Subasinghe and Minister for Home Affairs (Migration) - [2019] AATA 751

Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751 (24 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0524
GENERAL DIVISION  )
Re: Don Subasinghe
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM
TRIBUNAL:  Deputy President Boyle
DATE OF CORRIGENDUM:            1 May 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision at paragraph [27] in this application from ‘s 501(1)’ to ‘s 501CA(4)’.
...................................................................
Deputy President

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0524
GENERAL DIVISION  )
Re: Don Subasinghe
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM
TRIBUNAL:  Deputy President Boyle
DATE OF CORRIGENDUM:            26 April 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application at paragraph [113] as follows: in the fifth line, delete the word ‘not’ where it appears for the second time.

...................................................................
Deputy President

Division:GENERAL DIVISION
File Number: 2019/0524
Re:Don Subasinghe
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:24 April 2019
Place:Perth

The Tribunal affirms the decision by the delegate of the Respondent dated
21 January 2019 made under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the mandatory cancellation of the Applicant’s Class BN, Subclass 136 Skilled Independent visa under s 501(3A) of the Migration Act 1958 (Cth).
..........[sgd]..............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – nature of harm – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501(1), 501(3A), 501(6), 501(7), 501(7)(c), 501(7)(d), 501(7A), 501CA(4), 501CA(4)(b)(ii)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
CCYW and Minister for Home Affairs [2019] AATA 241
CZCV and Minister for Home Affairs [2019] AATA 91
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
HZCP v Minister for Immigrationand Border Protection (2018) FCA 1803
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
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Nathanson and Minister for Home Affairs [2019] AATA 642
Nigro v Secretary to the Department of Justice (2013) 41 VR 359; 304 ALR 535;
[2013] VSCA 213
Nguyen and Minister for Home Affairs [2018] AATA 3726
Subasinghe v Western Australia [2016] WASCA 217
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Toki and Minister for Home Affairs [2019] AATA 742
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296;
[2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 20 December 2018) – paras 2, 6.1, 6.1(2), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13.1, 13.1(2)(a), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.2(1)(a), 13.2, 13.3, 13.3(1), 14, 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a), 14.2(1)(b), 14.3, 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
24 April 2019
THE APPLICATION

This is an application for the review of the decision by the delegate of the Respondent dated 21 January 2019 made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to refuse to revoke the mandatory cancellation of the Applicant’s Class BN, Subclass 136 Skilled Independent visa (the visa) under s 501(3A) of the Act (R4, G34).
The application for review is made in accordance with s 500(1)(ba) of the Act, which allows for an application to be made to the Administrative Appeals Tribunal for a review of a decision made under s 501CA(4) of the Act.
The visa was cancelled under s 501(3A) of the Act on 31 August 2016 following the Applicant’s conviction on 30 October 2013 of seven counts of sexual penetration without consent committed in January and February 2011.
THE ISSUE
On six of the seven counts of sexual penetration the Applicant was sentenced to a term of imprisonment of one year and six months and on one count to one year and eight months (R4, G35). Taking into account concurrent and cumulative sentences imposed by the court, the total period of imprisonment to be served was four years and eight months. The Applicant has a substantial criminal record as defined by s 501(7) of the Act by reason of his being sentenced to a term or terms of imprisonment of 12 months or more
(ss 501(7)(c) and (d) of the Act). By operation of s 501(6) of the Act the Applicant does not pass the character test as he has a substantial criminal record. The Tribunal does not understand the Applicant to dispute that he does not pass the character test. The Tribunal finds that the Applicant does not pass the character test.
Therefore, the only issue for determination by the Tribunal is whether there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.
BACKGROUND
The Applicant was born in 1969 at Kandi, Ceylon and is a Sri Lankan National. He married his wife in Colombo, Sri Lanka in 1995. Their son was born in Sri Lanka in February 2000.
He first arrived in Australia in Sydney with his wife and their son on 7 February 2001 (R4, G57). He held a student visa.
The Applicant left Australia on 1 June 2003 (R4, G57) and returned to Sri Lanka because his father was ill. He completed a Bachelor of Business in Marketing and Management in 2005 at Edith Cowan University (R4, G82/737). The final units towards this degree were undertaken at the university’s campus in Sri Lanka.
The Applicant was granted the visa on 4 March 2008. He returned to Australia on
15 April 2008 at which time he and his family relocated to Perth. Apart from the period from 25 April 2008 to 27 June 2008, the Applicant has remained in Australia (R4, G57).
The Applicant and his wife have been registered proprietors since 16 August 2010, as joint tenants, of the family home in Thornlie in Western Australia. Up until his imprisonment the Applicant lived with his wife and son in that house. The Applicant’s wife and son are Australian citizens.
The Applicant has a brother born in 1973. He is an Australian citizen and is resident in Australia. The Applicant’s brother is a co-director with the Applicant and the Applicant’s wife in [omitted] Beauty Salon Pty Ltd (the Beauty Salon) and is a co-director with the Applicant in a family export business, Perth Exporters Pty Ltd.
The Applicant’s father, born in 1937, and his mother, born in 1941, are both Sri Lankan nationals and live in Sri Lanka (Applicant’s Supplementary SFIC, para 7).
THE APPLICANT’S CRIMINAL HISTORY
The Applicant has no criminal convictions other than the seven counts of sexual penetration.
THE HEARING AND THE MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 8 April 2019. The Applicant was represented by Mr Greg McIntyre SC and the Respondent was represented by Ms Karen Vernon assisted by Ms Elle Tattersall of Sparke Helmore.
The following witnesses gave evidence at the hearing:
·the Applicant;
·the Applicant’s wife;
·the Applicant’s son;
·Reverend Father Thai Vu, parish priest;
·the Applicant’s brother; and
·the Applicant’s friend.
The following documents were admitted into evidence:
·
Applicant’s Supplementary Statement of Facts, Issues and Contentions dated

3 April 2019 (Applicant’s Supplementary SFIC) (Exhibit A1);
·Applicant’s Statement of Facts, Issues and Contentions dated 8 March 2018 with attached documents (Applicant’s SFIC) (Exhibit A2);
·Letter from Reverend Father Thai Vu dated 20 February 2014 (Exhibit A3);
·Letter from Reverend Father Thai Vu dated 25 April 2011 (Exhibit A4);
·
Respondent’s Supplementary Statement of Facts, Issues and Contentions dated

5 April 2018 (Respondent’s Supplementary SFIC) (Exhibit R1);
·Respondent’s Statement of Facts, Issues and Contentions dated 22 March 2019 with attachments (Respondent’s SFIC) (Exhibit R2);
·documents produced under Summons from the Western Australia Police and the District Court of Western Australia (Exhibit R3); and
·the G-Documents (G1-G87) (Exhibit R4).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the 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) …; 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 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 ...
A ‘substantial criminal record’ is defined by s 501(7) of the 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 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501CA of the 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.
…
(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.)
Ministerial Direction no. 79
Section 499(1) of the 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.
Section 499(2A) of the 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 a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA” (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79).
Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(3) relevantly provides:
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 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 79 sets out principles which must be taken into account by persons making decisions under s 501(1) of the Act, 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.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 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 of Direction 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.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 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 non-citizens 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.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (13(2)(a))

Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a.The nature and seriousness of the non-citizen’s conduct to date; and
b.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 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;
The Applicant has been convicted of seven counts of sexual penetration. He was found guilty by a jury on all charges having pleaded not guilty.
Applying paragraph 13.1.1(1)(a) of Direction 79, these crimes are to be viewed very seriously. The offences all occurred in January and February 2011 in the Beauty Salon operated by the Applicant and his wife. The facts of the Applicant’s offences are set out in the sentencing judge’s remarks, the statements of material facts, the detected incident reports and in the victims’ witness statements produced under summons by the District Court of Western Australia and the WA Police. The salient facts of each offence were also set out in the Supreme Court of Western Australia Court of Appeal judgment in Subasinghe v Western Australia [2016] WASCA 217 as follows:
Complainant 6
19…
20Complainant 6 described feeling the zapping of the IPL machine like a flicking elastic band every few seconds, with the pain lasting a few seconds. She said the IPL treatment moved to the sides or outer lips of her vagina, and reported feeling the same thing. She said she felt the appellant place one or two fingers inside her vagina and onto her clitoris area. She said they were fingers because 'they felt like fingers'. Complainant 6 said that she felt the fingers less than a minute after the appellant commenced IPL treatment on the side of her vagina. She felt movement, a gentle rubbing back and forth, starting at her clitoris and moving down about 5 cm towards the lower half of her body, and then back up (ts 312 – 314).
21When Complainant 6 was asked how long the fingers stayed in that area, she said:
A few minutes. It's hard to say. It – it felt like a long time, but I'm not sure (ts 314).
22Complainant 6 said that she could still feel the IPL machine whilst the fingers were in her clitoris area. She said that the fingers had moved by the end of the treatment (ts 314).
23In cross-examination, Complainant 6 accepted that the appellant needed to handle her to some extent so he could treat along her pubic bone, bikini line and the outer lips of her vagina, but said that in her judgment what he did was too much (ts 321). Complainant 6 rejected the proposition that the appellant did not touch her clitoris, and said that he appeared to be doing it deliberately (ts 322).
24The appellant said he did not remember much about treating Complainant 6 and did not recognise her when he saw her in court (ts 645). He denied touching her clitoris and inside the vaginal lips (ts 646).
Complainant 7 & 8
25…
26Complainant 7 & 8 said that she asked for hair to be removed from the sides of her vagina, leaving a strip of hair just above the vagina (ts 191).
27Counts 7 and 8 related to penetrations which allegedly occurred at Complainant 7 & 8's fifth appointment on 27 January 2011. She said that nothing untoward happened until her fourth appointment on 6 January 2011, when she gave evidence of an uncharged act of the appellant using his fingers to stroke her clitoris when she could not feel the IPL machine being used (ts 195 – 196).
28Complainant 7 & 8 said that, during the treatment on her fifth appointment, she was saying 'ouch' a lot and the appellant said, 'Do you mind if I rub?' She responded 'No, don't rub just press'. She said this because when she had waxing at another salon they would press the area to alleviate the pain. The appellant then began rubbing with his fingers where the IPL machine was, where she could feel the sting. The appellant then placed the palm of his hand on the top of her vagina and clitoris and was rubbing the whole area. The IPL machine was lower down, but Complainant 7 & 8 could not give a distance in centimetres or millimetres. The rubbing with the appellant's palm continued for a couple of minutes (ts 197 – 198). This penetration was the subject of count 7 on the indictment, of which the appellant was convicted.
29Complainant 7 & 8 also gave evidence that the appellant wiped excess gel off with tissues himself, including on the inside of the lips of her vagina (ts 199). This evidence was the subject of count 8 of the indictment, of which the appellant was acquitted.
30In cross-examination, the complainant rejected the proposition that at no stage did the appellant rub or stroke her clitoris (ts 214). She also rejected the suggestion that the appellant did no more than was absolutely necessary for the purposes of what she had paid him (ts 217).
31In his evidence in chief, the appellant denied any excessive touching of Complainant 7 & 8 (ts 647 – 649).
Complainant 12 & 13
32Complainant 12 & 13 said that the appellant told her that, straight after he would put the instrument where the 'cuticle' was, the appellant would apply pressure or rub to make it feel better (ts 370). She said that he began rubbing in small circles with the tips of two fingers where the instrument was on her stomach area. As the treatment started to go down to the vaginal area, it became more painful and she told this to the appellant (ts 371).
33Complainant 12 & 13 said that, when treating the side part of her vagina, the rubbing was in bigger circles and 'from what I could feel it wasn't where the treatment was being done'. She said it moved gradually closer to her inner vagina area until it was right on top of her clitoris (ts 372 – 373). The appellant stopped rubbing in circles and started long strokes from the clitoris down to the inner labia. She estimated this continued for about 30 minutes (ts 373 – 374). This was the subject of count 12 on the indictment.
34Complainant 12 & 13 said that there was a knocking on the door, and the appellant placed the towel over her legs and excused himself. As he went outside, the appellant put his gloves in the bin. She did not see him put the gloves back on when he came back in to resume treatment. When the treatment started again there was more rubbing from her clitoris down to the inner labia. She could not recall how long the rubbing went on for on this second occasion (ts 376 – 377). This was the subject of count 13 on the indictment.
35The appellant asked complainant 12 & 13 to change position to her hands and knees so he could treat her anal area. As she did this, she saw that the appellant was not wearing gloves (ts 378). Complainant 12 & 13 could feel treatment of her anal area and rubbing mainly on the inside of her vagina (ts 379).
36Following the appointment, Complainant 12 & 13 told her partner what had occurred, and then went to make a complaint to police.
37In cross-examination, Complainant 12 & 13 agreed that the appellant had her consent to do what was necessary and reasonable to complete the IPL treatment. She said that there was no reason to touch the clitoris or the inner labia, and rejected the proposition that the appellant did not touch her there. She rejected the proposition that all the appellant did was touch the outer lips of her vagina to reach hair follicles that were there (ts 389 – 390, 392).
38The appellant denied excessively rubbing the inner lips and clitoris of Complainant 12 & 13 (ts 616).
Complainant 14
39…
40Complainant 14 gave evidence of the appellant, on an earlier visit, rubbing where he had treated and explaining that he was doing so to 'distribute the pain'. At this time the IPL machine was being used inside the upper lip of her vagina (ts 418 – 419). This occurred for less than a minute (ts 421), although the complainant said that for a time the appellant seemed to rub in a different area to where he was treating.
41The incident which was the subject of count 14 occurred at her appointment on 29 January 2013. Complainant 14 said that, on this occasion, the appellant was rubbing the inside of the inner lip of her vagina near the vaginal canal entrance, while treating the outer lip of her vagina. He also inserted the tip of his finger inside her vagina and moved it in and out, causing her to orgasm (ts 425 – 426).
42In cross-examination, Complainant 14 accepted that hair grew on the inside of her labia and the appellant had her implicit consent to deal with hair follicles there. She confirmed that her allegation was that the appellant over-stepped the mark and went beyond what was necessary to access and treat all the hair follicles. She said that the treatment did not correspond with the rubbing, and confirmed that the appellant inserted the tip of his finger into her vaginal canal (ts 457 – 459).
43The appellant's evidence-in-chief was that he had treated hair growing on the inside of the outer lips of Complainant 14's vagina, but he denied that he placed the tip of his finger in her vagina (ts 629 – 630).
Complainant 15
44…
45Complainant 15 said that on her first appointment, the appellant explained that rubbing the treated area would decrease the pain, and rubbed only in the area where she felt the pain (ts 473 – 474, 477).
46On her third appointment on 31 January 2011, Complainant 15 told the appellant that 'it was extremely painful', and asked him to adjust the setting on the IPL machine. The appellant adjusted the setting and she could hardly feel any pain (ts 479). As the IPL machine moved along the outer lips of her vagina, the appellant was rubbing with two fingers in a sideways motion on the inside of the lips near the entrance of her vagina. This went on for about three minutes, not just at the entrance of the vagina but around the inside of the lips, near the clitoris (ts 480 – 481).
47Complainant 15 said that she orgasmed, without meaning to, and told the appellant to stop because he was hurting her. The appellant did not respond, and she told him again more firmly. The appellant stopped rubbing, and continued to use the IPL machine for another five minutes or so without rubbing (ts 482).
48In cross-examination, Complainant 15 agreed that she consented to contact with her genital region to the extent that it was reasonably necessary for the IPL treatment. She accepted that this would require some touching of the lips of her vagina with the machine, but not the hand (ts 488 – 489). She rejected the proposition that the appellant never rubbed her vagina or touched her clitoris (ts 497).
49In his evidence-in-chief, the appellant said that he only ever pressed on Complainant 15 with a gloved hand, and never rubbed her vaginal area (ts 623). He recalled Complainant 15 asking him to turn down the settings to the machine, but denied rubbing in the area of her vagina or that she ever told him to stop (ts 626).
Complainant 16
50…
51Complainant 16 said that the appellant started at the very top of her pubic bone area and gradually began moving down to her vagina. He told her that he was about to rub the area to help with the pain. He used a few fingers to rub in very small circles on the pubic area. As the appellant treated the hair on the outside of her vaginal lips, the appellant began rubbing her clitoris in small circles. The rubbing of her clitoris went on for about 10 minutes, which was almost the whole of the time of the rest of the treatment. The appellant stayed rubbing the same area as he was moving around treating different areas (ts 511 – 512).
52In cross-examination, Complainant 16 accepted that she consented to a reasonable degree of touching and manipulation for the purposes of the appellant accessing her hair follicles. She said this would include the labia and edges of the labia but '[d]efinitely not inside them though'. She rejected the proposition that the appellant never rubbed her clitoris or put his fingers inside her vagina (ts 519, 521).
53The appellant said in his evidence-in-chief that he did not remember much about Complainant 16, but denied ever rubbing her clitoris (ts 653 – 655).
The complainant’s ranged in age from 18 to 32 years of age.
In sentencing, the trial judge, having outlined the facts of each of the offences in terms similar to those used by the Court of Appeal as set out above, made the following comments (R4, G36 and R3/9-18):
Each of these acts of sexual penetration were not momentary but prolonged. IPL treatment is, by its very nature, invasive. It entailed, with the consent of each complainant, the touching of the outer lips of the vagina for the purposes of enabling the handpiece to remove hair, wherever that hair may have been. To that end, each victim trusted you to touch her hair only where it was necessary for the appropriate IPL treatment, and nothing more.
In each case the sexual penetration for which you have been convicted was well outside and not part of the appropriate parameters for that treatment. I’m satisfied that you took the opportunity with respect to each victim to sexually penetrate her in the hope, no doubt, that she may not have been able to distinguish between what might be part of the inevitable touching and, on the other hand, deliberate sexual penetration.
There are five victim impact statements … Each of these women describe the effects of being abused in circumstances where they were vulnerable and trusted you to touch them in the pubic region only during the course of the proper administration of the IPL treatment.
In each case, the abuse by you of that trust by taking sexual advantage of them, as you did, has resulted in the impact which each of them described. In my view, the effect on each of them, which they have detailed, is what one would reasonably expect.
…
It is true that you do not show remorse for your victims. As I say, you pleaded not guilty to the charges and you maintain your innocence.
As a consequence any lack of remorse is, in my view, a neutral factor. As to sentencing you, the primary principles are to punish you for the offences which you have committed and impose sentences which reflect both personal and general deterrence.
…
These victims were vulnerable in undergoing this treatment in respect to which they trusted you to perform the treatment appropriately knowing full well as they must have that there was inevitably going to be a need for you to touch their genital area in properly administering the treatment.
The very nature of the treatment, however, allowed you to sexually abuse them in the manner you did. Whilst, as I say, you’ve not previously been convicted of any offence personal circumstances in cases of sexual offending whilst relevant types may not carry the same weight as they may with other types of offending.
General deterrence also assumes significant importance in this case. That is to make clear to the community that those who offer treatment of this nature to clients need to be aware that if they abuse the trust reposed in them for their own sexual gratification as you have, and I find you have, they will be appropriately punished.
Those who administer treatments of this nature must surely be aware that the client trusts them to touch them only to the extent necessary to appropriately perform the treatment and that any temptation to exceed the bounds of that treatment by sexual touching or penetration of the client is a gross breach of trust and should be and will be appropriately dealt with at law. Each of these victims were violated in a sexual way by you. You told these victims that in order to relieve the momentary pain from the IPL you would rub their skin.
…
Consequently, in my view and I find, there was a degree of deception on your part which I am satisfied was designed to create an apprehension in these clients that the touching to areas you knew would cause concern was necessary.
You proceeded to sexually penetrate these victims in the hope, in my view, that each of them may not have been entirely sure whether the touching and penetration was at least in part necessary and appropriate but it was not.
You have maintained … that you had no sexual interest in any of the victims. I reject that contention. I am satisfied that you abused the trust reposed in you by each victim and penetrated each of them for your own sexual gratification.
…
Further, it is true that there was no forceful penetration but in each case the penetration by you between the lips of the vagina of each victim and touching their clitoris was prolonged. In addition, the violation constituted by the breach of trust and the deception to which I have referred elevated the seriousness of the offending.
Paragraph 13.1.1(1)(d) of Direction 79 requires regard to be had to the sentence imposed as a sign of the seriousness of the offending. In this case seven sentences of imprisonment were imposed, the longest one year and eight months and the rest one year and six months. Taking into account the sentences to be served concurrently and those to be served cumulatively, the total period of imprisonment to be served was four years and eight months with eligibility for parole after two years and eight months (R4, G35). The length of the sentences and the total term of imprisonment imposed indicate that the sentencing judge considered the offences to be serious.

The Respondent also refers to the requirement on the Tribunal under paragraph 13.1.1(1)(e) of Direction 79 to have regard to the frequency of the offending and any trend in increasing seriousness. In that regard the Respondent submits that the offending conduct occurred within a three week period in 2011 and that there are features of the Applicant’s offending that suggest a pattern of him becoming increasingly emboldened in his conduct towards each victim, such that the Tribunal is entitled to consider that there was a trend of increasing seriousness with each offence. In support of that submission the Respondent points to the Applicant (R1/9):
44.1.extending the areas and manner of his sexual penetration;
44.2.telling victims to assume certain positions that would facilitate his offending and removing clothing;
44.3.creating a deliberately deceptive explanation to deflect attention from his wrongdoing (especially since the trial judge noted that the Applicant conceded in his evidence at trial that touching and rubbing had no effect on removal of pain and was neither necessary nor appropriate).
The Tribunal does not dispute the facts as identified by the Respondent. While the particulars of the offences committed over that short period changed in detail from offence to offence, there is not, in the Tribunal’s view, a trend of the increasing seriousness in his offending. The overriding characteristic of the offending is of opportunistic exploitation of position and breach of trust. That applied to the first episode of offending to the last. The Tribunal accepts that the frequency of the offending, albeit over only a three week period, weighs against the Applicant. It is also significant that the Applicant’s offending only stopped when the police spoke to him in February 2011 (R3/25).
The Tribunal also agrees with the Respondent’s observation that the nature of the offences committed by the Applicant must also be assessed taking into account the cumulative effect of the offending for the purposes of paragraph 13.1.1(1)(f) of

Direction 79. It is relevant to this consideration that the offences involved multiple, in this case six, victims. The cumulative effect of the Applicant’s offending is also recognised in the sentences imposed and the fact that two were to be served cumulatively in addition to the five concurrent sentences (the five were to be served concurrently with each other).
The Tribunal also notes that the offences occurred only a relatively short time after the Applicant’s arrival in Australia on the visa in 2008. In those circumstances the Tribunal must assume that Australia has a low tolerance of the Applicant’s criminal behaviour (paragraph 6.3(5) of Direction 79).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2(1) of Direction 79 provides:
(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).
Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
56.... 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 from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [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.
57.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”
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the Applicant were to repeat his offending behaviour is obvious and serious. Mr McIntyre SC for the Applicant commented in his oral closing submissions on the nature of harm caused by sexual offences as follows:
It’s also submitted in the written submissions that the nature of a harm to a person as the result of being sexually assaulted is very serious. Well, that’s probably a given, being both physical and psychological in short and long-term… Clearly some general conclusions can be reached based on general knowledge, I suppose, about the fact that sexual assault does have serious consequences … (Transcript at 57.)
The main point that Mr McIntyre SC was making in that passage was that, unlike the case of CCYW and Minister for Home Affairs [2019] AATA 241 where there was direct evidence of the impact of the applicant’s sexual offending on the victims, there was no such evidence in this case. While that is the case, the relevant consideration for the Tribunal is the harm to future victims if the Applicant were to re-offend. In that regard the Tribunal agrees with Mr McIntyre’s observation that, even in the absence of specific evidence, it can be taken that sexual assault does have serious consequences.
As noted above, while Direction 79 requires consideration of the harm that would be caused if the Applicant were to repeat his offending rather than the harm that was caused to his past victims, the impact that his offending had on his victims is indicative of the type of harm that re-offending might cause. In that regard the sentencing judge observed (R4, G36/88):
There are five impact statements … Each of these women describe the effects of being abused in circumstances where they were vulnerable and trusted you to touch them in the pubic region only during the course of the proper administration of the IPL treatment.
In each case, the abuse by you of that trust by taking sexual advantage of them as you did, has resulted in the impact which each of them described. In my view, the effect on each of them, which they have detailed, is what one would reasonably expect.
Unfortunately the Tribunal does not have the benefit of seeing the victim impact statements to which his Honour refers. The Tribunal is left to glean from his Honour’s comments that the main impact on the victims was that of a feeling of a breach of trust in circumstances where they were vulnerable.
The fundamental characteristic of the Applicant’s offending was, as the sentencing judge noted, a breach of trust. There was no violence or force used by the Applicant in his offending. In each case the victim consented to the Applicant touching her in the genital area, however, that consent was given as a result of the misrepresentation by the Applicant that such contact was necessary and normal in the IPL process. That was not the case. In that sense in each case the consent was procured by the Applicant’s deception.
The Court of Appeal’s relevant characterisations of the offences (see [35] above) were:
·‘… Complainant 6 accepted that the appellant needed to handle her to some extent so he could treat along her pubic bone, bikini line and the outer lips of her vagina, but said that in her judgment what he did was too much (ts 321).’
·Complainant 7 and 8 ‘rejected the suggestion that the appellant did no more than was absolutely necessary for the purposes of what she had paid him (ts 217).’
·‘Complainant 12 & 13 agreed that the appellant had her consent to do what was necessary and reasonable to complete the IPL treatment. She said that there was no reason to touch the clitoris or the inner labia, and rejected the proposition that the appellant did not touch her there.’
·‘… Complainant 14 accepted that hair grew on the inside of her labia and the appellant had her implicit consent to deal with hair follicles there. She confirmed that her allegation was that the appellant over-stepped the mark and went beyond what was necessary to access and treat all the hair follicles.’
·‘… Complainant 15 agreed that she consented to contact with her genital region to the extent that it was reasonably necessary for the IPL treatment. She accepted that this would require some touching of the lips of her vagina with the machine, but not the hand…’
·‘… Complainant 16 accepted that she consented to a reasonable degree of touching and manipulation for the purposes of the appellant accessing her hair follicles. She said this would include the labia and edges of the labia but '[d]efinitely not inside them though'.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
What is the likelihood of the Applicant engaging in further criminal or other serious conduct? In the present case the Applicant’s offending is limited to the seven counts of sexual penetration without consent. The consideration of the likelihood of the Applicant engaging in further criminal or serious conduct is therefore, effectively, limited to considering what the likelihood is of him committing the same or similar offences in the future.
The Respondent points to the following factors as indicating a likelihood of the Applicant re-offending (R1):
·The observations in the Offender Programs Program Completion Report (PCR) dated 13 April 2018 (R4, G62) that the Applicant:
omaintained that his actions of prolonged touch and pressing was to alleviate pain (which is contrary to his admission in evidence at his trial that such actions had no effect in alleviating pain) (R4, G62/396);
oin the beginning of the program (30 November 2017) would bring documentation with him that he hoped would support his stance of denial of intent to sexually offend, and as the program progressed this did not appear to change (R4, G62/397);
odenied that he was sexually motivated to offend (R4, G62/400);
oacknowledged he overstepped a ‘professional boundary’” (R4, G62/400);
odoes not appear to have fully engaged with the extent of his problem (R4, G62/400); and
oappeared to minimise the extent of his offending (R4, G62/400).
·The extent to which the Applicant accepts responsibility for his or her past offending. An expression of remorse for past offending is an important way of demonstrating that an applicant accepts that responsibility. The Respondent cites JFSQ and Minister for Home Affairs (Migration) [2019] AATA 616 at [65].
·There is an inherent risk to the community when a person lacks insight into their offending behaviour or does not show remorse for their crimes.
The Respondent also refers to the PCR which noted that the Applicant constantly denied his offending behaviour, making it ‘difficult to explore issues in relation to program content or explore the cognitions related to his sexual offending’ (R4, G62/398).
The Applicant’s denial of criminal behaviour at the trial appears to have been based, in part at least, on an argument that what he did was in accordance with standard practice and proper use of the IPL machine. The Applicant’s grounds of appeal and submissions to the Court of Appeal (R4, G44) and the Applicant’s submissions to the delegate in response to the Department’s invitation for submissions on the possible revocation of the cancellation of the visa (R4, G40-41) were to the effect that what the victims actually felt was the machine touching them. He denied, and as far as the Tribunal is aware, still denies digital penetration and the sustained rubbing of the clitoris. The jury did not accept the Applicant’s story. The jury found the charges, as particularised and summarised above, proved beyond reasonable doubt. This Tribunal is bound to accept that finding (see Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, HZCP v Minister for Immigration and Border Protection (2018) FCA 1803 per Bromberg J at [78] and Toki and Minister for Home Affairs [2019] AATA 742 at [64]-[66]).
While in some cases a failure by a person to accept or appreciate that what they have done was wrong may not indicate a greater likelihood of their doing it again, in the present case it appears to the Tribunal that the Applicant still fails to admit what he did and still, it seems, tries to argue that his actions were within the bounds of proper practice. That is of concern to the Tribunal in assessing the Applicant’s likelihood of committing further criminal or other serious conduct and weighs against the revocation of the cancellation of the visa.
In relation to the likelihood of the Applicant re-offending, the Applicant makes the following submissions:
12.The Applicant and his business at [omitted] Beauty Salon have stopped all IPL Treatment and beauty therapy and will no longer offer those services, limiting their services to hair cuts and hair colouring only (PG38 at 109).
13.The Applicant received a Certificate of Completion of a Restorative Justice Programme: ‘Reach for Life’ dated February – March 2017 (PG22)
14.The Applicant has completed the Life Skills programme run by Outcare aimed at helping prisoners gain new knowledge and insight into areas which may help with their future lives in the community (PG38 at 109).
15.The Applicant has completed the Standing on Solid Ground programme focussed on emotional intelligence and self-development (PG38 at 109).
16.The Applicant participated in the Medium Intensity Sex Offender Treatment Program at Karnet Prison Farm between 30 November 2017 and 6 March 2018. In his initial pre-treatment assesment he was “deemed to be in the low risk category” (G62/PG62 at 394). In relation to sexual behaviours he “demonstrated a sound understanding of consent and the parameters around it …recognised the importance of boundaries and the need to implement them” (PG62 at 397). He “proposed that he would be working in the family export business and will not return to the beauty industry” (PG62 at 399). He “acknowledged that his actions had caused harm….recognised the importance of boundaries and the need to implement them…[and] acknowledged he overstepped a professional boundary which was considered a positive shift in terms of program treatment” (PG62 at 400).
17.The Prisoners Review Board Western Australia on 31 July 2018 expressed the opinion that a Post Sentence Supervision Order was not required with respect to the Applicant, taking into account the PSSO considerations in

s 74B of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community as required by s 5B of that Act (PG60 at 280).
In assessing the likelihood of the Applicant re-offending it is appropriate to consider the circumstances of the Applicant’s previous offending and the likelihood of those circumstances arising in the future. While it is the case that the Applicant’s offending occurred in a fairly unique environment, namely an environment in which the Applicant had the opportunity to touch women’s genital area with their consent, the industry in which the offending took place appears to be largely unregulated. No qualifications or certification is needed and, it would seem, anyone can set up a business offering pubic hair removal services. While the Applicant says that he will not be working in the industry in the future, there is no way of ensuring that that will be the case. In the end, all that the Tribunal has is the Applicant’s word that he will not be involved in the industry, or at least this aspect of the industry, in the future. The Tribunal is, however, wary of taking the Applicant’s word in this regard given the Applicant’s continued denial of any wrongdoing and continued denial of facts as alleged by the victims and found by the jury. The Applicant’s honesty generally must be doubted.
Evidence was given at the hearing by the Applicant, his wife, his brother with whom he started the export business, the Applicant’s son who is studying mechanical engineering at Curtin University (R4, G31), the Applicant’s parish priest and a friend who has known the Applicant for over ten years. The evidence of the witnesses called by the Applicant, all of whom had given written statements or letters, was to the effect that the Applicant was of good character, a good family man who loved and supported his family and who had the love and support of his family. All of the witness gave credible, and the Tribunal accepts, genuine evidence. However, all of the Applicant’s witnesses’ evidence has to be seen in light of the fact that none of the witnesses, perhaps with the exception of the Applicant’s parish priest, could accept that the Applicant had committed the offences. That, in the Tribunal’s view must diminish the weight that can be given to their evidence insofar as it goes to the likelihood of the Applicant re-offending.
Having said that, the Tribunal accepts that if the Applicant were to be permitted to remain in Australia, he would have support from his family and his community not to re-offend.
Direction 79 requires the decision maker to consider whether the risk of future criminal or other serious conduct, bearing in mind the consequences that such conduct would have, is unacceptable. The test is not whether there is any risk; the test is whether the risk is unacceptable (see analysis of test as set out in CZCV at [44] above). As the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice (2013) 41 VR 359;

304 ALR 535; [2013] VSCA 213 expressed it:
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.
For the reason set out above, the Tribunal is of the view that the likelihood of the Applicant re-offending is low, however, the consequences if he were to re-offend could be very serious. This primary consideration, in the Tribunal’s view, weighs against revocation of the cancellation of the visa.
Second primary consideration: The best interests of minor children in Australia (13(2)(b))
Paragraph 13.2 of Direction 79 provides:
(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.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

The Applicant does not have any minor children and there are no other minor children in Australia to whom this consideration could apply. This consideration is therefore not relevant.
Third primary consideration: Expectations of the Australian Community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to 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.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [27] above), in particular those set out in subparagraphs (2), (3), (4) and (5).
The proper construction of the above provisions was considered by the Federal Court in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). That case was looking at the construction of the predecessor of Direction 79, namely Direction 65, which was relevantly in the same terms. In that case 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 [2016] FCA 348; 248 FCR 296 at [64]–[66]).
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.
The passage referred to by Mortimer J above in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296; [2016] FCA 348 (Uelese) 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.
[66]I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: "I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself' or in the Tribunal's consideration of the expectations of the Australian community.
In Afu and Minister for Home Affairs [2018] FCA 1311 at [85] Bromwich J found:
… 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.
The Tribunal has considered the effect of Mortimer J’s judgment in a number of decisions (see for example Deputy President Rayment QC in Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17]; Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85]). 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.
The more common approach, however, and one with which this Tribunal agrees, is that her Honour’s comments in YNQY, in particular the operation of the ‘kind of deeming provision’ (YNQY at [76] – see [65] 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’. That was the approach taken by Member Eteuati in Doan and Minister for Home Affairs [2019] AATA 169 at [185]-[208]. Member Eteuati relevantly found:
205.The Tribunal considers that Mortimer J’s comments in paragraph 75 to 77 of YNQY decision are directed to the third sentence of paragraph 13.3 of the Direction either because Mortimer J considered that the seriousness and nature of the applicant’s conduct in that case were such that the Australian community would expect that the person should not hold a visa, or more likely, that her Honour reached the conclusion that the Tribunal Member in that case had so found.
In reaching that conclusion the learned member reasoned:
187.In YNQY Mortimer J was considering, relevantly, a ground of review that the Tribunal had failed to deal with the primary consideration of the expectations of the Australian community according to law.
188.At this point in her decision her Honour had already found that the Tribunal had committed a jurisdictional error arising from the way it had dealt with the primary consideration of the best interests of any minor children, and a jurisdictional error arising from the way the Tribunal had dealt with the consideration of impediments to the applicant re-establishing himself in his home country. In doing so, her Honour had discussed the circumstances in which it may be appropriate for a court to refuse to grant relief where it is found that a decision is affected by jurisdictional error. Her Honour found that a court may refuse to grant relief where, despite the error, the applicant was not deprived of the possibility of a successful outcome.
189.In relation to the ground of review regarding the expectations of the Australian community, Mortimer J did not make a finding as to whether the Tribunal had erred legally in the way that the Tribunal had dealt with that consideration. Rather, her Honour expressed that even if such an error was found, the applicant was not deprived of the possibility of a successful outcome. For the reasons given below, the Tribunal finds that her Honour reached that conclusion because it had been found that the nature of the character concerns or offences regarding the applicant in YNQY were such that the Australian community would expect that the person should not hold a visa (see third sentence of paragraph 13.3(1)). In these circumstances, her Honour stated that it was inevitable that this consideration would weigh against revocation of cancellation.
...
192.The Tribunal considers that Mortimer J was expressing that the consideration of the expectations of the Australian community is adverse to any applicant, and that is inevitable that this consideration would weigh against revocation, 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.
In the case of Margach and Minister for Home Affairs [2019] AATA 353 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 non-citizens 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. 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) that I have set out at [50] above. Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.
Member Burford in Nathanson and Minister for Home Affairs [2019] AATA 642 (published on 4 April 2019) stated at [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.
Two recent decisions handed down by the Federal Court on 11 April 2019 have, unfortunately, not clarified the position. In DKXY v Minister for Home Affairs [2019] FCA 495, Griffiths J, having cited [76] and [77] of Mortimer J’s decision in YNQY (see [65] above), made the following observations:
30… The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant. The difficulty with the Minister's submission is that the language in YNQY at [76] and [77] is not in its terms confined to the circumstances of the particular applicant there and, on one view, appears to have been intended to have a more general application. The ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
31As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. 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, including those which are referred to in [23] above.
32I also respectfully disagree with the primary judge's reference at [77] of YNQY that Robertson J's reasons for judgment in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]-[66] supported her Honour's view that it was "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do. It is desirable to set out those paragraphs from Uelese…
Griffiths J then cites [64]-[66] of Uelese (see [67] above) and says:
33These passages are directed to a submission made by the applicant in that case to the effect that the AAT there had no evidence to make the findings that it did regarding the expectations of the Australian community. In rejecting that submission, his Honour said that those expectations were not a matter which required evidence because the Direction itself contained statements concerning the Government's views as to those expectations. There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decisionmaker which is relevant to an assessment of this primary consideration. The Government's views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
34This does not mean, however, that the AAT fell into jurisdictional error when it described the reasoning in YNQY as binding on it. That is because, the AAT then proceeded to adopt and apply the correct approach to cl 13.1, i.e. the broad approach. As mentioned above, the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant’s circumstances when considering the expectations of the Australian community. The AAT then proceeded to implement that broad approach by reference to the totality of the applicant’s circumstances. Accordingly, there is no jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [25] and [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]-[46) per Bell, Gageler and Keane JJ and DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [48]-[49] per Griffiths and Steward JJ).
His Honour is clearly expressing the view that the correct approach is the broad approach, namely that consideration had to be given to all of the applicant's circumstances when considering the expectations of the Australian community and that it was not inevitable that the primary consideration of the expectations of the Australian community would weigh against revocation.
The contrary approach seems to have been taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) also handed down on 11 April 2019 in which his Honour found:
21At the heart of the applicant’s submission is that the Tribunal failed to comply with cl 11.3 of the Direction because it treated cl 11.3 as conclusively “deeming” (to quote Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at [76]) what community expectations are, irrespective of the individual’s personal circumstances… By contrast, the applicant submitted that cl 11.3 requires the Tribunal to undertake “an assessment of community values made on behalf of [the Australian] community”, citing Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] (Bromwich J). As such, in the applicant’s submission, the Tribunal failed to appreciate that it was permissible under cl 11.3 for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention. He further submitted that if the Tribunal had appreciated that this was permissible, it may have reached a different decision…
22The applicant accepted at the hearing that in order to succeed on this argument, it was necessary for him to demonstrate that the decision of Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (Oluwafemi) was “plainly wrong”:... While the applicant also submitted that the passages from Mortimer J’s decision in YNQY relied upon by the Tribunal were obiter, he submitted that if I were to find that they were ratio, they were also plainly wrong.
23In Oluwafemi the applicant submitted that the Tribunal was required to determine the content of the primary considerations specified in Direction 65, including community expectations under cl 11.3(1), and was to do so by reference to the particular steps taken by the applicant to reform his behaviour: Oluwafemi at [35].
24Justice Thawley rejected this submission, holding that it:
37. … is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant’s circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant’s case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised.
25Similarly, his Honour rejected the applicant’s submission that the Tribunal erred in failing to take into account the fact that the applicant’s wife and minor child were also part of the Australian community and in failing to take their expectations into account, holding that:
47. Paragraph 11.3(1) of the Direction states, in effect, the Minister’s policy as to the expectation of the Australian community – see: YNQY at [76] per Mortimer J … It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant’s wife and minor child at parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interests of the applicant’s wife and minor child.

Perry J goes on to cite [76] and [77] of Mortimer J’s judgment in YNQY (see [65] above) and finds:
27In my view, notwithstanding counsel’s careful submissions, the applicant has not established that the decision in Oluwafemi and Mortimer J’s reasoning in YNQY are plainly wrong and should not be followed.
Her Honour goes on to hold:
39Contrary, therefore, to the applicant’s submissions, in my view there is nothing in the text or context of cl 8(3) which suggests that a primary consideration must be of the latter, fact-sensitive kind as opposed to establishing a “norm”…. There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant’s commission of serious criminal offences.
…
41In the applicant’s submission, this clause [paragraph 6.3(5) of Direction 65] expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as “other considerations” in cl 12.
42It 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…
It is not clear to this Tribunal what the effect is of the qualifying final words in [42] of the above decision. Having found that the ‘norm’ is that the expectations of the Australian community are that where paragraph 11.3 of Direction 65, which is materially the same as paragraph 13.3 of Direction 79, is applicable, namely where there has been a breach of trust or there is an unacceptable risk that there will be a breach of trust or the visa applicant has been convicted of offences, the expectation would be of a refusal of the visa. It is not clear in which cases that norm would not apply. Accordingly, while seemingly accepting the narrow approach, namely that this consideration requires the decision maker to treat this consideration as being against the grant of a visa, or against the revocation of the cancellation of a visa, her Honour leaves open the possibility that that may not be so in all cases. This Tribunal, however, takes the effect of Perry J’s decision in FYBR to be affirming the narrow approach, that is, that this consideration can only weigh against the revocation of the cancellation.
In the present case the discussion as to whether the effect of Mortimer J’s judgment in YNQY and the decisions that seem to follow the narrow approach, including FYBR, require the decision-maker in all cases to take the community’s expectation to be against revocation of cancellation or whether that ‘deemed’ expectation under Direction 79 only arises in the circumstances described in the third sentence of paragraph 13.3(1) of Direction 79 or whether broader considerations have to be taken into account, is largely academic. That is because, in the Tribunal’s view, the offences in the present case, which by operation of Direction 79 are to be viewed as very serious, are such that the Australian community would expect that the Applicant not hold a visa. In other words, even adopting the broad approach it is the Tribunal’s view that the expectations of the Australian community would be against the revocation of the cancellation of the visa.
Although the expectations of the Australian community weigh against the revocation of the cancellation of the visa, the Tribunal must, in the exercise of its discretion, decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. That exercise is undertaken later in this decision.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 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
Non-refoulement obligations (14(1)(a))
The Applicant does not raise any non-refoulement issues. The fact that there are no non-refoulement issues in this case was confirmed at the hearing by Mr McIntyre SC (Transcript at 58). The Tribunal is satisfied that is the case.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(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 non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Respondent points to the following facts (R1):
(a)The Applicant came to Australia briefly in 2001 for two years as a student, then later returned with his family in early 2008 after being granted the visa. He was then 38 years of age and has lived here ever since (R4, G57).
(b)In April 2009 the Applicant and his wife established the Beauty Salon in Canning Vale (R4, G54/251-252).
(c)In May 2010 the Applicant and his brother established Perth Exporters Pty Ltd at the same premises in Canning Vale as the Beauty Salon (R4, G54/253-254).
(d)The Applicant’s offending commenced in January 2011, almost three years after his arrival, but less than two years after the salon was established, and only eight months after Perth Exporters Pty Ltd was established.
The Respondent also submits that the Applicant has not demonstrated any lengthy period in which he did not offend, and he has had limited opportunity to contribute to the Australian community independently of his family. The Tribunal agrees with the Respondent’s submissions. The Tribunal also notes that the Applicant did not arrive in Australia as a young person (paragraph 14.2(1)(a) of Direction 79). Given these factors, less weight should be given to the time he has been in Australia, which, in any event, the Tribunal finds to be relatively short.
Further, while it could also be considered that the Applicant has contributed to the Australian community by his establishment and involvement in two businesses, that consideration is somewhat diminished by one of those businesses being used by the Applicant for the commission of his offences.
In relation to the consideration raised by paragraph 14.2(1)(b) of Direction 79, the Respondent concedes (paragraph 84 of Respondent’s submissions):
…that the applicant has significant family ties in Australia, with his wife, adult son and brother (all Australian citizens) residing in Australia, in addition to 6 members of his extended family [G38/104/108 & G45/237]. These family members continue to support the applicant and there are strong ties over a long duration with his immediate family despite his offending.
The Respondent also notes that the [omitted] Beauty Salon, which has been operated by the Applicant’s wife exclusively since at least 2014, has, according to the Applicant, as at 28 June 2008, some 3,000 regular clients (R4, G28/56). Perth Exporters Pty Ltd has been in business for almost a decade and earns revenue (R4, G28/56). This is a business which involves the exporting of used mining industry equipment (R4, G28/56, Transcript at 7). The Applicant’s brother’s evidence was that the Applicant completed his Bachelor of Business majoring in Marketing and Management to help grow the business (R4, G65/407).
The Respondent points out that the businesses have run largely without input from the Applicant for the last five years, which suggests that the Applicant’s family needs him more for emotional/psychological support than financial support (R1). Part of the Applicant’s case was, however, that since he has been unable to assist with either the salon or the export business both have struggled (Transcript at 72). That was supported by the evidence of the Applicant’s wife and his brother (R4, G65/407 and G30/60).
Overall, the Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the visa.
Impact on Australian business interests (14(1)(c))
Paragraph 14.3 of Direction 79 directs that this consideration would generally only be given weight where non-revocation of the cancellation would significantly compromise the delivery of a major project or delivery of an important service in Australia. That is not the case in this matter so this consideration has no application.
Impact on victims (14(1)(d))
No evidence was presented to the Tribunal on the likely impact that a revocation of the cancellation of the Applicant’s visa would have on any of his victims or other members of the Australian community. Accordingly this consideration has no application.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 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’s counsel in opening, having confirmed that there were no non-refoulement considerations in the Applicant’s case, submitted:
The health of the applicant is an issue, not an overwhelming issue. There is evidence that he has had a kidney problem. He has had what is called a staghorn calculus removed from his left kidney, and he required antibiotics to maintain kidney health, and he also has a high blood pressure problem. We don’t say that those are overwhelming factors which would determine the decision.
(Transcript at 4.)
The Respondent submitted in his SFIC as follows (R1):
92.The respondent contends that the extent of impediments if the applicant is removed to his home country of Sri Lanka are low. The applicant has both his parents and 7 other close family members still living in Sri Lanka [G38/104] who can assist his return to a life in the land of his birth and re-establish himself.
93.The applicant was 38 years old when he left Sri Lanka in 2008. He would be returning to Sri Lanka more skilled than when he left, having completed further education in Australia, and acquired skills developing and running his businesses. Whilst he may encounter some hardship or adjustments, there is no evidence to suggest they would be permanent or preclude his return home.
94.Furthermore, the applicant does not suggest that he will encounter substantial (if any) language, social or cultural barriers given the number of years he spent living in Sri Lanka before moving to Australia.
95.As a Sri Lankan citizen, the applicant would have the same access to medical and/or economic supports as other citizens of Sri Lanka, such that this also would not be an impediment to removal.
The Tribunal accepts that the extent of impediments to the Applicant being removed to Sri Lanka is low.
THE WEIGHING EXERCISE
Guidance is given by Direction 79 of how the decision maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:
(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.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. In discussing how the exercise was to be undertaken under Direction 65, which, for relevant purposes, is in the same terms as Direction 79, Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 (Suleiman) said:
23The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
...
40There is no hierarchy of considerations expressed within the state of satisfaction required by s 501CA(4). Therefore, it would be contrary to s 501CA(4) to approach the matter on the basis that certain considerations were inherently less important in forming the state of satisfaction required by the Act.
...
44Accordingly, the Tribunal correctly approached the matter on the basis that the decision in BCR16 meant that Direction 65 could not require the Tribunal to, in effect, ignore the matters raised by the applicant as to the risk of harm. The same would apply if Direction 65 required the Tribunal to treat any matter as a secondary consideration. Direction 65 could identify matters that were required to be considered in all case (namely, the primary considerations). However, it could not direct that a particular matter be given less weight in all cases. So, if I am wrong in the view that I have taken as to the meaning of Direction 65 and it required the 'other considerations' to be given less weight then that too was an aspect of the direction that could not validly have confined the Tribunal.
The decision in Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217. The Full Court observed:
30In our view the Tribunal’s reasons, read as a whole, do not reflect an understanding that “other” considerations must always be given lesser weight than primary considerations, or that this view prevailed when considering the international non-refoulement obligations owed to the respondent. This may be seen from the following matters.
31First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as:
[W]hether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
32The reference to “secondary” in this context is ambiguous, because it may be synonymous with “other” or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it “needs to weigh” these safety concerns with the “very strong” earlier identified (primary) concerns in relation to the seriousness of the respondent’s crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than “other” considerations and that the Tribunal finds “that the primary considerations here clearly outweigh this secondary consideration” (emphasis added). The reference to “normally” indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the “other” or “secondary” consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in s 8(4) provides that “primary considerations should generally be given more weight than other considerations”. The word “normally” indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.
33This understanding of the Tribunal’s reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the “strength, nature and duration of ties” that it is not convinced that “on balance” they outweigh the primary considerations identified earlier.
34Further, in its conclusions at [119] – [124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the “other” considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not “outweigh the other primary considerations” which are “generally afforded greater weight” (emphasis added). This language indicates that the Tribunal did not take the view that “other” considerations were always subservient to primary considerations.
35Taken together, we consider that the ambiguity apparent from the twice used word “secondary” does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. Certainly if the Tribunal did regard a secondary consideration as incapable of outweighing a primary consideration then it would not, in that respect, be correct and her Honour’s agreement with that decision would equally have been correct. However, the contextual matters to which we have referred indicate that the Tribunal did not do so in the present case, as a result of which the appeal based on grounds 1 and 2 succeeds.

While Direction 79 states that a primary consideration should generally be given greater weight than the other considerations (paragraph 8(4) of Direction 79), 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 (see Le and Minister for Home Affairs [2018] AATA 4126 at [139]).
Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
164.Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
The Tribunal agrees with the approach outlined by Senior Member Dr M Evans.
The Applicant makes the following submission at paragraph 42 of his SFIC (A1):
In the circumstances, taken as a whole and described in detail in paragraphs 1 to 36 above and applying the relevant parts of Migration Act 1958 Direction no 79, referenced in paragraphs above, the Tribunal should conclude that the preferable decision is that the original decision to cancel the Applicant’s visa should be revoked because -
(1)The Applicant does not pose an unacceptable risk to the Australian community through re-offending, given the confined nature of his offending, his family and community support and his steps taken to reform and address his behaviour and his insight into the offending behaviour and he will not work in the beauty industry again;
(2)The best interests of his wife and son will not be served by his return to Sri Lanka, given that they are citizens of Australia and not citizens of Sri Lanka and he and his wife have property and business interests in Australia and none in Sri Lanka; and
(3)The strength, nature and duration of the Applicant’s ties to Australia are sufficient, when taken with the other reasons, to support that decision.
The Respondent’s summary in his SFIC is;
98.The respondent contends that all the factors weigh against the exercise of discretion under s501CA(4) of the Act to revoke the applicant’s mandatory Visa cancellation. That is, there is no reason demonstrated why the cancellation should be set aside.
99.For these reasons the decision under review is the correct and preferable decision. In all the circumstances the Tribunal should not revoke the cancellation decision.
The contention by the Respondent that ‘all the factors weigh against the exercise of the discretion’ is not quite correct given the Respondent’s concession in paragraph 87 of his SFIC that ‘the applicant’s family ties in Australia weigh in his favour’.
For the reasons set out in [43]-[60] above, it is the Tribunal’s view that the primary consideration of the protection of the Australian community from serious or other conduct weigh against the revocation of the cancellation of the visa. The nature of the offences, the fact that they must be viewed as very serious (paragraph 13.1.1(1)(a) of Direction 79), the fact that the total term of imprisonment imposed was considerable and the fact that the offending included egregious breaches of trust weigh heavily against revocation of the cancellation of the visa.
Also the primary consideration of the expectations of the Australian community weighs against the revocation of the cancellation of the visa. What weight should this consideration be given? The Tribunals accepts that the Applicant has an otherwise unblemished record and that the Applicant’s other personal circumstances and antecedents indicate that while the community’s expectation would be against revocation of the cancellation of the visa, it would not be a particularly strong expectation in this case. It does, however, still weigh against revocation of cancellation.
Weighing in favour of the revocation of the cancellation of the visa is the strength and nature of the Applicant’s ties to the Australian community and the impact that cancellation of the Applicant’s visa would have on the Applicant’s wife and son in particular, and also on his brother. This consideration, while weighing in favour of revocation the cancellation, must be given less weight given the relatively short duration of the Applicant’s ties to Australia. While he spent just over two years in Australia while on a student visa between 2001 and 2003, he left Australia in 2003 and returned to Sri Lanka for nearly five years returning to Australia in April 2008. His offending commenced around two and a half years after that.
In the Tribunal’s view, while it is a very fine balance, the factors that weigh in favour of the revocation of the cancellation of the visa are outweighed by the considerations which weigh against the revocation of the cancellation of his visa. In reaching this conclusion the Tribunal places particular weight on the nature and seriousness of the offences, the risk to the Australian community and the expectations of the Australian community.
CONCLUSION
The Applicant does not pass the character test. That is not disputed. The sole issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, on balance the Tribunal is not satisfied that there is not another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under

s 501CA(4)(b)(ii) of the Act.
DECISION
The Tribunal affirms the decision by the delegate of the Respondent dated

21 January 2019 made under s 501CA(4) of the Act to refuse to revoke the mandatory cancellation of the Applicant’s Class BN, Subclass 136 Skilled Independent visa under

s 501(3A) of the Act.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.....[sgd]...................................................................
Associate
Dated: 24 April 2019

Date of hearing: 8 April 2019

Counsel for the Applicant: Mr G McIntyre SC

Counsel for the Respondent: Ms K Vernon

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	8 April 2019
Counsel for the Applicant:	Mr G McIntyre SC
Counsel for the Respondent:	Ms K Vernon
Solicitors for the Respondent:	Sparke Helmore