacey, the percentile means that roughly 96% of offenders scored lower than Mr Stacey, and 1.5% scored higher. Offenders from routine correctional samples with the same score as Mr Stacey have been found to sexually re-offend at a rate of 27.2% in five years.
The summary and recommendations section of the SOTP Report notes that the Applicant was deemed to have made some treatment gains, however, “continued rehearsal of new skills will be required in order for these skills to be generalised and for lasting change to be affected.” The Report recommended that the Applicant needed further support and counselling. The Report also recommended that this support could be provided to the Applicant during a period of Parole, and suggested a number of conditions to be applied to the Applicant if he were released to a period of Parole. These included abiding by any victim mediation agreements in place, adhering to all ANCOR (Australian National Child Offender Register) requirements, not to have unsupervised contact with persons under the age of 16 years, ongoing psychological counselling/programs, mental health treatment as deemed appropriate by a psychiatrist, and sharing his self-management plan with his community corrections officer so the Applicant stress and coping issues could be monitored. In the Tribunal’s assessment, the reference to the Applicant only making some gains, together with the recommended imposition of these conditions, indicated that the Applicant still had unmet treatment needs and that further treatment interventions were required to reduce the likelihood of future sexual offending.
The Applicant also stated at the Tribunal hearing that he completed a non-intensive, voluntary program whilst in prison called Reach for Life, where victims of crime share the impact of the criminal offending against them with participants (transcript, page 19; Exhibit R1, G16, page 109). The Applicant completed this program in March 2016 (Exhibit R1, G23, page 191). It is to the Applicant’s credit that he completed this program, however there is no completion report or other objective measure of any gains he made as a result of completing this program due to its voluntary nature. Additionally, even if it was recorded that the Applicant gained insights from completing this program, they would be called into question by the Applicant’s attempt to apportion some of the blame for his offending on his 15 year old victim at the Tribunal hearing.
The Applicant was considered for parole by the Prisoners’ Review Board (PRB) on
2 May 2017. The PRB denied the Applicant’s release on parole, citing the following reasons (Exhibit R4, Annexure 4, pages 8-9):
A criminal history which includes similar sexual offending which is of a random nature against women, adolescent boys and young children.
The Board notes that you have been diagnosed with mental health issues and you provide no mental health plan.
The Board notes that you have completed your assessed programs with reported gains. However it is also noted that you completed programs during a previous period of community supervision following a conviction for similar offences and you have continued to re-offend in a similar manner. The Board is not confident that you would not re-offend when released and note that you are assessed as a very high risk of re-offending (Psychological Report and Psychiatric Report dated 2012).
These reasons indicate that despite having completed the Pathways Program and the SOTP, the PRB was of the view that the Applicant posed an unacceptable risk to the safety of the community (see s 5A(a) and s 5B of the Sentence Administration Act 2003 (WA)) if he were to be released on parole. The Applicant sought a review of the PRB’s decision, which was denied on 9 June 2017 (Exhibit R4, Annexure 4, page 8).
On 1 March 2019, the PRB imposed a two year post-sentence supervision order (PSSO) on the Applicant. It is evident from the following reasons given by the PRB that the PRB considered the Applicant to have unmet treatment needs in the area of child sexual offending and that there was a likelihood of the Applicant re-offending in the future (Exhibit R4, Annexure 4, page 8):
An extensive criminal history including sexual offending against children which suggests a high risk of re-offending.
Your unmet treatment need (sexual offending against children) as evidenced by the nature of your current offences, your criminal history and as assessed by Corrective Services. The Board is of the opinion that a period of community supervision will enable further work to be undertaken by Corrective Services to address your outstanding treatment needs and reduce the risk of you committing a serious sexual offence against children and the risk that poses to the safety of the community.
However, on the other hand, the imposition of the PSSO means that, if the Applicant were released into the Australian community upon the expiry of his prison term, he would be subject to a two year period of close supervision in the community under conditions that may assist in his reintegration, and which may reduce the likelihood of his re-offending. Conversely, the conditions imposed reflect the PRB’s assessment that the Applicant was, as at 1 March 2019, likely to re-offend, and that conditions were required to reduce that likelihood, including conditions regarding alcohol. The conditions imposed by the PRB for the term of the PSSO were as follows (Exhibit R4, Annexure 4, page 8):
Attend random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.
Not to consume alcohol.
Not to enter licensed premises except cafes, restaurants and sporting venues or grocery stores which may have a liquor license, but no purchase of liquor permitted at any venue.
To advise your Community Corrections Officer of your residential address and not to change that address without the prior approval of the Community Corrections Officer.
To have no direct or indirect contact with the victims.
To have no unsupervised contact with children under 16 years of age.
To submit to random breath testing as required by Police.
The Tribunal further notes that should the Applicant be released into the Australian community, he will be subject to SOMS reporting requirements and conditions. Although being subject to reporting requirements can act as a protective factor to reduce the likelihood of re-offending, the Tribunal notes that after the Applicant was initially registered as a sex offender in 2007, he subsequently committed further child sexual offences.
The Applicant has the support of his sister, Ms A, who can offer him accommodation and emotional support, and who is aware of his offending (transcript, page 46-47).
Ms A is also a Christian who may be able to provide some spiritual guidance given the Applicant’s evidence that he has recently found God (transcript, pages 24 and 45). This support may be a protective factor for the Applicant if he is released into the Australian community.
The Applicant also gave evidence at the Tribunal hearing that being in prison has changed him, and that his outlook on life has changed. He stated that, if released into the community, he would not be returning to the same environment (including an unhappy heterosexual marriage when he was in fact homosexual), which was one of the reasons why he believed he re-offended after completing the community based SOTPs (transcript, pages 21, 22-23). The Applicant also gave evidence at the Tribunal hearing that these programs focussed on avoidance, and did not focus on the reasons why a person offended (transcript, page 21), whereas the SOTP he completed in prison did focus on the reasons behind the offending, hence having more benefit to him. The Applicant is currently at the end of a seven year term of imprisonment, which may, as he suggests, have had a rehabilitative and deterrent impact on him. However, whether this is the case remains to be tested in the community.
Based on the evidence before it, the Tribunal finds that there nevertheless remains a likelihood that the Applicant may re-offend. This includes his long history of child sexual offending, re-offending after completing two community-based SOTPs, re-offending whilst being a registered sex offender and while being on bail for the offending against the
15 year old victim, and his formal assessment towards the start of his prison sentence in 2013 as being in the High Risk category for sexual offending. Despite completing and making some gains in the Pathways Program and the SOTP, the comments of the program facilitators indicate that the Applicant still had outstanding treatment needs in the areas of alcohol abuse and child sexual offending. The PRB’s reasons for the denial of the Applicant’s parole in 2017, and imposition of a PSSO in 2019 also indicated their assessment that the Applicant was likely to re-offend. The Tribunal would like to clarify that, in referring to the PRB’s reasons, the Tribunal has not simply deferred to the PRB’s opinion without itself considering the merits of the Applicant’s situation. The Tribunal has undertaken its own independent consideration of the Applicant’s likelihood of re-offending, based on the merits of the Applicant’s application before the Tribunal and all of the submissions and evidence before the Tribunal.
Additionally, the lack of insight displayed by the Applicant in his attempts to minimise his offending and apportion responsibility to his 15 year old victim, despite having completed a voluntary course (Reach for Life) on victim empathy during his current term of imprisonment also raises concerns about his rehabilitation and the future likelihood of him re-offending if he were released into the Australian community. It is also of concern to the Tribunal that the Applicant has had contact with the 15 year old victim (when he was an adult) whilst he has been in prison, with the victim first coming to visit him in 2016 (transcript, pages 16-17). In fact, prison visit records show the victim visiting the Applicant as early as 15 March 2015 (Exhibit R1, G21, page 183).
Further, the principle set out in paragraph 6.3(4) of Direction no. 79 is relevant:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant re-offending should he be given a further chance to be released back into the Australian community. That likelihood may now be lower than the “high risk of sexual re-offending” which was determined by formal assessment at the commencement of the Applicant’s current term of imprisonment. However, there is no objective psychological assessment as to whether, and if so, how much, that likelihood has been reduced. Based on its consideration of the evidence before it, the Tribunal finds that the risk is likely to be high to moderate. With regard to paragraph 6.3(4) of Direction no. 79, the Tribunal finds that the circumstances of the Applicant’s convictions (child sexual offences) and the serious nature of the harm that can result to victims of this type of offending, mean that even a moderate or low likelihood of re-offending in the future is unacceptable. On balance, the Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction no. 79) [up to here]
Paragraph 13.2 of Direction no. 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
Paragraph 13.2(4) of Direction no. 79 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has a 4 year old grandson. In a submission to the Department made in approximately July 2016 (Exhibit R1, G18, page 132), the Applicant stated that he had not had contact with his grandson, nor was he likely to, and that his son had changed his last name so as to not be linked to the Applicant because he was listed on the sex offenders’ website. However, at the hearing, the Applicant stated that he had recently talked with his son who was willing to facilitate supervised access to his grandson in the future (transcript, page 12). There is, however, no other corroborating evidence before the Tribunal about this future contact, such as a statement from the child’s parents, who were also not present at the hearing. This suggests to the Tribunal that there is some doubt as to whether the Applicant will have contact with his grandson in the future.
As the Applicant does not have a relationship with the child, and as the relationship is non-parental, less weight can be given to this factor (Direction no. 79, paragraph 13.2(4)(a)).
The child is very young (4 years of age), so there are another 14 years until the child turns 18 (Direction no. 79, paragraph 13.2(4)(b)). The Tribunal considers that the Applicant would not, given his history of child sexual offences and registration as a sex offender, be a positive role model for his grandchild.
Being associated with a sex offender may have a negative impact on the child in the future (Direction no. 79, paragraph 13.2(4)(c)) as was contemplated by the child’s parents changing their last name to avoid any negative association with the Applicant. Additionally, as a registered sex offender, and as part of the conditions of his PSSO, he cannot have unsupervised access to children.
As the child does not have a relationship with the Applicant, the child is likely to be unaffected by any separation from the Applicant if he is returned to the United Kingdom (Direction no. 79, paragraph 13.2(4)(d)).
The child has parents who are fulfilling a parenting role (Direction no. 79, paragraph 13.2(4)(d)). There are no known views of the child, although given the child’s age, he would be too young to express them (Direction no. 79, paragraph 13.2(4)(f)).
As the Applicant has not had contact with the child, Direction no. 79, paragraph 13.2(4)(g) is not relevant as he has not abused or neglected the child.
There is no evidence that the child has suffered or experienced any emotional trauma as a result of the non-citizen’s conduct, but should the child develop a relationship with his grandfather and later learn of his grandfather’s conduct, it may cause emotional distress (Direction no. 79, paragraph 13.2(4)(h)).
On balance, the Tribunal finds that revocation of the cancellation decision would not be in the best interests of the Applicant’s grandchild, and as noted above, there is some doubt in the mind of the Tribunal as to whether the Applicant will be permitted to have contact with his grandchild in the future in any event.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction no. 79)
Paragraph 13.3(1) of Direction no. 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(2) of Direction no. 79 sets out the following principle:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
Further, paragraph 6.3(3) of Direction no. 79 relevantly states:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 at [133]-[146] (Le), and subsequently in Nathanson and Minister for Home Affairs [2019] AATA 642 at [130]-[145] (Nathanson).
Although the decisions discussed by Member Burford in Le and Nathanson, discussed below, concerned Direction no. 65, they are equally applicable to Direction no. 79. This is because there was no change to the wording of the paragraph concerning the expectations of the Australian community in Part A, B or C when Direction no. 65 was updated to become Direction no. 79, which commenced on 28 February 2019.
In Nathanson, Member Burford stated as follows:
130.In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
131.In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
132.The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296 states as follows:
[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
[65] … In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
133.Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17] also applied YNQY.
Member Burford further explained, at [134]-[136]:
134. The Tribunal notes that both Direction no. 79 and the relevant authorities on the application of Ministerial Directions to decisions under s 501 of the Act make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 79 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (paragraph 8(3) of Direction no. 79). While Direction no. 79 states that a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.
135. The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 79 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement in the principle expressed with respect to ‘serious crimes’ in paragraphs 6.3(2) and more generally in 13.3(1) of Direction no. 79. Applying Uelese, paragraph 13.3(1) of Direction no. 79 directs that the Tribunal should have due regard to the Government’s views in this respect.
136. In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.
(Emphasis in original.)
Member Burford, at [138]-[145], further analysed how the Tribunal has applied the decision of Mortimer J in YNQY as follows:
138. The Tribunal has considered the effect of Mortimer J’s judgment in a number of decisions. In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted.
139. Alternatively, the Tribunal has considered that her Honour’s comments, in particular the operation of the ‘kind of deeming provision’ (YNQY at [76]) above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where ‘the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa’.
140. In the case of Margach and Minister for Home Affairs [2019] AATA 353 (published 5 March 2019) Deputy President Forgie, having quoted [76] and [77] of Mortimer J’s judgment in YNQY, stated:
[86]I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.
141. Deputy President Forgie goes on to state (at [86]):
Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1)…
142. Further, she goes on to highlight that in applying the principles the Tribunal must have regard to the evidence (at [86]):
Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.
143. Member Eteuati, in Doan and Minister for Home Affairs [2019] AATA 169 at [153] to [154], stated the principles which emerge from the case law as follows:
153.… First, the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of the community.
154.Secondly, the government’s views in relation to community expectations are to be found in Direction 65 itself. It is open to the Minister to make a statement of the government’s views as to the expectations of the Australian community as it has in direction 65 for the Tribunal to act on that statement.
144. Member Eteuati goes on to note, at [155]:
In order to ascertain the government’s views on community expectations one must consider the direction closely.
145. The Tribunal broadly agrees with this approach. The Tribunal notes that with respect to determining whether ‘the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa’ (the third sentence of paragraph 13.3(1) of Direction 79) close consideration of the direction indicates that where a non-citizen has committed a ‘serious crime’ the expectation is that their visa will be cancelled. This is the import of paragraph 6.3(2) of Direction no. 79 which was cited in the passage of Uelese to which Mortimer J was referring in YNQY. Further, Direction no. 79 provides that particular crimes or those committed against particular victims will be regarded as ‘serious’ or are to be ‘viewed very seriously’. In circumstances where the relevant non-citizen has committed a ‘serious crime’ the government’s view on the expectation of the community has been expressed to be that they expect the non-citizen’s visa to be cancelled.
146. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
(Footnotes omitted.)
Two recent decisions were handed down by the Federal Court which adopted slightly different approaches to the interpretation of this primary consideration. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR).
In DKXY Griffiths J stated that it was not “inevitable” that the primary consideration of the expectations of the Australian community would always weigh against revocation (at [32]). His Honour explained, at [31], that:
Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction…
(Emphasis in original.)
In summary, Griffith J was of the view that: “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant’s circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community’s expectations would weigh against revocation.
On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach, which appears to be more consistent with Mortimer J’s approach in YNQY:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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 must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
Although Perry J refers to the statement of community expectations in the Direction to be a “norm” to be applied in “most cases”, it is not clear, however, when circumstances may justify departure from that norm.
However, regardless of whether the Tribunal takes a strict interpretation of the expectations of the Australian community such as was taken by Perry J in FYBR or the broader approach of Griffith J in DKXY, the Tribunal finds that the Australian community would expect that the cancellation of the Applicant’s Visa should not be revoked.
More specifically, the Applicant has committed child sexual offences, which are serious offences. The seriousness of the Applicant’s offending was discussed in detail above in the section on the first primary consideration. The principle in 6.3(3) of Direction no. 79 states that the Australian community would expect that the Applicant should be denied the privilege of staying in Australia because he has committed serious crimes against children who are vulnerable members of the community.
Paragraph 13.3(1) of Direction no. 79 states the government’s view that the Australian community expects non-citizens to obey Australian laws whilst in Australia. Although Australia may afford a higher level of tolerance to the Applicant because he has lived in Australia from when he was approximately 15 years of age (paragraph 6.3(5) of Direction no. 79), that tolerance would necessarily be countered by the Applicant’s lengthy criminal history involving numerous sexual offences against children. In the circumstances of the Applicant’s offending, the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would weigh against the revocation of the cancellation decision.
In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant’s offending and the unacceptable risk of harm if he were to re-offend (particularly against a child), as well as the best interests of the Applicant’s grandson. In determining weight, the Tribunal has balanced the other considerations which weigh in the Applicant’s favour, and which are discussed below, including the strength, nature and duration of the Applicant’s ties to Australia and the hardship the Applicant would face if he was returned to the United Kingdom.
Nevertheless the Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant’s Visa should not be revoked. The Tribunal finds that this consideration weighs strongly against the revocation of the decision to cancel the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the principles section of Direction no. 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The duration of time that the Applicant has resided in Australia is significant, being some 40 years. As noted above, the Applicant is now 56 years of age, having arrived in Australia when he was 15 years of age. The Australian community is likely to have a higher level of tolerance for the Applicant to remain in Australia, given that he has lived in Australia from such a young age.
The Applicant regards himself as being Australian, and has two adult sons (aged 22 and 23 years) who were born in, and reside in Australia, as well as a 4 year old Australian grandson, whom the Applicant has not met and whose interests were discussed in the section on the best interests of the child above (Exhibit A1, paragraphs [1] and [16]). One of the Applicant’s sons has high functioning autism and in a letter received by the Department on 4 January 2017 (Exhibit R1, G24, page 195) stated that he would miss his father terribly if his father were to be deported. The Tribunal finds that the Applicant’s autistic son would, in particular, experience emotional hardship if he were removed from Australia.
The Applicant began offending approximately two years after arriving in Australia, having committed the indecent assault offence against a young male child by reaching into his bedroom window and touching his penis as a 17 year old. The Applicant was sentenced for this and several other offences on 22 May 1980. However, apart from a conviction for receiving in August 1983, the Applicant was not convicted of any further offences until
16 January 2007 when he was convicted of seven counts of indecent dealing with a child under 13 years (Exhibit R4, Annexure 1, pages 9-10).
The Applicant has made some positive contributions to the community by working and paying taxes, most recently as a sales representative. He also gave evidence at the Tribunal hearing that over the years he had undertaken charity work and assisting with his children’s sporting events when they were growing up (transcript, page 28).
The Applicant has three sisters. He appears to have a close relationship with his sister, Ms A, who gave evidence in support of the Applicant at the Tribunal hearing, and with whom the Applicant will reside if he is permitted to remain in Australia. A statement from Ms A indicated she was afraid of flying, and so would not be able to visit the Applicant if he returned to the United Kingdom (Exhibit R1, G26, page 199). The Tribunal finds that Ms A is likely to experience some emotional distress if the Applicant is removed from Australia.
The Applicant also has another sister, who previously provided a letter of support for the Applicant saying that she would be “heartbroken” if he were removed (Exhibit R1, G25, pages 196-197). The Applicant gave evidence at the Tribunal hearing that he was close to this sister (transcript, page 24), although she did not attend the hearing. The Applicant also gave evidence at the Tribunal hearing that he has a third sister who visited him in prison on a couple of occasions, but who is suffering from alcoholism and is currently homeless (transcript, page 25; Exhibit R1, G17, page 117). There is insufficient evidence to determine the impact of the continued cancellation of the Applicant’s Visa on these two sisters.
The Tribunal finds that the Applicant’s links to the Australian community are strong, particularly due to the length of time he has resided in Australia, and his close relationship with his autistic son, and two of his sisters. The Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant’s Visa.
Impact on Australian business interests
It is also not relevant to consider whether a decision not to revoke the cancellation of the Applicant’s Visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79). The Applicant is not involved in the delivery of any major projects, or the delivery of an important service in Australia.
Impact on victims
There is no evidence before the Tribunal, or information available, about the impact of a decision not to revoke the mandatory cancellation of the Applicant’s Visa on the victims of the Applicant’s offending or the family members of those victims (paragraph 14.4(1) of Direction no. 79).
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is a 56 year old man who is likely to experience some difficulties and hardship resettling in the United Kingdom, having resided in Australia for over
40 years.
The materials before the Tribunal show that the Applicant has suffered from asthma, hypertension and high cholesterol. They also refer to the Applicant having mental health issues in the past including anxiety, depression and PTSD. When asked about his mental health at the Tribunal hearing, the Applicant stated it was (transcript, pages 22-23):
A lot better, thank you. As I've said, with being in prison, it has opened my eyes to why I did what I did. So that was the - the issue of coping. And I don't need - I don't need drugs anymore to - to get by. I mean, I've done seven years without alcohol. I've done seven years without drugs. It is available in prison but I have chose not to use it. I've chose not to take it [sic]. And my - my whole outlook on life has changed. So my mental state is - is actually quite - quite well at the moment. And so is my stress levels and - the stress was the main thing. My stress is - is the killer. That's what starts everything off…
However, the Tribunal considers that the health system in the United Kingdom would be comparable to Australia, and that the Applicant would be able to obtain suitable treatment for these physical conditions if he were returned there, and for any mental health issues if they were to resurface.
The Applicant is likely to experience some emotional hardship because if he is returned, he is unlikely to see his sister Ms A, who is afraid to fly. He also doubts whether he would be able to see his sons due to the cost of travelling to the United Kingdom, or his grandson whose mother would not let him travel to see the Applicant in any event (transcript, page 58). However, his mother and step-father currently reside in the United Kingdom, and the Applicant gave evidence that he would stay with them and try to look for employment if he were returned there (transcript, page 27).
The United Kingdom shares a common heritage, and has a similar culture to Australia, and so the Applicant would not face any language or cultural barriers if he were to return to the United Kingdom. There is no evidence before the Tribunal that the Applicant would not have the same access to social and economic support as other citizens of the United Kingdom.
On balance, the Tribunal finds that the Applicant is likely to experience some hardship in re-establishing himself in the United Kingdom. This hardship is, however, not insurmountable, but nevertheless does weigh slightly in favour of the revocation of the decision to cancel his Visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 79), and the expectations of the Australian community (paragraph 13.3 of Direction no. 79) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (that is, affirming the Reviewable Decision). The Tribunal also found that, on balance the revocation of the cancellation decision would not be in the best interests of the Applicant’s grandson.
On balance, the Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations that are in favour of the revocation of the decision to cancel the Applicant’s Visa, namely strength, nature and duration of ties, and the extent of the impediments if removed which weigh in favour of revocation of the cancellation decision.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
27 February 2019not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 147 (one hundred and forty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
..........................[sgd]............................................
Associate
Dated: 22 May 2019
Date of hearing:
13 May 2019
Solicitors for the Applicant:
Counsel for the Respondent:
Self-represented
Mr Ashley Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers
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