Syahab and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1606
•27 August 2025
Syahab and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1606 (27 August 2025)
Applicant/s: Abdullah Fikri Syahab
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4009
Tribunal:General Member R Cameron
Place:Melbourne
Date:27 August 2025
Decision:The Tribunal affirms the decision under review.
...................................[SGD]...................................
General Member R Cameron
Catchwords
MIGRATION – Applicant a citizen of Indonesia – Class WA, Subclass 010, Bridging A visa cancelled – convicted of sexual assault and rape by compelling sexual penetration – applicant did not pass the character test – whether the discretion under s 501CA(4)(b) of the Migration Act 1958 to revoke the cancellation decision should be exercised – Direction No. 110 – protection of the Australian community – nature and seriousness of offending – serious offending – sexual crimes – risk to Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – decision affirmed.
Legislation
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Cases
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
FYBR v Minister for Home Affairs (2019) 272 FCR 454
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Plaintiff M2/21 v Minister for Home Affairs (2022) 275 CLR 582
Secondary Materials
Minister for Immigration, Multicultural Affairs, Migration and Citizenship, Direction No 110: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (21 June 2024)
Department of Foreign Affairs and Trade, COUNTRY INFORMATION REPORT INDONESIA, July 2023
CAST, “Indonesia’s revised criminal code rolls back civil rights and liberties, drawing widespread criticism”, December 14, 2022
Human Rights Watch, “Indonesia: New Criminal Code Disastrous for Rights”, December 8, 2022
H & A Partners, “Indonesia’s regulatory update on the new Criminal Code”, January 16, 2023
Statement of Reasons
INTRODUCTION
The applicant seeks a review of a decision made by a delegate of the respondent of 10 June 2025 not to revoke the mandatory cancellation of his Class WA Subclass 010 Bridging A visa (“the visa”) under s 501CA(4) of the Migration Act 1958 (“the Act”) (“the reviewable decision”).
The applicant is a citizen of Indonesia. He arrived in Australia on 22 December 2021.
THE APPLICANT’S REPRESENTATION AT THE HEARING OF THE APPLICATION
The applicant was jointly represented by his husband Mr Johnson and a friend Ms Murch, a close friend of both the applicant and Mr Johnson. Ms Murch has known Mr Johnson most of her life and is clearly an extremely close friend of his. She has known the applicant since approximately September 2019 when she was then residing in Bali, Indonesia writing a book. It is fair to say, that she has known the applicant from almost the beginning of his relationship with Mr Johnson.
It should be observed that neither Mr Johnson, nor Ms Murch are legally qualified. This factor was taken into account by the Tribunal at all times during the hearing of the application.
Ms Murch has supported the applicant throughout his lengthy legal ordeals. This has included attending most of the court proceedings that the applicant faced after he was charged with the offences that ultimately led to his imprisonment. She is also a regular visitor to him in prison wherever he has been, including his present facility being the Hopkins Correctional Centre in Ararat.
Throughout the hearing Ms Murch was the predominant advocate for the applicant. Notwithstanding that she is not legally qualified and had on her own admission, limited exposure to courts and legal process, she did perform particularly well in advocating for the applicant and his interests.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The following witnesses gave oral evidence:
(a)The applicant;
(b)The applicant’s husband Mr Johnson;
(c)Ms Gildea;
(d)Mr Gildea; and
(e)Ms Murch.
In terms of documentary evidence, the “G” documents and Supplementary “G” documents were tendered and received in evidence. Additionally, a “Hearing Book” (“HB”), which was a compilation of other documents, was before the Tribunal.
As the Tribunal informed the parties at the commencement of the hearing of the application, it also referred to the DFAT “Country Information Report Indonesia” (24 July 2023.) Some applicable paragraphs of that Country Information Report will be referred to later in these reasons.
THE RELEVENT SECTIONS OF THE MIGRATION ACT
Section 501(3A) of the Act specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth), s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[2]
[2] Direction 110 commenced on 21 June 2024.
ISSUES BEFORE THE TRIBUNAL
There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[3]
[3] See, G9 to G15, for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent prior to making the reviewable decision. That material has also been read and considered by the Tribunal.
Therefore, two issues remain for determination by the Tribunal as follows:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. He was on 19 June 2024 convicted in the County Court of Victoria of 3 charges of sexual assault and one charge of rape by compelling sexual penetration.[4] He was given a total effective sentence of 3 years and 10 months imprisonment with a non-parole period fixed of 2 years and 2 months.
[4] The National Criminal History Check G3 and the Reasons for Sentence in the County Court of Victoria or 19 June 2024 are referred to with respect to the sentence imposed on the applicant.
DIRECTION 110
At the outset it is appropriate to refer to several of its provisions which guide decision-makers such as the Tribunal, and to note the considerations to be taken into account as articulated Direction 110. This overview is of course in no way exhaustive, and no substitute for careful consideration of the language used in each of its provisions. Several of those provisions warrant mention at this stage of the process.
Paragraph 4 “Interpretation” provides a definition of several expressions or terms that are referred to in the “primary” and “other” considerations that the Tribunal is obliged to apply.
Paragraph 5.1 “Objectives” articulates the objectives of the relevant provisions of the Act. Amongst other things, the objectives include:
(a)To regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa;
(b)Specifically, under subsection 501 (1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision maker must consider the specific circumstances of the case in deciding whether to exercise that discretion;
(c)The purpose of this Direction is to guide decision makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499 (2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 “Principles” provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501, or whether to revoke a mandatory cancellation under s 501CA of the Act. These Principles include the following:
(a)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.
(b)The safety of the Australian community is the highest priority of the Australian Government.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.
(d)The Australian community expects that the Australian Government can and should cancel non-citizens visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(f)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation.
(g)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 “Making a decision” provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 “Taking the relevant considerations into account” provides that:
(a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(b)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(c)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 “Primary considerations”, provides that in making a decision under, amongst others, s 501CA (4), the following are primary considerations:
(d)protection of the Australian community from criminal or other serious conduct;
(e)whether the conduct engaged in constituted family violence;
(f)the strengths, nature and duration of ties to Australia;
(g)the best interests of minor children in Australia;
(h)expectations of the Australian community.
Paragraph 9 “Other considerations”, provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 110 provides that 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.
Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following:
(a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:
(i)violent and/or sexual crimes;
(ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(c)with the exception of crimes or conduct mentioned in subparagraph (a) (ii), (a) (iii) or (b) (i) the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose Visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their isa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
(f)the cumulative effect of repeated offending.
The applicant’s offending
Prior to his conviction and sentence in the County Court of Victoria 19 June 2024, the applicant had no prior criminal history.
The applicant’s offending occurred just on three months after his arrival in Australia.
The starting point of course is to briefly record the circumstances of the applicant’s offending. Those details are outlined in the judge’s Reasons for Sentence. It is not necessary for the purposes of these reasons to reproduce significant details of the offending but just outline the key aspects of it.
The offences concerned occurred whilst the applicant was employed as a professional masseuse in a western suburban health clinic. The offending took place over two days on 10 March and 12 March 2022 whilst he was providing massage services to two separate male customers of that clinic.
The first victim, who was 27 years of age at the time, attended at the clinic on 10 March 2022 requesting a hip massage. The applicant directed him to a massage booth and in his absence the first victim undressed lying face down on the massage table wearing his underwear and covered by a towel.
Initially, the applicant massaged the victim’s back and then progressed to his left leg, hip area and quads. Eventually, the applicant massaged the victim’s anterior hip in the pelvic area (“TFL” muscle). He then requested that the victim remove his underwear. The victim then pulled his underwear down somewhat but ensuring the towel continued to cover him. The applicant then pulled off the victim’s underwear. The applicant then placed the victim’s legs into what was described as a “frog position” and began brushing his penis with his hand. This act constituted the first charge of sexual assault.
The victim adjusted his towel and covered his penis with his hands. The applicant requested the victim to move his hands so that he could gain access to and presumably massage the TFL spot. He then further requested the victim to move his hands so that he could gain access to the TFL spot. The applicant continued brushing his hand against the victim’s penis. The victim thought it was accidental. These acts were a continuation of the first charge of sexual assault.
Following these events his victim felt what was described as a weird feeling lasting approximately 5 to 10 seconds on his penis. This prompted him to look down and he observed the applicant’s mouth over the shaft of his penis. The applicant’s head was bobbing up and down. The facemask he was wearing was down around his chin. These acts constituted the second charge of rape by compelling sexual penetration.
The facts that gave rise to the third and fourth charges occurred two days later on 12 March 2022.
The second victim attended at the clinic for a neck, back, shoulder and arm massage. After 20 minutes the applicant offered to massage his legs at no additional cost. This required the victim to remove his jeans. He did so and laid back on a massage table facing down with a towel covering his buttock region. Whilst massaging the back of the right knee and left knee upwards towards the glutes using both hands, the applicant grazed the victim’s testicles and penis with his fingers. The victim initially assumed that this contact was accidental.
The applicant then asked the second victim if he wished to have his glutes massaged, to which he agreed. At the request of the applicant, he removed his underwear but kept a towel covering him. He then rolled onto his stomach. The applicant began massaging the victim’s right gluten muscle using both hands. He then repeatedly rubbed the inner side of circular motion grabbing the victim’s penis on the way through. This act constituted the third charge of sexual assault.
The victim then felt the applicant’s hand around his penis massaging it. This caused the victim to flinch. The applicant then switched to the left glutes. He then used one of his hands to massage the victim’s inner thigh and penis. These acts constituted the continuing third charge.
The fourth charge of sexual assault arose when after a few seconds the victim looked up over his shoulder and saw the applicant’s head bob up from his buttock region. His facemask was pulled down below his chin. The applicant had licked the victim’s penis or used his tongue or mouth to make contact with it.
The matters were reported to the police. DNA was taken from both victims. The profile was explained as the applicant being 100 billion times more likely to be a contributor.
The applicant was arrested at the clinic on 15 March 2022. A record of interview was conducted.
With respect to the first victim, in the record of interview the applicant agreed he was working at the clinic on 10 March 2022 but did not recall giving him a massage and denied the offending.
The applicant admitted that he gave the second victim a massage on 12 March 2022 but denied any wrongdoing. He also denied touching the second victim’s penis and contended that if he had done so it was purely accidental. He denied licking his penis as alleged.
The sentencing judge expressed the view that there can be no doubt that the offences for which the applicant was before the court are inherently serious.[5] The Tribunal agrees with this conclusion.
[5] HB7, 54 at [38].
In the submissions made on the applicant’s behalf both in writing and orally by Ms Murch at the hearing of the application it was acknowledged that his offending was serious.[6]
[6] Such an acknowledgement was made in the Applicant’s Reply Submissions to the Respondent’s Statement of Facts, Issues and Contentions of 8 August 2023. (HB 6, 43) Both in her opening and closing submissions to the Tribunal Ms Murch stated that the applicant realised his offending was serious.
The judge rightly observed that customers attend massage clinics expecting a professional service. The two victims who were aged 27 and 25 sought a massage to assist them in alleviating their physical ailments. Having removed their clothes, they were on the massage table in a vulnerable state. He concluded therefore that the applicant’s offending involved a gross breach of their trust in him. The respondent in both its written and oral submissions emphasised the breach of trust as a significant factor in categorising the applicant’s offending as serious.[7]
[7] Paragraph [23] of the respondent’s Statement of Facts, Issues and Contentions of 29 July 2025.
Another matter observed by the sentencing judge, with which the Tribunal agrees, is that having offended against the first victim on 10 March 2022 the applicant did not learn and offended yet again against a second person, only 2 days later.
In terms of the seriousness of the applicant’s offending reference should also be made to the provisions of s 6B of the Sentencing Act 1991 (Vic). That section “Definitions for purposes of this part”, defines a “serious sexual offender” as an offender who has been convicted of 2 or more sexual offences for each of which he has been sentenced to a term of imprisonment. As observed by the trial judge, by reason of this definition, upon conviction and being sentenced to a term of imprisonment on the first and third charges he was sentenced as a serious sexual offender. That the Parliament of the State of Victoria has seen fit to specifically classify such offending as that of a serious sexual offender in the way it has, also reflects the gravity with which the legislature views such conduct. There can be no other conclusion than it is serious.
The respondent contends, and the Tribunal agrees that the applicant’s offending, as described above, is a sexual crime within the meaning of paragraph 8.1.1 (1) (a) i of Direction 110. As such, they are the types of crimes or conduct that are viewed very seriously by the Australian Government in the Australian community.
Paragraph 8.1.1 (1) (c) of Direction 110 specifies that decision-makers must have regard to the sentence imposed on the applicant. A significant term of imprisonment was imposed on the applicant being a total effective sentence of 3 years and 10 months with a non-parole period of 2 years and 2 months. To deprive someone of their liberty is highly significant. Imposing a custodial sentence is never done by a court lightly. As is sometimes observed liberty of the subject in the common law world is paramount. As is frequently contended in cases of this kind, imposing a sentence of imprisonment upon an offender is the last resort in the sentencing hierarchy. It reflects the intentions of Parliament, expectations of the community and the view taken by sentencing courts that significant offending is appropriately punished. It does, as contended for by the respondent, reflect the objective seriousness and gravity of what the applicant did.
There is another aspect that arises from the imposition of a custodial sentence on the applicant that should be considered and was touched on by the sentencing judge in his Reasons for Sentence. The judge acknowledged that the applicant would face onerous conditions in custody. That arose for a number of reasons. They included the applicant’s relative youthfulness, small stature, cultural background and sexual orientation. When he was remanded in custody prior to the imposition of the sentence, the judge recorded that he was immediately targeted by inmates. This was due to his size, faith and sexuality. It was also noted by the judge that he had been bullied and physically assaulted. His personal food items had been stolen from him on a frequent basis. Despite being a strict Muslim, he had been threatened, then prevented by other inmates of Islamic faith from offering prayers in the prison mosque due to his sexuality. This ultimately resulted in him being moved to a protection unit. Later on, he was moved yet again to another protection unit which housed older inmates which led to an improvement in the day-to-day conditions of imprisonment experienced by him.
Notwithstanding the improvement in conditions, the Tribunal acknowledges that conditions for him as an inmate of a prison will be more difficult than someone of a different background and sexuality. Particularly someone of a more conventional or experienced criminal background who would be more likely to fit in with the criminal milieu of a prison. However, as will be canvassed later in another section of these reasons, the applicant has adapted remarkably well in all the circumstances to the conditions of the Hopkins Correctional Centre where he is presently an inmate. This is to his credit.
As for the impact of the applicant’s offending on his victims, no victim impact statements were produced to the court at the applicant’s plea hearing. The sentencing judge observed however, that the two victims were shocked by the applicant’s conduct and no doubt would have been distressed. He considered that this was made plain by the victims’ immediate complaints to family and to the police. One would have to observe also that the shock and distress experienced by the victims of the applicant’s offending is also manifested by the fact that they made very prompt complaints to the police shortly after the offending occurred. Indeed, the complaints to the police were made approximately 2 hours after the relevant offending.
Under paragraph 8.1.1 (1) (e) of Direction 110 the Tribunal is obliged to have regard to the frequency of the applicant’s offending and/or whether there is any trend of increasing seriousness. The applicant’s offending was confined to two separate days of 10 and 12 March 2022. He had no criminal record prior to that time and has not offended since. There was not a trend of increasing seriousness as the most serious charge for which he was convicted, namely rape by compelling sexual penetration, occurred during the first incident or massage that he performed on 10 March 2022. The two subsequent convictions which arose from events that occurred on 12 March 2022 when he performed a massage on another client were for sexual assaults.
Paragraph 8.1.1 (1) (f) of Direction 110 also requires the Tribunal as decision-maker to consider the cumulative effect of repeated offending. There was really no evidence before the Tribunal that enables an accurate assessment of this type to be undertaken. This is particularly as the fact that the offences committed by the applicant arose out of two fact situations when he performed massages on customers for reward. One can of course point to effects such as the diversion of police, court, prosecutorial and custodial services that, as a matter of course, are involved in the criminal justice processes that the applicant experienced.
On another note, when considering the cumulative effect of the applicant’s offending one must, as was apparent from the evidence given by him and others during the hearing of the application, take into account the significant and almost devastating effects of it on his husband Mr Johnson. It has had a profound and lasting effect on him. Mr Johnson’s evidence on this question was compelling. That evidence was corroborated to a large degree by other witnesses who gave evidence at the hearing of the application. One would have to observe that it is to his credit that he has stood by the applicant throughout the relatively lengthy ordeal he has faced as the criminal justice processes occurred. It should also be observed that Mr Johnson’s evidence concerning his abiding love and support for the applicant was also extremely moving.
Given the matters outlined above the Tribunal can only conclude that the applicant’s offending must be viewed very seriously and therefore is a significant factor weighing against revocation of the mandatory cancellation of the visa.
Paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2 (2) of Direction 110 provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen reoffending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm to individuals or the Australian community
The respondent contends that if the applicant were to reoffend by committing further sexual offences, the nature of the harm that may result potentially includes physical and psychological harm. Therefore, it is submitted that adopting the language of the last sentence in paragraph 8.1.2 of Direction 110, any risk that such offending may be repeated is unacceptable.
The applicant’s response to this contention on the part of the respondent is to assert that such a characterisation of an ongoing community risk is said to overstate “the evidentiary basis for inferring continuing harm”. Reference was then made to an article by Davies & Bartels “The Use of Victim Impact Statements in Sexual Offence Sentencing: A Critique of Judicial Practice”.[8] Relying upon this article it is contended that the assessment of the nature of the harm to individuals should be undertaken by reference to what are described as “judicial findings and agreed facts” rather than assumptions based on absent victim statements.
[8] (2021) 45 Crim LJ 168.
The Tribunal cannot accept the applicant’s contention on this question. Whether victim impact statements were produced or not, it is submitted is beside the point. What the Tribunal is required to do is to undertake the assessment cast upon it by the language contained in paragraph 8.1.2 (2) (a) of Direction 110. That assessment of further criminal conduct will almost invariably be undertaken by reference to an applicant’s prior offending. As was observed by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo in many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past, because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.[9]
[9] (1997) 191 CLR 559 at 575.
The Davies & Bartels article reached conclusions about the use of victim impact statements in the courts and concluded that victims respond differently and unpredictably to remarks of sentencing judges which make reference to such statements. It noted that while some victims were very satisfied with judicial acknowledgement that implicitly met their needs a vindication validation invoice, other victims felt that the detailed acknowledgement in their cases either too little or too much.
Of course, this does not in any way mean that that the applicant is likely to engage in further criminal offending, that is a different question not prescribed by the relevant paragraph of Direction 110. It requires an assessment of the nature of harm to individuals or the Australian community should the applicant reoffend. Therefore, the Tribunal accepts the contention of the respondent as to the nature of the harm that would result were the applicant to reoffend, includes physical and psychological harm to individuals or the Australian community.
Such an assessment is not based upon the absence of any victim impact statements concerning the applicant’s offending. It is grounded on the convictions for the relevant offences concerned. They are findings as to what has occurred in the past as established by the Reasons for Sentence of the sentencing judge in the County Court of Victoria and also the contents of the “Summary of Prosecution Opening”, the contents of which were carefully put to the applicant in cross examination, and which in most essential parts he readily agreed were accurate.[10] Additionally, it was relied upon by the sentencing judge and agreed to by the applicant’s lawyers at the plea hearing. This is an admission. The applicant is bound by such an admission.
[10] The Summary of Prosecution Opening is at page 24 of the Supplementary "G" documents.
Remorse and insight into offending
The sentencing judge touched on the topic of remorse on the part of the applicant. He accepted that the applicant’s late pleas of guilty, along with expressions of contrition that he made to several referees (his written references were before the court) demonstrates some remorse.
The applicant in several documents that were in evidence before the Tribunal, such as the Personal Circumstances Form completed by him, has expressed remorse for his offending. He has highlighted the fact that prior to the offences occurring in both Indonesia and Australia he had no criminal record. This is acknowledged. He also stated that the experience of dealing with the criminal justice system and its processes, which took approximately two years, together with his subsequent imprisonment have caused him to reflect deeply on what he did. He recognises that his offending has hurt people and caused them pain. These were of course his victims, but also his husband to whom he is deeply committed. He recognises that the stress caused to his husband has been significant and caused his mental health to suffer significantly.
The applicant also says that he has taken full responsibility for his actions. He explained this in several ways, particularly when giving his oral evidence. He consistently stated that what he did was wrong, he knew it was wrong and has learned from his experiences. This very much included his exposure to the criminal justice and corrections systems. The applicant also emphasised that in terms of his gaining an insight into his offending he has learned very much about the meaning of consent, respectful relationships and the law in Australia. He also emphasised that the punishment imposed upon him, which is a substantial term of imprisonment, has caused him to deeply reflect on his actions.
The applicant’s evidence on his remorse and the insight he has gained into his offending was corroborated by others who gave evidence before the Tribunal, both by way of statements and from the witness box.[11] They all emphasised in various ways the deep process of reflection that the applicant has undergone since he was charged, convicted and sentenced. They emphasised that he understood what he did was wrong, was deeply sorry for it and took accountability for his actions. It was also emphasised by such witnesses that he had developed a greater self-awareness of a variety of matters including the circumstances giving rise to his offending and its consequences.
[11] Apart from the applicant's husband Mr Johnson, there was evidence from Ms Murch, Mr Gildea and Ms Gildea. Amongst other things, they gave evidence about the applicant's enduring qualities as a person and the deep reflection he has undergone as a result of being charged, convicted and sentenced of the crimes. In various ways they were adamant that the applicant is deeply remorseful for his offending and gained appropriate insight into it, and why it was wrong.
Those other witnesses of course included his husband who stated that whilst none of what occurred could be undone, nonetheless the applicant recognises that he has made a costly error of judgement and is paying for his actions. He confirmed the applicant is deeply remorseful for his actions, clearly has gained insight into his offending and is mindful of the pain he has caused not only him as his husband, but others who have been close to him and supported him over the years both in Bali and in Australia.
Ms Murch gave evidence which corroborated the applicant’s evidence. She has known him for approximately six years. She stated that she attended most of his court hearings as a supporter. She believes that he is remorseful, has gained appropriate insight into his offending and deeply regrets what he has done. Additionally, Ms Murch considers that the applicant recognises the trauma he has caused not only his husband but other close friends both in Australia and Bali. By reason of this fact, she considers he has learned some deep, painful and necessary lessons. He has in her opinion come to terms with the gravity and nature of his offending.
The respondent submitted in closing addresses to the Tribunal that the applicant only had limited insight into his offending. The foundation or platform for such a submission arose from the responses of the applicant to questions put to him in cross examination about the contents of the Summary of Prosecution Opening that was tendered to the sentencing judge in the County Court of Victoria. Those questions evoked responses from the applicant where he denied certain facts contained in that document. He even went so far as to say with respect to the facts giving rise to the offences committed against the first victim, there was a consensual element to it.
Whilst one might be persuaded to accept that this response by the applicant was indicative of someone who was not genuinely remorseful or had not gained an appropriate level of insight into their offending, the Tribunal does not accept that this is the case with the applicant. It is not uncommon for Summaries of Prosecution Openings to be disputed by the defendant for many reasons. It should be observed that in this case the applicant’s evidence was that he simply could not afford to allow the prosecution of him to go to a jury trial as he and his husband did not have the money to fund it. It was corroborated by his husband. This is understandable. In cross examination he conceded most of the contents of the prosecution summary. He pleaded guilty and was sentenced. The Tribunal accepts not only the evidence of the applicant but the other witnesses that the applicant’s remorse and insight into his offending is genuine and has arisen from the deep process of reflection that he has engaged in. It should be noted that this process as included lengthy discussions over several years not only with his husband but the other witnesses who gave evidence on his behalf. That evidence was not challenged when they were in the witness box. It is accepted by the Tribunal.
Rehabilitation
An appropriate starting point in assessing the applicant’s prospects for rehabilitation is to refer to the sentencing judge’s observations on this question.[12] He reached the conclusion that the applicant’s prospects of rehabilitation were good. It was noted by him that in reaching such a conclusion there was no expert psychological material before him. Nor was there any expert psychological material before the Tribunal at the hearing of this application, which would have been of assistance. However, he identified several other relevant factors. They included that since his arrest in March 2022 he continued being productive and working full-time for two years until he was remanded in custody. The applicant had not reoffended and there were no matters outstanding. Additionally, there was as described by the judge, the applicant’s progress on bail, his lack of prior criminal history, no substance use issues, his current support network in Australia and what he described as the salutary impact of custody in onerous conditions.
[12] G4, 50 at [55].
It is quite apparent that since being taken into custody in the early part of 2024 the applicant has embarked upon a committed path of rehabilitation. The steps he has taken towards rehabilitation is multifaceted. The evidence before the Tribunal, particularly in prison file notes prepared by the applicant’s caseworkers and supervising prison officers reveal him to be a model prisoner. Certainly, since his arrival at the Hopkins Correctional Centre he has adapted to the alien environment of a prison particularly well. A large volume of documentation concerning the applicant’s time in the prison system was produced to the Tribunal in response to a summons that was served. That material was included in the Supplementary “G” documents.
Several of the prison File Notes included in the supplementary “G” documents were highlighted by Ms Murch in her closing submissions to the Tribunal.[13] They have been read and considered by the Tribunal.
[13] Supplementary "G" documents pages 108, 112, 113, 115, 116, 120, 124, 134 and 135.
Whilst an inmate at the Hopkins Correctional Centre he has completed several courses and is said by prison officers to be keen to continue to develop his skills and education. Those courses are a Certificate 1 in Skills for Vocational Pathways, Certificate 1 in General Education for Adults (introductory) a two-hour module offered by Relationships Australia, “Learning for Life,[14] a further two-hour module entitled “Adapt”[15] and another two-hour module entitled “Take Stock A”.[16] (These are part of the “ATLAS” educational program offered in the prison system which the applicant has enthusiastically availed himself of. He has completed from an examination of the records, ATLAS Modules 1-5.) Although not an issue for him, he has also signed up for and completed Drug and Alcohol programs offered by the prison. Additionally, the applicant through Federation University completed a course of “Participate in workplace safety arrangements”.[17] He is learning English as a second language in that prison also. It is apparent that the applicant is undertaking these courses at every available opportunity so as to not only rehabilitate himself, but to maximise his prospects of returning to gainful employment if he is released into the community.
[14] G14, 162.
[15] G14, 163.
[16] G14, 164.
[17] G14, 165.
There is another feature of the applicant’s participation in prison life that emerged from an examination of the prison File Notes. That is that he has regularly participated in various Muslim observances including the Muslim Prayer Service and the EID Celebration. From what the Tribunal can deduce from the material, it appears that he has integrated well with other prisoners of the Muslim faith and is able to fully participate in religious observances with them.
It should be observed that there was in evidence a Memorandum from a prison officer at the Hopkins Correctional Centre dated 1 October 2024.[18] It is fair to say that the memorandum provides an extremely favourable report on the applicant and his qualities as a prisoner at that facility. It noted that the unit staff reported the applicant is a social prisoner and his behaviour has been polite and compliant. When not engaged in work or education the applicant is said to spend his recreation time socialising, watching television or going for walks. He regularly attends the prison gym and keeps himself extremely fit. In terms of employment, the Memorandum noted the applicant works in the kitchen laundry and consistently receives good work reports. The prison staff note that he is a willing and able worker. Indeed, he has risen to 2nd in charge of the laundry, clearly enjoys such work and has forged positive relations with other prisoners in that work environment. Prior to his employment in the prison kitchen laundry, he worked in the prison timber industry, making number plates and was favourably regarded. When working in the number plate section of the prison he rose to a position in the Quality Control section checking number plates for imperfections. That he was placed in this important position is also indicative of the qualities he has as a prisoner, the confidence of the prison staff have in him, and a testament to his endeavours towards rehabilitation. Other qualities recorded in those prison File Notes include that he is always appropriately dressed, polite and respectful. His work reports have always been good, and it is observed that he works with little supervision. The applicant was described as carrying out his work to a high standard, also it was observed that he is punctual, reliable and happy to do whatever is asked of him during a shift and consistently records no issues for the prison staff.
[18] G12, 152.
Additionally, in the memorandum the prison officer observed that since his arrival at the Hopkins Correctional Centre the applicant has been in regular contact with his outside support network. He has four visitors, who have visited every weekend at the facility alternating between days. Daily contact is maintained with his husband by utilising the prison phone system.
Reference was made to the fact that the applicant has not undergone any treatment, counselling or engaged with other professionals for sexual offenders. Surprisingly, at the Hopkins Correctional Centre he is unable to enrol in such a program until approximately 12 months prior to his parole falling due. The Tribunal accepts this evidence as it has been well-known from other applications heard and determined by it that this is the case.
The applicant and his husband were also probed about whether the applicant attended any counselling or other professional services concerning his sexual offending whilst he was on bail. It was explained that he did not do so predominantly for financial reasons as he was working to pay his lawyers. This is unfortunate. The reasons of the sentencing judge in the County Court of Victoria stated that the applicant had been seeing a psychologist and had been prescribed antidepressant medication. It is not clear from those reasons whether a report from the psychologist was in evidence before him. Unfortunately, it was not canvassed in the evidence before the Tribunal at the hearing of this application. On this note, it should also be observed that in the File Notes from the Hopkins Correctional Centre it is recorded that the applicant is seeing either a psychiatric nurse and/or a psychiatrist and is taking prescribed medication. It is regrettable that some evidence from these healthcare professionals who have clearly interacted with the applicant over sometime was not able to be placed before the Tribunal. It would have been of much assistance in assessing the level of rehabilitation on the part of the applicant, not to mention the risks of him offending in the future.
Mr Johnson also explained in his evidence that enquiries had been made about obtaining an assessment from a forensic psychologist for the purposes of this application. However, he was told it would take approximately 3 ½ weeks for an appointment and another 3 ½ weeks for a report to be produced. He said, “it just wasn’t worth it”. Additionally, he emphasised the fact that the legal costs had been a significant burden upon them. This is also unfortunate.
When one assesses the totality of the evidence before the Tribunal on the question of rehabilitation, the Tribunal is quite prepared to conclude that the applicant has made very positive steps towards rehabilitation, and certainly it would appear has done so to the maximum extent possible in the circumstances, given financial constraints and latterly his imprisonment.
Risk of reoffending
In addressing this question, it is appropriate to articulate that the outset that the respondent submits the applicant remains a risk of reoffending. There are several grounds relied upon as follows:
(a)The applicant’s offending occurred during the course of his employment. He exploited victims who were vulnerable. It was a gross breach of trust.
(b)That he failed to learn from his first offence because he committed another one two days later.
(c)Initially, he denied such offending when questioned by police.
(d)He made comparatively late pleas of guilty, following a committal hearing where his victims were required to give evidence and following a sentencing indication hearing.
(e)The alleged lack of insight into his offending. Particularly the assertion that his actions were a result of cultural differences and misreading the situation.
(f)The expressions of remorse were due to his own situation rather than genuine concerns for the impact on his victims.
(g)He has not engaged in any sexual offenders programs.
(h)The lack of expert evidence concerning his risk of reoffending.
(i)Protective factors such as the support of his husband, stable accommodation, employment and his social networks did not deter him from offending, as he did.
The applicant contends that he is a very low risk of reoffending. Both he and Mr Johnson in their evidence candidly conceded that one can never say there is no risk. However, it is contended for the applicant that when one assesses all material before it, even without any expert evidence on the topic, is more probable than not that he is a low risk of reoffending.
A number of factors are relied upon by the applicant in reaching this conclusion. They will be addressed in no particular order of priority or importance.
Prior to the offending in March 2022 and since whilst he was on bail, he had not committed any other offences.
Considerable emphasis was placed by the applicant, both in his evidence and submissions lodged on his behalf, about his impeccable record when in prison and in particular the attempts that he has undertaken to rehabilitate himself. Details of this have been canvassed earlier in these reasons. They are referred to and repeated. In particular, the applicant and his representatives reiterated the favourable comments recorded in File Notes and various memoranda in evidence before the Tribunal. Reference was also made to a comparatively detailed “Review of Local Plan” from the Hopkins Correctional Centre. That document provides some detail of the progress of the applicant has made under a plan that he had formulated with his supervising case worker.[19]
[19] Supplementary "G" documents at page 155.
Another ground relied on by the applicant in support of the contention that he is a low risk of reoffending arises from the extremely strong support he has from both his husband and his network of social friends in Australia. Those friends gave evidence at the hearing of the application before the Tribunal. They were Ms Murch, Mr Gildea and Ms Gildea. It is apparent from their evidence, which was not challenged when they were in the witness box, and from the observations of them by the Tribunal, that they are extremely close to the applicant, have significant affection for him and whilst fully understanding the nature of his offending, continue unreservedly to provide him with their friendship. They were very praising of his qualities as a human being. Additionally, they emphasised that he really has expressed to them his regret for his actions, his remorse and expressed a strong desire to make sure he never reoffends again. The Tribunal accepts this evidence from those witnesses. Such evidence was not given with any element of embellishment or exaggeration.
It was also contended on the applicant’s behalf that the observations of the sentencing judge in his reasons provide support for the contention that he is a low risk of reoffending. Much has been touched on about those reasons previously. However, he did mention that the applicant’s prospects for rehabilitation were good, that he had used his time in custody productively and of course that he continued being productive by working full-time for approximately two years between the time of his arrest and subsequent sentence. These are points that are well-made.
It emerged in several ways both from the evidence given by several witnesses and in the documentary material before the Tribunal that having been imprisoned has given the applicant a monumental wake-up call or taught him a significant lesson. It seemed to the Tribunal observing him give his evidence that this has unquestionably been the case.
However, notwithstanding the factors that have been recorded above indicating that the applicant is a comparatively low risk of reoffending, there are some matters that should be addressed which do temper the Tribunal’s conclusions on the question of his risk of reoffending somewhat. In cross examination, the applicant was taken to paragraph 36 of the Summary of Prosecution Opening. Reference was made to a comment recorded in that paragraph where the applicant said words to the effect that he was sorry about what had happened earlier, but he could not control himself. He readily conceded that statement in the summary was correct. It does raise the question whether the applicant has some issue of unresolved or perhaps more accurately unmanaged sexual urges and self-control. Regrettably, it was not explored in cross examination. Without reaching a conclusion on the topic, it does pose the question whether appropriate treatment or counselling from a suitably qualified professional would address the question and enable the applicant to adopt strategies to avoid such temptations in the future.
Reference should also be made to any explanation offered by the applicant for his offending. This was also not completely canvassed in cross examination. In his Personal Circumstances Form, Part 10 “Criminal History and Risk of Reoffending”, the applicant stated, amongst other things, “I am deeply sorry for the pain I have caused anyone involved from my offending. I had not been in Australia long and because of cultural differences I misread the situation and wanted to please.”[20]
[20] G8, 72.
In a letter to the delegate of 6 September 2024, he identified nine factors which he believed played a part in him misreading the situation that led to his offending. He then stated, “I believe these played a part in misreading the situation that led to my offending. It was a big error of judgement that I deeply regret, and it is not my character to hurt people.”[21] In that letter he did not refer to “cultural differences”. In the witness box he adopted this statement and said he agreed that the nine factors were explanation for or an accurate characterisation of his offending.
[21] G9, 89.
In submissions made to the sentencing judge at his plea hearing, nowhere was it submitted that an explanation or reason for his offending was due to “cultural differences”. At the plea hearing the applicant was represented by competent and experienced counsel. One would have expected that if this were the case, an appropriate submission to that effect would have been made to the judge.
With respect to the nine factors identified in the applicant’s letter to the delegate of 6 September 2024, which was referred to earlier, whilst details of each of them were referred to in submissions before the sentencing judge such submissions concerned the applicant’s “Personal circumstances” as a relevant sentencing factor, and a factor in mitigation, they were not identified as playing a part in misreading the situation or as an explanation for his offending as contended in that letter to the delegate. Once again, were they to be relied upon in that way one would have expected that experienced and competent counsel acting for the applicant would have made an appropriate submission in those terms.
Therefore, the Tribunal concludes that insofar as the applicant in his Personal Circumstances Form contended that his offending arose in some way because of cultural differences, or by reason of the 9 other factors identified in his letter to the delegate, such contentions demonstrate a degree of exaggeration, embellishment or reconstruction.
The Tribunal is persuaded that on the preponderance of the evidence that the applicant is a comparatively low risk of reoffending. It acknowledges the contentions of the respondent. However, it has reached different conclusions from those advanced by the respondent on several matters. Those conclusions have already been expressed above. It does accept that the applicant has gained insight, and an appropriate level of insight into his offending. Additionally, it considers the applicant’s expressions of remorse were genuine. As for the relatively late entry of a guilty plea, the Tribunal is not unduly critical of the applicant for this, as it is a frequent occurrence in the criminal law processes. Particularly so with sexual offences. There was clearly some level of negotiation between the prosecution and the defence to achieve the outcome concerned. This is understandable. At the end of the day, as the sentencing judge observed, he was entitled to credit for his pleas of guilty and that an effort was made to resolve the matter just prior to the commencement of the committal hearing. Eventually the matter was resolved that culminated in the guilty pleas concerned. The judge rightly noted that in doing so the applicant facilitated the course of justice and had taken responsibility for his actions. He saved the community the time and expense of the trial. Further, the victims are spared the distressing experience of having to give evidence again.
Relevantly, the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs held that in deciding whether there is another reason to revoke the mandatory cancellation of a visa pursuant to s 501CA (4) (b) (ii) of the Act, where the applicant remains free to apply for a protection visa under the Act:
(a)The decision-maker is required to read, identify, understand and evaluate the applicant’s representations made in response to the invitation issued to him under s 501CA (3) (b) that raised a potential breach of Australia’s international non-refoulement obligations;
(b)Australia’s international non-refoulement obligations unenacted in Australia are not mandatory relevant considerations; and
(c)To the extent Australia’s international non-refoulement obligations are given effect in the Act, one available outcome for the decision-maker is to defer assessment of whether the applicant is owed those non-refoulement obligations on the basis that it is open to them to apply for a protection visa under the Act.[39]
[39] (2022) 275 CLR 582 at [9].
In deciding how to address this other consideration, the Tribunal has comparatively limited material before it concerning the risk of the specific type of harm that the applicant would face if he was returned to Indonesia, and the risk of that specific type of harm arising. On the material before it, it seems unlikely that the applicant would be tortured and killed as he contended in his Personal Circumstances Form referred to above. As for other specific types of harm including societal discrimination, discrimination with respect to the provision of healthcare social services and housing, participation in the workforce in the broader community, there must be doubts.
Certainly, as was evident from the report of Dr Baz referred to earlier, when the applicant was in Bali, he had access to appropriate medical treatment and medication for his HIV condition. It seems however, more probable than not that access to appropriate medical treatment and medication for someone with an HIV condition is likely to vary throughout Indonesia. Bali, which has significant international influences by reason of it being a well-known tourist destination and the fact that Balinese people are of a different religion than to other parts of Indonesia may well be contributing factors to the better standards of access to appropriate medical treatment and medication for people with an HIV condition.
As for other potential sources of societal discrimination and discrimination with respect to social services, housing and employment, one would observe that from the applicant’s evidence after he moved to Bali, he was able to obtain regular employment and experience a reasonable standard of living when compared with those enjoyed by other members of the general Balinese population.
It should be repeated that in a limited setting such as this, which is an expedited hearing, the task of the Tribunal is difficult. On the material before the Tribunal, as scant as it is, there are significant barriers to reaching a concluded view on the topic. In these circumstances the Tribunal considers that it should defer further consideration of whether the applicant is owed any international non-refoulement obligations in accordance with the decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home affairs. It is open to the applicant to apply for a protection visa in the event that the Tribunal does not revoke the mandatory cancellation of the visa. Such an application would, as the respondent contends, involve a more comprehensive assessment of whether he is owed protection obligations. It would enable him to place before the decision-maker far more extensive material that would enable a properly informed decision to be reached.
By reason of the Tribunal deferring further consideration of whether the applicant is owed any international non-refoulement obligations, neutral weight will be applied to this other consideration.
Paragraph 9.2 of Direction 110 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider 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.
As previously noted, the applicant is presently 31 years of age having been born in May 1994.
As the applicant lived in Indonesia until the age of 27 it is unlikely that there will be significant language or cultural barriers. It should be recalled that the applicant lived for some years in Bali. During his time there, he was able to establish himself reasonably well with regular employment. It appears he had a reasonable standard of living and social network there. Were he to return to Indonesia and settle in Bali there does not, on the material before the Tribunal appear to be any reason why he could not re-establish himself there. Being in a same-sex marriage in Bali may not be as problematic in terms of experiencing cultural barriers as might occur in other parts of Indonesia. As for other parts of Indonesia, that could be more problematic as a gay Muslim man. This difficulty could also be amplified by reason of the fact he is married and such marriage being one of a same-sex couple, is not recognised in Indonesia. To that extent, there would be a cultural barrier of some significance.
Reference has already been made in several places earlier in these reasons concerning the applicant’s HIV condition. Those matters are referred to and repeated. The report of Dr Baz, an Occupational Physician, is also relevant to the application of this other consideration. Her report revealed that upon his diagnosis with HIV in April 2019 the applicant was treated under the care of Dr Yogi and a medical clinic in Denpasar, Bali. From her report, it is apparent that the applicant was able to access a good standard of medical care from his treating practitioners and appropriate medication for his condition in Bali. She also reported in the section of her report headed “Assessment” that whilst the applicant had HIV positive status, it had been treated with effective antiviral control medication. She described him as having no symptoms and reporting otherwise excellent health, leading an active independent lifestyle. Certainly, if the applicant were to return to Bali, there seems no reason why such access to treating medical practitioners and appropriate medication could not be resumed. With respect to potential access to such treatment and medication in other parts of Indonesia, on the material before the Tribunal, it is more difficult to assess. However, it would seem more probable than not, that access to appropriately qualified medical practitioners and the requisite medication could be obtained upon making appropriate investigations and enquiries.
However, the social stigma that the applicant may face as an HIV positive, married gay male are not underestimated. The strong social stigma towards people who are HIV positive in Indonesia, as considered earlier in the DFAT report, is acknowledged. It is almost certainly likely to be an impediment that he may face if removed from Australia to Indonesia. Such strong social stigma is particularly likely to be experienced if he were to return to parts of Indonesia other than Bali, perhaps Jakarta where he previously lived and where his mother resides.
In terms of other aspects his health, the evidence before the Tribunal indicates that he has for some time experienced mental health issues. There was in evidence letters from a counsellor at the Melbourne Sexual Health Centre[40] and a general practitioner who had seen him in Bacchus Marsh.[41] They both refer to the applicant as most likely suffering from some form of PTSD and anxiety. The general practitioner had prescribed an anti-anxiety medication called “Escitalopram” 10mg daily. It is not altogether certain what access the applicant would have to specialist mental health treatment from an appropriately qualified professional were he returned to Indonesia. However, it would appear that he would have access to such specialist medical providers for mental health issues as is generally available to other citizens in Indonesia.
[40] G10, 132.
[41] G10, 133.
As for any social support that may be available to the applicant were he to return to Indonesia, reference should be made to his family situation there. His father passed away some years ago. His mother and an older sister continue to reside there. Unfortunately, the applicant’s evidence was that when his family realised that he was gay they disowned and disinherited him. He has had no support from his family in Indonesia and does not anticipate that he would be likely to receive any were he to return there. When he was rejected by his family by reason of being gay, he moved to Bali and started his life afresh with apparently nothing.
The applicant explained that he speaks with his mother occasionally, but it is extremely difficult as she has never accepted the fact that he is gay. They have also not accepted that he is married to a man and have rejected his relationship with Mr Johnson. His evidence was that the view of his mother, and his other family members, is that his being gay and the lifestyle he leads, including his marriage to Mr Johnson, is against both “Allah and Islam”. This attitude on the part of his family also reflects the reality that same-sex relationships, let alone marriages, are not recognised in Indonesia. Understandably, this alienation from his family has been very difficult for him to deal with, and has clearly caused him significant distress, which is acknowledged.
To his credit, there was evidence that Mr Johnson has kept in touch with the applicant’s mother in Jakarta from time to time and keeps her appraised of how the applicant is faring from time to time, including serving his term of imprisonment.
In terms of impediments there is another dimension to the question that should be addressed. If the applicant is returned to Indonesia, there is the question of what his husband might do. His husband has significant ties to Australia which would make it very difficult for him to join the applicant in Indonesia. There are of course his elderly parents who have a significant degree of dependency upon him for various forms of support. He also has his adult children. The applicant’s husband is also self-employed running a consulting business and as an author. For these reasons it would be extremely difficult for his husband to join him.
Therefore, if the applicant is returned to Indonesia without his husband, it does raise the prospect, as contended for by the applicant, that it will in effect force the dismantling of their marriage or alternatively, bring it to an end. The Tribunal observes that having had the opportunity to consider the material before it, the oral evidence given by both the applicant, his husband and the other witnesses previously mentioned, that it has no doubt the relationship between the applicant and his husband is real, deep and abiding. They clearly have deep affection and love for one another. If the applicant is returned to Indonesia on his own there will be devastating emotional consequences for both of them, which are acknowledged. The Tribunal considers this is an impediment that must be taken into account.
The respondent contends that limited weight should be given to this other consideration. The Tribunal cannot agree with this contention. There are several reasons for this.
Those reasons have been articulated earlier in the matters articulated above with respect to this other consideration. He would face significant impediments were he returned to Indonesia. In summary, they include:
(a)That he is a gay Muslim male;
(b)He is HIV positive and is likely to be subjected to strong social stigma by reason of this fact;
(c)His mental health problems;
(d)He is in a same-sex marriage, which is not recognised in Indonesia;
(e)That he has been disowned by his family in Indonesia and they do not accept his sexuality or that he is in a same-sex marriage; and
(f)Were he to return to Indonesia it would effectively be the end of his marriage, which would have a devastating impact on him.
For these reasons the Tribunal concludes that very significant weight should be placed on this other consideration in favour of revocation of the mandatory cancellation of the visa.
Paragraph 9.3 of Direction 110 – Impact on Australian business interests
There was no evidence before the Tribunal that related to this other consideration. The parties acknowledged that it was not applicable to this application. Therefore, no weight will be attached to it.
CONCLUSION
The Tribunal has attached heavy weight against revocation of the mandatory cancellation of the visa to primary consideration 8.1 of Direction 110, Protection of the Australian community, with respect to this application. It is noted that under paragraph 7, Taking the relevant considerations into account, this primary consideration is generally given greater weight than other primary considerations.
Heavy weight has also been attached to primary consideration 8.5 of Direction 110, Expectations of the Australian community for the reasons outlined earlier.
For the reasons explained, the Tribunal has attached moderate weight in favour of revocation of the mandatory cancellation of the visa with respect to primary consideration 8.3 of Direction 110, The strengths, nature and duration of ties to Australia.
Significant weight has also been attached in favour of revocation of the mandatory cancellation of the visa with respect to the other consideration 9.2 of Direction 110, Extent of impediments if removed.
The heavy weight attached to the primary considerations of the Protection of the Australian community and the Expectations of the Australian community against revocation of the mandatory cancellation of the visa cumulatively outweigh those in favour of revocation of the mandatory cancellation of the visa. This conclusion does accord with the framework within which the Tribunal as a decision-maker should approach its task which include that the safety of the Australian community is the highest priority of the Australian government and that non-citizens who have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia. As noted also, the primary consideration at paragraph 8.1 of Direction 110, Protection of the Australian community, is generally given greater weight than other primary considerations, which it is appropriate to do in this matter.
Regrettably, the applicant committed serious criminal offences within a comparatively short time after his arrival in Australia. The nature and seriousness of those offences has been articulated in detail earlier in these reasons. They included rape by compelling sexual penetration. Sexual offences under Direction 110. Also, he is a serious sexual offender within the meaning of the Sentencing Act 1991 (Vic). He was sentenced to a significant term of imprisonment. By reason of these factors the weight attached to the primary considerations against revocation of the mandatory cancellation of the visa therefore prevail over the weight attached by the Tribunal to those in favour of revocation of the mandatory cancelation for the reasons explained.
DECISION
Accordingly, by reason of the foregoing matters, the reviewable decision is affirmed.
Date of hearing:
13 and 14 August 2025
Advocates for the Applicant:
Mr Stephen Johnson and Ms Georgia Murch
Solicitors for the Respondent
Mr Jesse Slankard, Sparke Helmore Lawyers
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