TGDR and Minister for Home Affairs (Migration)

TGDR and Minister for Home Affairs (Migration) [2019] AATA 4086 (1 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4306
Re:TGDR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:1 October 2019
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under section 501CA of the Act.
......[sgd]................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation – applicant convicted of historic sexual offences – applicant fails character test – whether another reason why mandatory cancellation should be revoked – Direction 79 – protection of Australian community –best interests of minor children in Australia – strong ties to Australia – extensive impediments if returned – overall balance weighs in favour of applicant
Legislation
Migration Act 1958
Cases
Re Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; (2011) 124 ALD 68
Ata-Tipene Kennedy and Minister for Home Affairs [2019] AATA 3770
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Secondary Materials
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
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
1 October 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent under section 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class BF (Transitional) (Permanent) visa (the “visa”).
The hearing in this matter was conducted over a three-day period between 24 September and 26 September 2019. The applicant was represented by Mr John Maloney of counsel. The respondent was represented by Mr David Brown, a lawyer with the Australian Government Solicitor. The commencement of the hearing was delayed by a day due to difficulties the Tribunal had in securing the services of an appropriately qualified interpreter.
Due to this difficulty the Tribunal commenced the hearing on 24 September with the assistance of a level III qualified interpreter in the Italian language based in Sydney, who participated in the hearing which was located in Melbourne via a video-link.
During the course of the first day’s hearing, and in particular, during the applicant’s evidence, some concerns were raised by the parties in relation to the approach being adopted by the interpreter. In particular, the representatives each raised concern in relation to the fact that the interpreter appeared to be engaging in conversation in Italian with the applicant on occasion, rather than at all times providing a literal translation of the questions being put to the applicant and the answers given by the applicant.
At the commencement of the second day of the hearing, counsel for the applicant raised a heightened level of concern regarding the quality of interpretation that had been provided through the course of the first day of the hearing, and, in particular, with respect to the applicant’s evidence. The solicitor for the respondent expressed some sympathy for the concern raised by counsel for the applicant. As a consequence, the Tribunal advised the parties that, in light of the issues that had been raised, it was minded to rehear the applicant’s evidence with a new interpreter if that was what was required in order to ensure procedural fairness to the applicant.
Counsel for the applicant and the solicitor for the respondent advised the Tribunal that their concerns in relation to the interpretation services were not necessarily so great as to require the applicant’s evidence to be reheard. They jointly proposed that arrangements be made to secure an English translation of the transcript of the applicant’s evidence to enable the Tribunal to make an evaluation of the quality of the interpretation and determine whether or not a procedural fairness issue arose.
The solicitor for the respondent made arrangements to secure the translation of the transcript and provided that to the counsel for the applicant and the Tribunal in the early hours of the morning of Friday, 27 September. The counsel for the applicant and solicitor for the respondent made a joint submission on the issue which was lodged with the Tribunal before midday on Friday, 27 September. The parties jointly submitted that the translated transcript did not reveal a procedural fairness issue that required the applicant’s evidence to be reheard. However, counsel for the applicant submitted that the translated transcript did reveal some practical difficulties with the interpretation and that it considered the translated transcript to be a more reliable representation of the applicant’s actual evidence to the Tribunal. Both of the parties submitted that the Tribunal have regard to the translated transcript when considering the applicant’s evidence for the purpose of its decision.
Having reviewed the translated transcript, the Tribunal accepts that the interpretation services provided do not give rise to a procedural fairness issue that requires the applicant’s evidence to be reheard. It accepts the submission made by counsel for the applicant that there were, nonetheless, some interpretation difficulties and that the Tribunal should be very mindful of those difficulties when considering the applicant’s evidence. The Tribunal also accepts the parties’ joint submission that it should rely on the translated transcript when considering the applicant’s evidence for the purpose of its decision. The Tribunal has proceeded on this basis.
Following the issues raised by the parties in respect of the interpretation provided on the first day of hearing, the Tribunal secured the services of another interpreter, who provided interpreting services for the balance of the hearing. No further issues regarding the translation services were raised by either party.
The Tribunal wishes to express its sincere gratitude to the efforts made by both of the parties to enable the Tribunal to make an appropriate evaluation on this issue. This is particularly so given the compressed timeframe within which the parties and the Tribunal have had to deal with this matter. In accordance with the 84-day rule, the Tribunal has been required to finalise its decision in this matter by no later than 1 October 2019.
BACKGROUND
General background
The applicant is a 76-year-old Italian national who was born in Capoliveri, Italy. The applicant first arrived in Australia in February 1968 at the age of 24. The applicant is married to his wife TM, and has three adult children and six minor grandchildren. The applicant also has a sister and brother who reside in Australia, and another sister who currently resides in Italy. His mother also previously migrated to Australia and lived here for some time. However, she has since passed away.
Prior to migrating to Australia the applicant lived with his parents and siblings in Capoliveri. He left school at age 11 to undertake an apprenticeship as a baker before commencing work in the iron mines following the death of his father when the applicant was 18 years of age. After migrating to Australia the applicant lived with his older married sister and her family, and found work as a baker. He met TM in 1972 and they married in 1973 and shortly afterwards moved into their own house. He worked as a baker throughout his adult working life, and owned and operated a number of bakeries during that period of time.
The applicant has travelled back to Italy on three separate occasions. One of his trips back to Italy was for a period of approximately six months. The other two trips were for short-term visits. Otherwise, the applicant has resided in Australia since his arrival here in 1968.
Criminal history
In April 2018 the applicant was convicted of three charges of “unlawfully/indecently assaulted a girl”, which were historical offences committed in 1973 and 1974 against his niece, the daughter of the sister with whom he had lived on his arrival in Australia. The applicant entered a plea of guilty in respect of the offending. The victim was aged between 10 and 11 and the applicant was aged between 30 and 31 at the time of the offending. In addition, there were a number of other “uncharged acts” of unlawful/indecent assault which were said to have occurred against the same victim and which were accepted as part of the applicant’s guilty plea, although they did not result in further charges being laid. The further uncharged acts were said to have occurred between 1975 and 1976. The applicant was sentenced to a term of 2 ½ years’ imprisonment for his convictions, with 16 months of that sentence suspended. The details of the applicant’s criminal record are set out in his National Police Certificate.
There is no evidence before the Tribunal of the applicant having committed any other offence of any kind.
In the course of giving his evidence to the Tribunal, the applicant denied having committed the offences that form the basis of his convictions. This is notwithstanding that the applicant pleaded guilty to the offences and has made other admissions in relation to his offending to various parties, including the victim herself. The Tribunal addresses this issue in further detail later in these reasons.
The Tribunal does not accept the applicant’s denial of guilt for his offending. As is well established, it would be entirely inappropriate for this Tribunal to look behind the applicant’s convictions or to seek to re-evaluate in any way the essential facts on which those convictions were based.[1] Accordingly, the Tribunal is satisfied that the National Police Certificate accurately reflects the applicant’s criminal record.
[1] See HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
Cancellation decision
On 18 May 2018 the applicant’s visa was cancelled under section 501(3A) of the Act on the basis that he did not pass the character test under section 501(6)(a) as a result of having a substantial criminal record.
The applicant was issued with a letter from the respondent inviting him to make submissions in relation to the cancellation decision. The applicant subsequently made representations under section 501CA(4)(a) of the Act seeking a revocation of the decision.
On 8 July 2019 a delegate of the respondent decided not to revoke the cancellation of the applicant’s visa.
On 17 July 2019 the applicant lodged an application for review of that decision, which is the subject of the application currently before the Tribunal.
ISSUE
There is no issue between the parties regarding the accuracy of the applicant’s criminal record as set out in the National Police Certificate. Nor is there any dispute that the applicant does not pass the character test under section 501(6)(a) as a result of having a substantial criminal record. The Tribunal is satisfied on each of these points.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the cancellation decision, having regard to all relevant considerations, including those set out in Part C of Direction No. 79, which was made under section 499 of the Act on 20 December 2018 (the “Direction”).
CONTENTIONS AND CONSIDERATION
The Preamble to the Direction specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(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.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that 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.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations, and that one or more primary considerations may outweigh other primary considerations. However, it is now well established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[2]
Primary Considerations
[2] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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. 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.
Paragraph 13.1(2) of the Direction states 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.
The Tribunal notes that the Direction specifically states in the Principles, at paragraph 6.3(3), that:
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 forfeit the privilege of staying in Australia.
Moreover, at paragraph 13.1.1(1) the Direction states 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 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;
In considering the risk to the Australian community, the Tribunal acknowledges that the Direction provides that it 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).
As noted above, the Direction states specifically that violent or sexual offending against women or children is to be viewed very seriously and that a person who commits such a crime should generally expect to forfeit the privilege of staying in Australia.
There is no question in the mind of the Tribunal that the applicant’s criminal convictions involve offending which is extremely serious. The three convictions involve the applicant forcing his niece to engage in oral sex, rubbing his genitals against her body and masturbating against her leg. The victim was very young and vulnerable at the time of the offending.
This conclusion is reinforced by the contents of the victim impact statement prepared by the victim for the applicant’s sentencing. The victim’s statement describes in some detail the profound and long-term consequences she has suffered as a consequence of the applicant’s offending.
This conclusion is further reinforced by the sentencing comments of the sentencing Judge who describes the applicant’s offending as involving a breach of trust and taking advantage of his victim’s vulnerability. The sentencing Judge found that the applicant’s offending involved a level of psychological coercion as well as an abuse of power. The sentencing Judge also found the “objective gravity” of the offending and the applicant’s “moral culpability” to be high.
There is also no question in the mind of the Tribunal that should the applicant reoffend again in a similar manner it would result in very significant harm to members of the Australian community.
The Tribunal now turns to its assessment of the risk of the applicant re-offending.
Counsel for the applicant contends that the applicant poses an insignificant risk of re-offending. In support of this conclusion he noted that:
(a)the applicant is of advanced age;
(b)the applicant is in declining health;
(c)the applicant has only ever offended against one victim;
(d)the applicant has not re-offended in more than 42 years;
(e)the applicant has the love and support of a strong network of family and friends, all of whom are committed to ensuring that he is able to remain in Australia;
(f)specific protections have been put in place in relation to the applicant’s ongoing engagement with his grandchildren as a result of the intervention of the Department of Health and Human Services (“DHHS”) as well as through the applicant’s inclusion on the Sex Offenders Register;
(g)the applicant, as well as his family members, have all expressed a strong commitment to ensuring that the protections imposed on the applicant are fully adhered to;
(h)the applicant’s family members have each testified of their strong belief that the applicant poses no risk of re-offending;
(i)forensic psychologist, Mr Jeffrey Cummins, has concluded in his expert report that the risk of the applicant re-offending in a similar manner is low.

The solicitor for the respondent contends that the applicant continues to pose an ongoing risk to the Australian community which is unacceptable. In support of this contention he noted:
(a)the very serious nature of the applicant’s prior offending and the serious harm that it would cause the Australian community should it be repeated;
(b)the fact that the applicant denied his offending in his evidence before the Tribunal; and
(c)that, in light of the applicant’s denial, the Tribunal should place no weight on the conclusions of Mr Cummins in relation to the risk of the applicant re-offending.
While giving evidence before the Tribunal the applicant denied the offending that gave rise to his convictions and also denied that he had ever engaged in sexual offending against the victim. The applicant told the Tribunal that he may have touched the applicant inappropriately. However, any such touching was inadvertent and not of a sexual nature.
However the applicant’s position on his offending has been quite inconsistent and confused. For example, at one point in his evidence to the Tribunal the applicant attested to the truth of a written statement that included an acknowledgement that he had inappropriately engaged in a level of sexual offending against his victim. In that statement the applicant expressed remorse for his offending and empathy for his victim. In addition, in the early part of his evidence to the Tribunal, the applicant indicated remorse and regret for having acted inappropriately towards the victim.
The applicant has also been inconsistent regarding his offending over time. For example, the evidence before the Tribunal makes clear that the applicant has made certain admissions to the victim as well as other family members regarding his offending. In addition, while the applicant denied the allegations made against him by the victim in his initial interview with the police, the applicant ultimately admitted that he had sexually assaulted the victim and those admissions led to him pleading guilty to the charges.
Furthermore, Mr Cummins confirmed that the applicant admitted he had offended against the victim when he was interviewed for the purposes of his expert report dated 20 October 2017, and that the applicant had expressed remorse and empathy for the victim.
In preparing his report Mr Cummins interviewed the applicant and also reviewed materials prepared for the purpose of the applicant’s criminal prosecution. In undertaking his assessment of the applicant Mr Cummins applied the Static-99R actuarial assessment tool as well as the Risk for Sexual Violence Protocol.
Mr Cummins noted that, despite the applicant’s acknowledgements regarding his offending at interview, he was of the view that the applicant had some difficulty in coming to terms with the full severity of his offending and that his insight into his offending was incomplete. Mr Cummins noted that it was unclear whether the applicant’s incomplete insight reflected his embarrassment, shame and guilt; or whether his difficulties were also partly related to age-related factors including memory difficulties and difficulties with emotional regulation. Mr Cummins noted that he was satisfied that the applicant clearly understood the wrongfulness of his offending. In his report, Mr Cummins concluded that in his opinion the risk of the applicant reoffending by way of committing a sexual offence against an underage person is low.
In his evidence before the Tribunal, Mr Cummins reaffirmed the assessments that he had made in his expert report. In particular, he told the Tribunal that he continued to view the risk of the applicant reoffending as being low. He noted that the applicant’s age is well beyond what is considered to be clinically significant in identifying a lower risk of re-offending. When pressed by the solicitor for the respondent as to whether or not Mr Cummins had diagnosed the applicant as being either a paedophile or hebephile, Mr Cummins told the Tribunal that he did not believe that the applicant met the diagnostic criteria for paedophilia or hebephilia, notwithstanding the fact that his offending had been in respect of a young girl. Mr Cummins explained to the Tribunal that this conclusion was based on the fact that the applicant had only ever offended against one victim, and that there was no other evidence of any kind of him either maintaining a sexual interest in another young person or having ever offended against another young person. Mr Cummins also told the Tribunal that the applicant had demonstrated signs suggesting the onset of age related emotional disinhibition, including lost memory and confusion.
When pressed by the solicitor for the respondent as to whether any of his conclusions ought be adjusted on the basis that the applicant had denied his offending, Mr Cummins indicated that he was unable to provide a specific view in relation to that matter without the opportunity to question the applicant further and properly understand the nature of his denials and make an assessment of the reasons for them. Mr Cummins told the Tribunal that there were many reasons why an applicant may engage in denial. He reiterated his evidence to the Tribunal that at interview the applicant had admitted to having sexually assaulted the victim, although he noted that the applicant had disputed specific details of his offending and also the frequency with which it had occurred.
At the hearing the Tribunal also heard evidence from a number of the applicant’s family members including his three children DM, VP, and MM, his brother-in-law SM, as well as his wife. Through the course of their evidence all of the applicant’s support witnesses described the applicant as a devoted husband, father and grandfather who is very loving and caring and particularly hard-working. All of the applicant’s support witnesses described the applicant’s offending as being inconsistent with the person that they knew. They all acknowledged the seriousness of the offending and the protections that have been put in place by DHHS. They all expressed a commitment to ensuring that the protections were fully adhered to. All of the support witnesses also expressed a strong belief that the applicant posed no threat to the Australian community and was at no risk of ever re-offending.
The applicant’s GP, Dr Maurice Vivarini, had also provided a statement to the court for the purpose of the applicant’s sentencing, advising of his opinion that the applicant presented a low risk of re-offending. The statement does not provide any substantive basis for this view other than an observation by a general practitioner who has engaged professionally with the applicant over a long period of time.
The Tribunal accepts that the conclusions in Mr Cummins report were, in part, based on the applicant’s acceptance of his offending as expressed at interview and that, in light of the applicant’s denial at the hearing, less weight should be placed on the conclusions provided by Mr Cummins in his report. However, the Tribunal does not accept that Mr Cummins’ report should be dismissed in its entirety. The Tribunal forms this view for a number of reasons. First, it is clear from his report that Mr Cummins acknowledged himself that the applicant appeared to have some difficulty accepting his offending and that his insight into his offending was incomplete. Secondly, Mr Cummins noted in his oral evidence that acceptance of offending was just one factor among a number of factors that were important in assessing risk of reoffending. He noted that the motivation for denial could be relevant and that there were any number of motives the applicant may have for denial including extreme shame and embarrassment, seeking to protect family members or other loved ones, or seeking to protect himself from reprisal in the context of a prison or detention setting.
Having considered all of the evidence before it, the Tribunal is satisfied that the applicant’s denial at the hearing is an important factor to be considered in making an assessment of his risk of reoffending. However, in weighing it as a factor, the Tribunal also acknowledges the broader inconsistency the applicant has demonstrated in relation to his acceptance of his offending including in his written statements, the admissions he has made to his victim and the prosecution, his comments to Mr Cummins and in his guilty plea. In addition, the Tribunal is satisfied that notwithstanding his denial at the hearing, the applicant has displayed an understanding that the type of conduct that led to his convictions is completely inappropriate and unacceptable. The applicant demonstrated that understanding through the course of his evidence where he frequently expressed disgust when the nature of his offending was described to him. The applicant has also displayed a similar acknowledgement in his written statements as well as in his comments to the police and Mr Cummins.
In undertaking its assessment in relation to risk there are a number of other very important factors that the Tribunal must also consider, including that:
(a)the applicant is 76 years of age;
(b)the applicant is physically frail and in declining health, even in the context of his age;
(c)the fact that the applicant’s offending was in respect of a single victim;
(d)the fact that Mr Cummins has confirmed that the applicant does not meet the diagnostic criteria for paedophilia or hebephilia;
(e)the fact that the applicant has not reoffended or committed any other offence of any kind;
(f)the significant incentive the applicant has to not re-offend given the consequences that would inevitably flow if he were to be released back into the community and re-offend;
(g)the limited exposure the applicant is likely to have to children other than his own grandchildren;
(h)the fact that protections have been put in place to regulate the applicant’s interaction with his grandchildren and that all relevant parties have agreed to the strict enforcement of those protections;
(i)the fact that all of the evidence suggests that the applicant has a very strong and healthy relationship with his four older grandchildren and that he is likely to develop a similar relationship with his two younger grandchildren who, because of his current detention, he has yet to fully establish a relationship with; and
(j)the ongoing love and support of a very strong and close family who are committed to ensuring that the applicant can remain in Australia and continue to play a very important role in their lives.
In the view of the Tribunal, when considered together, these factors are strongly suggestive of an extremely low level of risk of the applicant re-offending. In its assessment on the issue of risk, the Tribunal considers these factors to be overwhelming. In particular, given that the applicant has not re-offended in more than 42 years, it would seem extremely unlikely that the applicant would choose to do so again now, at almost 80 years of age, when there is a significant incentive for him not to do so, and when he has the benefit of all of the protections put in place and the love and support of a very strong and committed family and friendship support network.
For these reasons, the Tribunal is satisfied that it is extremely unlikely that the applicant will reoffend and that he does not represent an unacceptable risk of harm to the Australian community.
Notwithstanding this conclusion, given the very serious nature of the applicant’s prior offending, the Tribunal is of the view that the protection of the Australian community consideration weighs in favour of not revoking the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
The applicant has six minor grandchildren who are all Australian citizens and reside with their respective parents in Australia. They are LM (16), KM (13), NP (12), BP (9), EM (3) and BM (3 months).
The applicant gave evidence that he has a very strong connection to his grandchildren and maintained very close engagement with them prior to his incarceration, seeing them a number of times each week. He described enjoying playing with them, going to the park, going shopping, and just spending time with them.
The applicant noted that NP and BP live very close to the house he shared with his wife prior to his incarceration and that they regularly “popped in” for a visit. He also noted that until recently LM and KM also lived within walking distance of the house the applicant shared with his wife and that he would see them on a regular basis. The applicant noted that he had a somewhat less-developed relationship with EM, and was yet to meet BM as she was only three months old and he had not had the opportunity to do so. The applicant told the Tribunal that he looks forward to developing his relationship with both EM and BM if he is released back into the community. The applicant told the Tribunal that it was his intent, if released back into the community, to have a very strong and positive role in the lives of each of his grandchildren and that this was something that was important to him and that he very much looked forward to.
The applicant’s daughter, VP, told the Tribunal that the applicant had an extremely strong relationship with her children and that they missed him very much and wanted him to remain in Australia. VP told the Tribunal that the children would often go around to visit and would go shopping or to the park with the applicant. Both NP and BP wrote a letter of support for the applicant, in which they say:
We are writing this letter to you to let you know that our grandfather, Nonno E is a great grandfather and we miss him so much. We miss his silly Nonno jokes and magic tricks, we miss spending time with him and just miss having him around.
If he gets sent back to Italy he will have no one and we won’t have a Nonno. We won’t be able to walk to his house and see him anymore. He is the best Nonno in the world and we want him to come home. Please let Nonno E stay in Australia where he belongs.
The applicant’s son MM also gave evidence before the Tribunal and confirmed that the applicant had very positive engagement with his eldest child EM, and that while the applicant had not yet met his recently arrived baby BM, he was confident that the applicant would have a very positive engagement with her also. He told the Tribunal that he very much wanted both of his parents to be a big part of his children’s lives.
The applicant’s other son, DM, gave evidence to the Tribunal confirming that the applicant had a very strong relationship with his children, LM and KM, and that prior to his incarceration the applicant saw them on a very regular basis and had been very caring and loving towards them. DM told the Tribunal that the kids would visit their grandparents regularly and help out around the house or just have a meal together. DM also told the Tribunal that he was confident that the applicant would continue to have a very positive role in the lives of his children and that they would be devastated if the applicant had to leave Australia.
The Tribunal accepts that it would not be in the best interests of each of the grandchildren to be deprived of a close relationship with their grandfather, who the Tribunal is satisfied has a very genuine and appropriate love for them. Having heard from the applicant, his wife and his children, and having taken account of the comments made by those of the grandchildren who were able to do so, the Tribunal is satisfied the applicant is committed to playing a strong and positive role in the lives of his grandchildren should he be released back into the community. In these circumstances, the Tribunal is satisfied that it would be in the best interests of each of the grandchildren that the mandatory cancellation of the applicant’s visa be revoked.
This conclusion is qualified to a limited degree as a result of the protections that have been imposed by DHHS in relation to any engagement the applicant has with his grandchildren. The Tribunal also acknowledges that the applicant is not expected to play a parental type role in the lives of his grandchildren.
For these reasons, the best interests of minor children in Australia consideration weighs strongly in favour of a revocation of the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 13.3 (1) of the Direction provides that:
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 recently considered the case law that applies to this consideration in the case of Ata-Tipene Kennedy and Minister for Home Affairs. For the purpose of these reasons the Tribunal adopts the comments it made in that case, as follows:
37. The consideration was discussed in YNQY v Minister for Immigration and Border Protection,[3] where Mortimer J said:
[3] [2017] FCA 1466.
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.
38. More recently there have been two Federal Court cases that have given further consideration to this issue. In FYBR v Minister for Home Affairs[4] Perry J has endorsed the approach adopted by Mortimer J in YNQY. In the case of DKXY v Minister for Home Affairs[5] Griffiths J appears to have rejected the YNQY approach, or at the very least, qualified it in an important respect. In DKXY Griffith J stated that:
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. 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 …
31. As 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.
39. His Honour went onto discuss the case of Uelese v Minister for Immigration and Border Protection[6] which had been cited by Mortimer J in support of the proposition that the expectations of the Australian community consideration will invariably weigh against an applicant. Griffiths J stated that:
33. … 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 decision-maker 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.
40. It is extremely difficult to fully reconcile the reasoning in these cases. On the Tribunal’s reading of DKXY, Griffith’s J appears to provide some tacit acceptance of Mortimer J’s view that the function of the Tribunal is not to undertake an independent assessment of Australian community expectations but rather to apply the Government’s stated views of those expectations. However, Griffiths J makes an important qualification that, in applying those statements, the Tribunal must do so “in light of all the relevant circumstances which appertain to it” and, further, acknowledges that such an assessment may, in an appropriate case, “not weigh against revocation of the mandatory visa cancellation”. According to His Honour’s reasoning, having made such an assessment the Tribunal must then also go on and weigh that assessment against all of the other relevant considerations. Mortimer J’s description of the consideration as being “a kind of deeming provision” that, in substance, is “adverse to any applicant” stands in stark contrast. Given the inconsistency between the two lines of authority, pending clarification from the Full Federal Court, the Tribunal considers the reasoning in DKXY the appropriate line to follow.
[4] [2019] FCA 500
[5] [2019] FCA 495.
[6] (2016) 248 FCR 296.

In applying this consideration the Tribunal makes its assessment of the Government’s stated views regarding the expectations of the Australian community as set out in the Direction taking account of the broader circumstances of the case, noting in particular:
(a)the very serious nature of the applicant’s offending;
(b)the fact that the applicant has denied his offending at the hearing, although acknowledging the context of that denial, as described earlier on in these reasons;
(c)the applicant’s advanced age;
(d)the Tribunal’s assessment that the applicant is extremely unlikely to re-offend as discussed earlier on in these reasons;
(e)that the applicant has not re-offended in over 42 years and has not otherwise offended in his life;
(f)the impact the Tribunal’s decision may have on the applicant’s grandchildren noting that the applicant has a strong and healthy relationship with his 4 older grandchildren and is likely to establish a similar relationship with his two younger grandchildren if released back into the community;
(g)the fact that the applicant has lived in Australia for over 50 years and has established ties to Australia including strong family connections and established friendship groups here;
(h)the impact the Tribunal’s decision may have on the applicant’s wife and family as well as broader friendship groups;
(i)the contribution the applicant has made to the Australia community through his business activities over the course of his adult life, as well as the commitment he has demonstrated to making a positive contribution to his community; and
(j)the impediments that the applicant may experience on his return to Italy should the mandatory cancellation of his visa not be revoked, noting in particular his declining health and limited financial resources.
The Tribunal is satisfied that, while taking account of broader circumstances, given the very serious nature of the applicant’s offending and having due regard to the Government’s stated views, the Australian community expectations consideration weighs in favour of not revoking the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
There was no evidence before the Tribunal of any non-refoulement obligations owed to the applicant and therefore this consideration weighed neither for nor against revoking the mandatory cancellation of the visa.
Strength, nature and duration of ties
There was a substantial amount of evidence before the Tribunal in relation to the very strong ties the applicant has to Australia and the Australian community.
Having first arrived in Australia in 1968 as a 24 year old, the applicant has lived in Australia for over 50 years and very much considers Australia to be his home.
The applicant has a wife, three adult children, six grandchildren and some 18 nieces and nephews who all reside in Australia. His three adult children are all Australian citizens. In addition, the applicant has a sister and brother who also reside in Australia although he has told the Tribunal that he does not maintain contact with them. The sister residing in Australia is the mother of the victim of the offending.
The Tribunal acknowledges that the Direction provides that more weight should be given to the time a non-citizen has spent contributing positively to the Australian community.
There was evidence before the Tribunal of the very significant contribution the applicant has made to the Australian community over the course of his adult life, including through his work activities as a baker and as an owner operator of several bakeries over the course of 20 years before retiring in 1998. There was also evidence before the Tribunal of the commitment the applicant has demonstrated to being a positive member of the community including by supporting minority groups and new arrivals. For example, the applicant’s brother in law, SM, told the Tribunal that during the time the applicant lived in Swan Hill he was known for providing significant support to members of the local aboriginal community.
There was evidence before the Tribunal of the very significant impact a decision requiring the applicant to return to Italy would have on the applicant’s family.
The applicant himself described the impact a decision requiring him to return to Italy would have for him in the following terms:
I do not know what I would do without my wife, my children and my grandchildren. They are my life, my heart and my soul. I watch my children grow into respectful and law-abiding citizens of Australia and I long to be part of my grandchildren’s lives. I love and adore them very much, and want the opportunity to watch them grow and mature into young adults, and to help guide them through their quest through life.
The impact the Tribunal’s decision may have on the applicant’s grandchildren has already been dealt with above.
The applicant has been married to his wife TM for more than 46 years. TM is 69 years of age and currently resides in the house in Whittlesea she shared with the applicant prior to his incarceration.
The applicant told the Tribunal that his wife continues to visit him in detention on a regular basis and has maintained a strong level of love and support for him through his criminal prosecution and sentence. The applicant expressed serious concern for the impact being forced to return to Italy would have on his wife given her significant health issues and advancing age.
The applicant told the Tribunal that prior to his incarceration and through the course of his entire marriage he had provided significant support for his wife, and he is concerned about the impact his continuing absence would have for her should he be forced to return to Italy and she choose to stay in Australia. He also expressed significant concern about putting her in a position where she was forced to choose between supporting her husband and travelling back to Italy to live and, alternatively, abandoning him and remaining in Australia with her children and grandchildren. He noted that he believed forcing her to make this decision would break her heart and tear her apart inside.
In her evidence to the Tribunal the applicant’s wife described their marriage as a particularly close and loving one. She told the Tribunal that her husband had always been a caring and supportive husband who she had relied on in the course of their life together. She told the Tribunal that the two of them have always supported each other and that she is not sure how she will cope if the applicant were forced to return to Italy and she was to remain here in Australia.
When asked by the solicitor for the respondent whether or not she had made a decision about travelling back to Italy with the applicant should he fail in his review, or remain here in Australia with her grandchildren, TM told the Tribunal that she had not yet made a decision, and that she was not sure how she would make such a decision.
At various points in giving her evidence TM told the Tribunal that she could not possibly leave her children and grandchildren in Australia as they meant everything to her and are the reason that she continues to live out her life. At the same time TM told the Tribunal that she couldn’t bear thinking about abandoning the applicant, who she considered to be the love of her life and someone she depended on and that she supported. She told the Tribunal how can a wife abandon her husband of 46 years “like a dog”. In her statement provided to the Department, TM describes the consequence of a decision forcing her husband to return to Italy as follows:
I cannot live without my husband. My husband is everything to me. If he is forced to depart Australia, I would rather die than to choose between leaving my husband or leaving my children and grandchildren. My heart would break and I would not be able to live without either of my family members. My life is in Australia, my parents passed away in Australia and I have four sisters and three brothers here. They are all Australian citizens or permanent residents. I cannot bear being away from my home and everything I know, but at the same time I cannot bear the thought of being away from my husband. It would end our marriage if we cannot be together anymore and I would have to sever my relationship with my elderly husband if he can never return to Australia. I cannot bear the thought of growing old alone without the love of my life.
My life has been incomplete and my days have been lonely since my husband was arrested and detained. I am able to survive each day knowing that I can see him twice a week and knowing that each day that goes by is one day closer when he will be released and allowed to return home to me and our family. If I am permanently separated from my husband, my mental and physical health would deteriorate.
The applicant’s wife told the Tribunal that she continues to suffer from significant health issues including high blood pressure and lower back pain which sometimes restricts her ability to walk, and that as a consequence she needed the applicant to help her around the house and care for her. She told the Tribunal that since the applicant’s incarceration she found it very difficult to live without him and has experienced considerable grief and anxiety as a result of their separation, and believes that her mental and physical health would deteriorate if that separation were to continue for any reason.
In his evidence to the Tribunal the applicant’s eldest son, DM, told the Tribunal of the significant contribution his father had made to his life, his children’s lives and those of the broader family. He described his father as a very caring and loving man who had always been there to support him and the family. DM told the Tribunal that a decision requiring the applicant to return to Italy would destroy the family and have a devastating impact on his mother, his siblings, his children and all of the grandchildren.
In her evidence before the Tribunal the applicant’s daughter, VP, described the very special and close relationship she continues to have with her father. VP told the Tribunal that her father had always worked hard to provide for the family. VP also described the extraordinary support her mother had provided for her through her battles with cancer and in seeking to re-establish herself at work. VP told the Tribunal of the special bond her parents had for each other and noted that they would often hold hands in public. She told the Tribunal that in all her life she had never known her father to raise his voice to her mother. VP told the Tribunal of the serious impact her parents current separation has had on each of them. She described her mother as having withdrawn from the world and that the applicant had become frail and depressed. She told the Tribunal that a decision requiring the applicant to return to Italy would have a devastating impact on her, her family and the broader family and especially on her mother. VP told the Tribunal that her mother would not cope with being forced to make a choice between her children and grandchildren on the one hand and her husband of 46 years on the other. She also believed it would have a devastating impact on her father. In her letter of support provided to the Department VP describes the potential impact a decision requiring the applicant to return to Italy would have as follows:
… The thought of dad being deported has brought an immense amount of stress and pain to all of us, including my children whom are aware that he may be sent back to Italy. The possibility of dad being deported and being taken from his family, friends and life here in Australia has given dad more stress and concerns while he has been incarcerated. Taking dad away from his wife, children, grandchildren, friends, his life here in Australia will not only impact his life but all our lives as we love and adore him.
The applicant’s youngest son, MM, also gave evidence regarding the very close and loving relationship he has with his father. MM told the Tribunal that he had great respect for his father and had always been able to turn to him in difficult times. He told the Tribunal that his father was always there for him and that he had been particularly helpful in the establishment of his own business. MM told the Tribunal that a decision requiring his father to return to Italy would be devastating for him as well as the broader family. MM told the Tribunal that despite the young ages of his children and the fact that his father is yet to fully establish a relationship with them, he is very conscious of the strong and positive role his father is capable of playing in their lives and he very much looks forward to him being able to do so. In the support statement he provided to the Department MM said the following:
From when I was a young boy I can remember my father coming home smelling like flour late at night, because he always worked long hours at the bakery he owned, he worked hard and long hours and when he was home he was working in the yard to provide for my mother, brother and sister so that we had what we needed, he has always helped his friends and family without hesitation whether it be by loaning some much-needed cash (if he could spare it), helping with odd jobs or simply just being there for them in their times of need.
In his evidence to the Tribunal the applicant’s brother-in-law, SM, told the Tribunal that in his view the applicant had consistently demonstrated a loving and caring attitude towards his wife and the broader family. He noted that the applicant always supported his children and was an “extraordinary father”. SM told the Tribunal that the applicant was known for his hard work and positive attitude. SM told the Tribunal that the applicant had made a very significant contribution through the establishment and operation of his bakery businesses over the course of more than 20 years. He told the Tribunal that he had always been able to rely on the applicant to provide him with encouragement and support and that he had been an important mentor to him. He told the Tribunal that he had no doubt that a decision requiring the applicant to return to Italy would break the hearts of his sister, the applicant’s wife, and all of the applicant’s children and grandchildren.
All of the applicant’s children gave evidence regarding the very significant support the applicant provided his wife, both physically and emotionally. They gave evidence that the applicant provided physical assistance in day-to-day household chores including assisting with lifting things, doing household tasks and assisting with shopping. They gave evidence of the significant decline in the physical and mental health of TM that has occurred since the applicant’s incarceration. They all gave evidence that in the event the Tribunal decided against the applicant and he was required to return to Italy, the dilemma that their mother would face in those circumstances would be extremely difficult for her to cope with.
In the materials provided to the Department in support of the applicant’s case, there were a number of further support letters from friends of the applicant and his family, expressing their strong affection towards the applicant, the positive role he played in the lives of his family and the broader community, and their strong desire that he be able to remain in Australia.
Having considered all of the material before it, the Tribunal is satisfied that the applicant has, over the more than 50 years he has lived here, fully integrated himself into the Australian community through what can fairly be described as a very strong, close and loving support network made up of family and friends.
The Tribunal fully accepts that a decision that requires the applicant to return to Italy would have a devastating impact on that support network. In particular, the Tribunal acknowledges the impact it would have on the applicant’s wife, his children and grandchildren.
The Tribunal recognises that in the event the applicant is required to return to Italy, his wife, TM, would be placed in a very difficult position in deciding whether or not to accompany her husband back to Italy to live out the remaining portion of their lives. The Tribunal accepts that TM has not yet made a decision as to which choice she would make if that circumstance were to eventuate. Further, the Tribunal accepts that, irrespective of which choice TM might make in those circumstances, it would have a devastating and profound impact on her health and emotional well-being.
For these reasons, the Tribunal is satisfied that the strength, nature and duration of ties consideration weighs strongly in favour of a revocation of the mandatory cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
The Tribunal notes that the victim provided a victim impact statement for the purpose of the applicant’s sentencing. While the Tribunal considers it reasonable to infer that the victim would not be supportive of the applicant in this matter, there was no actual evidence before the Tribunal of the impact revocation of the cancellation of the applicant’s visa would have on his victim. In those circumstances the Tribunal places some weight on this consideration.
Extent of impediments if removed
There was evidence of significant impediments the applicant is likely to experience if the mandatory cancellation of his visa is not revoked and he is forced to return to Italy to live.
There was evidence before the Tribunal of significant ongoing health concerns that the applicant suffers, including asthma, depression, chronic obstructive airways disease, high blood pressure and hypertension. Each of the applicant’s children described the applicant as having declined significantly physically and mentally since his incarceration. They described his poor memory and the fact that he often repeated himself. The applicant himself, as well as his wife and other family members, all attested to their expectation that his health would continue to deteriorate significantly in the event that he was forced to return to Italy to live, in particular, in a circumstance where his wife did not accompany him.
There was evidence that the applicant is required to take regular medication to manage his health issues. Each of the children expressed their concern about the capacity of the applicant to take his medication as required, in the absence of his wife, should she elect to not accompany the applicant back to Italy.
Each of the applicant’s children described how much their parents were dependent on each other for both physical and emotional support. The children told the Tribunal that they did not believe that the applicant would cope without his wife.
The applicant told the Tribunal that the thought of being forced to return to Italy causes him significant anxiety and stress, to the extent that he believed he would be better off killing himself rather than seeking to live in those circumstances.
There was also evidence before the Tribunal of the difficulty that the applicant may have in re-establishing himself in Italy from a financial perspective. Given the applicant’s advanced age, declining health, and the fact that he’s been retired more than 20 years, the Tribunal accepts that the prospect of the applicant obtaining any form of paid work on his return to Italy is extremely remote.
The applicant told the Tribunal that he is not sure how he would find a place to live and that he believed that he would find it extremely difficult to re-establish himself in Italy. He told the Tribunal that having spent almost his entire adult life in Australia he is not familiar with Italy and he considers it to be a foreign country. He told the Tribunal he is not sure how he would continue to maintain the will to live in circumstances where he is forced return to Italy without his wife, children and grandchildren. He told the Tribunal that he lives for his family and cannot conceive of a life without them.

There was evidence before the Tribunal that the applicant receives an Italian pension, which pays him approximately $700 a month. Again, the Tribunal accepts this pension alone is unlikely to be sufficient to ensure that the applicant is able to secure reasonable accommodation and meet his day-to-day living needs. There was evidence before the Tribunal that there remains an amount of equity in the house jointly owned by the applicant and his wife. The Tribunal is not able to make any independent assessment of the extent of this equity and also notes the potential for the applicant’s wife to remain in Australia and therefore require the house to live in.
There was also evidence from each of the applicant’s children, as well as the applicant’s brother-in-law, of the very limited capacity each of them has to provide any form of substantial ongoing financial support to assist the applicant in funding his relocation to Italy, in re-establishing himself there and meeting his ongoing day-to-day requirements. In her evidence the applicant’s daughter, VP, told the Tribunal that she assisted both her parents in managing their financial affairs online as they were both computer illiterate. She told the Tribunal that she was not sure how they would cope in managing their financial affairs without her assistance.
The solicitor for the respondent pressed both the applicant and his wife, together with other family members, in relation to the potential for the applicant to have the benefit of support, whether financial or otherwise, from either his sister or sister-in-law who both live in Italy. The evidence before the Tribunal was that the applicant’s sister-in-law is very elderly and unable to walk, and is living with her daughter and her children in very small accommodation. In those circumstances, she is very unlikely to be in a position to assist the applicant in any meaningful way.
The applicant and his wife, together with each of their children, expressed a significant doubt that support for the applicant is likely to be forthcoming from the applicant’s sister living in Italy. In their evidence all of the family members described the applicant’s sister based in Italy as not wanting to engage with the applicant given the family sensitivities flowing from the applicant’s offending. The applicant and his wife conceded to the Tribunal that they had not made any enquiries with the applicant’s sister about her capacity or willingness to lend support. They both indicated that they were not inclined to do so and that it was their very firm belief that, in any case, such support would not be forthcoming. The Tribunal accepts that there is no evidence on which it can conclude that such support would be forthcoming.
There was also evidence of the difficulties the applicant may have generally in coping with a sudden change in his environment and transitioning into a new life in Italy.
In her expert report of 17 September 2019, Dr Evrim March made a number of conclusions in respect of the applicant regarding his capacity to be able to cope with significant changed circumstances in a new environment. The report was reaffirmed in the oral evidence Dr March gave to the Tribunal. In preparing her report, Dr March interviewed the applicant and also reviewed a range of medical and legal material together with the psychology report of Mr Cummins.
On the basis of her assessment, Dr March formed the view that the applicant suffers from a number of specific cognitive difficulties including slow information-processing, low range auditory and verbal attention, mental rigidity and some memory impairment. Dr March concluded that while the applicant’s cognitive profile was not consistent with Alzheimer’s-type dementia, he was borderline in that respect and his cognitive difficulties raised the likelihood of him suffering from a form of vascular cognitive impairment. Dr March told the Tribunal that some of the applicant’s broader health conditions were consistent with this assessment. Dr March noted that the applicant presented as mildly depressed and reported having eating and sleeping difficulties. Dr March told the Tribunal that she was unable to draw a stronger conclusion in respect of these matters in the absence of undertaking a brain scan. Dr March noted, in particular, an incident involving a head injury which the applicant suffered at around 40 years of age. She indicated that it was not clear to what extent that brain injury was contributing to the applicant’s present difficulties.
Dr March expressed the view that given the applicant’s cognitive difficulties he was likely to struggle with dealing and handling new information or working out a new structure. Dr March concluded that given the applicant’s slow processing speed, inflexible thinking style and inefficient memory, the applicant would require significant support if he were moved to a novel setting. Dr March also told Tribunal that the applicant’s ongoing health issues would need to be carefully treated and managed which would also require support. Dr March noted in particular that the applicant may need assistance in ensuring he was taking his medication as prescribed.
Having considered all the evidence before it, the Tribunal is satisfied that in the event a decision is made to not revoke the mandatory cancellation of the applicant’s visa, the applicant is likely to face significant impediments in transitioning into a new life in Italy. The Tribunal accepts that given the applicant’s advanced age, his relative unfamiliarity with Italy, his deteriorating health, including his mental health and physical health issues, and limited financial resources, the applicant is likely to find transitioning to a new life in Italy extremely challenging. The Tribunal also accepts that these challenges are likely to be significantly increased in circumstances where the applicant’s wife makes the election not to accompany him back to Italy, but rather remains in Australia for the sake of her children and grandchildren.
For these reasons, the Tribunal is satisfied that the extent of impediments if removed consideration weighs strongly in favour of a revocation of the mandatory cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in section 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in section 501(1) of the Act in accordance with the Direction. The Tribunal has carefully assessed each of the considerations of the Direction as set out above.
In weighing the considerations, the Tribunal has had due regard to the very serious nature of the applicant’s prior offending and the serious harm that any re-offending of that nature could cause for the Australian community. However, the Tribunal has formed the view that the applicant is extremely unlikely to reoffend and does not represent an unacceptable risk of harm to the Australian community. The Tribunal acknowledges that, on balance, the expectations of the Australian community consideration weighs against revocation. However, the Tribunal is satisfied that the interests of the minor children in Australia consideration; the strength, nature and duration of ties consideration; and the impediments if removed consideration all weigh strongly in favour of revoking the mandatory cancellation of the applicant’s visa.
Accordingly, the Tribunal is satisfied that the overall balance weighs slightly in favour of a decision to revoke the mandatory cancellation of the applicant’s visa.
DECISION
The Tribunal sets aside the decision under review and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under section 501CA of the Act.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

…[sgd]…………………………………….
Associate
Dated: 1 October 2019

Date of hearing: 24-26 September 2019

Counsel for the Applicant:

Solicitors for the Applicant:

Mr John Maloney

Clothier Anderson Immigration Lawyers
Ms Catherine Farrell

Solicitors for the Respondent: Australian Government Solicitor
Mr David Brown

[2019] AATA 4086

1 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction