TGRN and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2024] AATA 155

TGRN and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 155 (8 February 2024)
Division:GENERAL DIVISION
File Number: 2023/8924
Re:TGRN
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R. West
Date of decision: 8 February 2024
Place:Melbourne

The decision under review is affirmed.
...................[sgd].....................................................
Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – conviction for sexual penetration of sibling or half sibling - applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Acts Interpretation Act 1901(Cth)
Crimes Act 1958 (Vic)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Sex Offenders Registration Act 2004 (Vic)
Cases
CKL21 v Minister for Home Affairs [2022] FCAFC 70
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HWLJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1039
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599
Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
RVKP and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1761
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Adult Sex Offender Recidivism | Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (ojp.gov).
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R. West
8 February 2024

This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa (the Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of New Zealand.[1] He was born to New Zealand parents in June 1992 in Australia and moved to New Zealand with his father in November 1996.[2] He returned to Australia in December 2013 and was granted the Visa on 23 July 2015.[3]
[1] The Respondent’s representative confirmed on instructions that the Respondent had no record of the Applicant having acquired Australian citizenship and the Visa was issued to him on the basis that he was a citizen of New Zealand.
[2] G5 at p.65.
[3] G5 at p.66.
In May 2023 the Applicant was convicted in the County Court of Victoria of sexual penetration of sibling or half sibling and was sentenced to 6 months’ imprisonment and upon release was made subject to an 18-month community corrections order (CCO)[4] and had reporting obligations imposed on him under the Sex Offenders Registration Act 2004 (Vic) for a period of 15 years.[5]
[4] G5 at p.27.
[5] G5 at p.43 at [77].
On 20 July 2023 the Applicant’s Visa was cancelled under s 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation.[6]
[6] G5 at p.66.
On 2 August 2023 the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked.[7]
[7] G5 at p.50.
On 21 November 2023 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision).[8]
[8] G3 at p.9.
On 28 November 2023 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[9]
[9] G1 at pp.1-5.
HEARING
The Tribunal conducted a hearing of the Application on 30 January 2024. The Applicant was self-represented. The Respondent was represented by Mr Adrian Downie, a solicitor with the Australian Government Solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, including those produced under summons sequentially numbered G1 to G9 and paginated from pages 1 to 178 (G Documents);
(b)a Statement of Facts, Issues, and Contentions produced by the Respondent paginated from pages 1 to 10 (RSFIC);
(c)the oral evidence of:
i.the Applicant;
ii.the Applicant’s mother PR; and
iii.the Applicant’s half-sister, MH.
(d)statements tendered by the Applicant and marked as exhibits:
i.letter from MH, dated 22 January 2023 (Exhibit A1); and
ii.letter from PR, dated 23 January 2023 (Exhibit A2).
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test (as defined by section 501); or
(b)there is another reason why the cancellation should be revoked.
The basis of the Applicant’s conviction for sexual penetration of sibling or half sibling in May 2023 was summarised by His Honour Justice Kelly in his sentencing remarks.[10] The victim was the Applicant’s half-sister who was 16 years old at the time of the offence. The Applicant was 25. The Applicant engaged in one act of sexual intercourse with the victim resulting in her becoming pregnant and later giving birth to a son.
[10] G5 at pp.27-44.
Section 501(6)(e) relevantly provides that a person does not pass the character test if:
…a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;
There is no definition of “sexually based offences” in the Act, and the Tribunal is required to look at the actual content of the elements of the offences of which the Applicant was convicted.[11]
[11] Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189 at [22].
The offence of Sexual Penetration of a Sibling or Half-Sibling is defined in s 50F(1) of the Crimes Act 1958 (Vic) to include an act whereby a person intentionally sexually penetrates another person who they know to be their sibling or half-sibling. It is therefore clearly a sexually based crime.
The sentencing remarks disclose that at the time of the offence the victim was the Applicant’s 16-year-old half-sister.
It is not relevant for the purpose of s 501(6)(e) of the Act that the age of the victim is not a consideration under s 50F(1) of the Crimes Act.[12] For the purpose of s 501(6)(e) the person must be convicted of a sexually based offence involving a child whether or not the elements of the offence necessarily require that the victim is a child.[13]
[12] 1958 (Vic).
[13] HWLJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1039 at [43].
The Acts Interpretation Act 1901 (Cth) does not define ‘child’. The Act itself does not directly define ‘child’ but s 5CA of the Act does defines the expression ‘child of a person’ by reference to the Family Law Act 1975 (Cth) which defines a child as a person under the age of 18.[14] Having regard to this definition the Tribunal is satisfied that the reference to ‘child’ in s 501(6)(e) is to a person under the age of 18.[15]
[14] See s 4.
[15] RVKP and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1761 at [21].
Accordingly, the Tribunal is satisfied that the Applicant is a person who has been convicted by an Australian court of a sexually based offence involving a child. He therefore fails the character test.
Thus, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[16]
[16] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, [17].
DIRECTION 99
Paragraph 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Paragraph 6 stipulates that the decision-maker must be informed by the principles stated in paragraph 5.2 in assessing these considerations.
EVIDENCE
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 10 July 2023 was included in the G Documents.[17] It includes findings of guilt or convictions for:
[17] G5 at pp.24-26.
·25 May 2023 – incest of half-sibling (6 months imprisonment and 18-month CCO);
·26 June 2017 – possession of ammunition (fine $500);
·10 April 2017 – possession of a knife in a public place (fine $350);
·3 April 2017 – affray and assault occasioning actual bodily harm (18 months bond), failure to appear in accordance with bail (conviction without penalty) and driving with drug present in blood (fine $300 and 3 months’ licence disqualification);
·21 March 2017 – arrest warrants issued for failure to appear to answer various charges;
·27 February 2017 – failure to appear in accordance with undertaking (no conviction recorded ordered to do 75 hours community service);
·10 February 2017 – failure to appear in accordance with undertaking (no conviction recorded – fine $500);
·20 January 2017 – being intoxicated in a public place (no conviction recorded);
·12 December 2016 – possession dangerous drugs (no conviction recorded, fined $300);
·25 January 2016 – possess prohibited drug (12 month bond).
Sentencing Remarks
The Tribunal has had regard to the transcript of the proceedings in the County Court of Victoria and the sentencing remarks of Justice Kelly in sentencing the Applicant for the offence of Sexual Penetration of a Sibling or Half-Sibling in May 2023.[18]
[18] G5 at pp.27-44.
Applicant’s Evidence
The Applicant relied on information provided to the Respondent in support of his application for revocation, including a Personal Circumstances Form dated 11 August 2023[19], and gave oral evidence at the hearing. His evidence was:
a.He was born in Australia in 1992. Both of his parents were citizens of New Zealand. He had one older and one younger brother. His father was sentenced to a term of imprisonment during which time his parents separated. When released from prison in about 1996 the Applicant’s father returned to New Zealand with the Applicant and his two brothers and the Applicant’s mother remained in Australia and re-partnered. The Applicant was around 4 years old at this time.
b.The Applicant lived with his father and two brothers in Waitara in the North Island of New Zealand until he was 21 years old. He attended primary school and later secondary school. He left school at around 14 years of age and worked as a meat worker in an abattoir. He said he lived a ‘routine life’ although he confirmed that he had been in trouble at school for fighting and been subject to physical disciplining by his father.
c.In December 2013 the Applicant came to Australia for a holiday and decided to remain in Australia with his mother and her family in Lismore, NSW. At that stage his mother had 2 daughters and 4 sons from her second relationship. The Applicant lived with them in the family home. During this time the Applicant did some concreting work for a few weeks but otherwise did not work. He said he continued to live with his mother’s family when they moved to the Gold Coast, Grafton and later to Melbourne.
d.He confirmed that in 2017 while in Melbourne he had sexual intercourse with his half-sister MH which resulted in her becoming pregnant and later giving birth to his son. He said that this was a once only event and that he was intoxicated at the time. He said that he was ashamed and embarrassed by his actions and immediately moved out of his mother’s house. He lived in communal houses for several years and after 2019, in housing provided by the Greenlight Supportive Housing Program. He did some casual work as a cleaner and meat worker during this time but otherwise relied on unemployment benefits. He said that he applied for the Visa principally for the purpose of qualifying for Centrelink payments.
e.His son was born in 2018 and approximately one year after the birth he moved into his mother’s house with MH and his son for a brief period. During this time he tried to parent his son. He said that later after he was arrested and charged with the incest offence his bail conditions prevented him from having contact with MH. During this time the Applicant had contact with his son when his mother brought the child to see him at his home. The Applicant conceded that MH was his son’s primary care-giver and she had the support of his mother and the rest of the family. He said that MH wanted him to have a role in his son’s life but not a parental role. He said that he did not seek a parental role.
f.The Applicant said that he spoke to his father via Facetime about the incest some time after he had moved out of his mother’s house. He said that his father was embarrassed and told him not to come back to New Zealand and if he did he would kill him. The Applicant said that this threat was not repeated and he has had no contact with his father since that conversation, which was several years ago.
g.The Applicant said he has regular contact with his older brother who lives in Blacktown, NSW and if released into the community he intends to go and live with his older brother. He said that his brother has lined up a job for him laying tar-seal on the roads if he is released.
[19] G5 at pp.50-64.
In cross-examination the Applicant conceded that in April 2023 he had been charged with possession of cannabis and the charge was pending. He was also taken to the police report of the incidents giving rise to his conviction in April 2017[20] for affray and assault occasioning actual bodily harm. He acknowledged that he had plead guilty to the charges although claimed that the police report did not accurately describe the events. He asserted that he became involved in a fight with the victim because the victim was bullying his younger brother. He nevertheless confirmed aspects of the police report and in particular that he struck the victim, that the victim was disabled (he had only one eye) and that the Applicant had been drinking at the time of the offending. He conceded that they were serious offences because he had hurt the victim.
[20] G8 at pp.135-136.
The Applicant also acknowledged that he had breached his bail conditions by contacting MH but claimed he had only gone to see her to say goodbye prior to his court appearance in May 2023 as he expected to receive a prison sentence.
The Applicant acknowledged that he has had substance abuse problems and that he had started using alcohol and cannabis when he was 11 years old. He said he last smoked cannabis shortly before going into prison but had not consumed alcohol or drugs since May 2023 while in prison and detention. He confirmed the observation of Laura Fleming, psychologist and Dr Treeby, neuropsychologist, that up to the time of his court appearance in May 2023 he was struggling with substance abuse and particularly alcohol. The Applicant said that he now recognised that he needs to deal with his substance abuse and he has undertaken a drug and alcohol course in prison[21] and has abstained from use since being incarcerated. He said he would do further courses if released and would have the support of his case worker for 18 months under the terms of the community corrections order imposed on him by the courts.
[21] G9 at p.177.
Witnesses
PR
PR, the Applicant’s mother, gave oral evidence. She said the Applicant loved his son and was a good father considering the circumstances. She confirmed that prior to his imprisonment the Applicant had access to his son under supervision by her or her partner for around half a day per week. She said the Applicant did not provide financial assistance to his son because he was not in a position to do so being on unemployment benefits. She said the child was looked after by MH with support from her and her partner. She said that she had taken the son to see the Applicant in the detention centre on one occasion but otherwise they had had no contact since the Applicant’s incarceration.
She acknowledged that the Applicant has substance abuse problems which he needs to address in the future.
MH
MH provided a brief written statement[22] and gave oral evidence at the hearing.
[22] Exhibit A1.
She confirmed that she was the Applicant’s half-sister and the mother of his son. She said the Applicant was not a bad person notwithstanding that what he had done was bad. She said he had learned from his mistakes and should be allowed to remain in Australia. She said that her son looks up to the Applicant and loves him unconditionally and he would be very upset if the Applicant were deported.
She said she has no expectation that the Applicant will contribute financially to the support of their son at least while he is on unemployment benefits and that the child is well cared for by her and her parents. She said that if the Applicant returned to New Zealand she would be prepared to take her son to New Zealand to see him.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in paras 8.1(1) and (2) of Part 2 of Direction 99.

Paragraph 8.1(2) requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
The factual circumstances giving rise to the conviction in May 2023 as stated by the County Court were:
The victim in this matter was your half-sister, [victim].
At the time of offending, she was 16 years of age and you were 25. In 2017, you and [victim] lived together in Bulleen. You each had a separate bedroom. On an occasion between 25 September 2017 and 10 October 2017, you engaged in sexual intercourse with [victim], resulting in the conception, pregnancy and birth of your son […]. [victim] had not informed her parents of the pregnancy prior to […]’s birth, and the “other parent” section of […]’s birth certificate was left blank.
Victoria Police eventually received information that [your son] may have been born as a result of an incestuous relationship. On 25 July 2018, police executed a search warrant on the Queen Elizabeth Centre, where [victim] was recuperating with [son]. Police seized a nappy worn by [son] and obtained swabs of a dummy used by the child.
On 7 May 2021, you were arrested and interviewed. You provided largely 'no comment' responses to the questions asked. When told of the allegation that you had had sexual intercourse with [victim], you said, 'Who's saying all that rubbish, actually?' You provided police with a DNA sample, which was then compared to the DNA profile taken from the nappy and dummy. The results of the comparison concluded it was 1.6 million times more likely that you are the biological father of the baby than another male drawn at random from the Victorian population.[23]
[23] G5 at p.30 at [6].
Paragraph 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct.
Paragraphs 8.1.1(1)(a)(i)-(ii) lists certain crimes which are to be regarded as very serious. They include crimes of violence and/or sexual crimes, crimes of a violent nature against women and children regardless of the sentence imposed and acts of family violence. Paragraph 8.1.1(1)(b) gives examples of crimes which are to be regarded as serious and include crimes against vulnerable members of the community.
The descriptions given in paras 8.1.1(1)(a) and (b) are not exhaustive and paras 8.1.1(1)(c)-(h), set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the court;
(b)the frequency of the Applicant’s offending; and
(c)the cumulative effect of any repeated offending.
There is no indication in Justice Kelly’s sentencing remarks that the Applicant’s conviction for incest involved violence. Nevertheless, a sexual crime perpetrated against a child is to be regarded as very serious. The seriousness is reflected in the Applicant’s sentence of 6 months imprisonment. The Tribunal has recognised that:
Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[24]
[24] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Justice Kelly commented on the nature of the offending as follows:
Ultimately, I assessed the gravity of your offending and your moral culpability as mid-range, given the immaturity and poor insight you demonstrated in your exchanges with neuropsychologist, Dr Matt Treeby, when he interviewed you at the request of your solicitors. Although nine years older than your half-sister, you are quite unsophisticated, impetuous and immature. I am told that you were drunk when you had sex with her; and that it occurred once only.
Intoxication is no excuse, but the objective gravity of your offending is mitigated by the fact that you did not repeat your mistake; you left the house soon afterwards and moved to alternative accommodation. There was nothing before me to suggest that you had groomed your half-sister, or that you exploited any particular vulnerabilities of hers; or that the familial relationship between you was such that you manipulated her trust in you.
This offending was ill-judged, spontaneous and immediately regretted. Its reverberations will last a long time, but it is distinct from many of the father/daughter incest cases that come before this court. Your half-sister has not provided a victim impact statement, but her life has changed irrevocably and she has been transformed from a child into an adult overnight as a consequence of this offending.[25]
[25] Ibid at [7]-[11].
Having regard to Paragraph 8.1.1(1) of Part 2 of Direction 99 the Tribunal assesses the Applicant’s conduct in relation to this crime as very serious.
The Applicant’s other offending included convictions in April 2017 for affray and assault occasioning actual bodily harm. The Tribunal accepts the description of the offending contained in the NSW Police Fact Sheet dated 30 September 2016[26] (produced under summons), the substance of which was confirmed by the Applicant in his oral evidence. Both are violent offences and involved actual physical harm to the victim who was an older man who was suffering from the loss of one eye. The Applicant plead guilty to both charges. Although the court did not impose a custodial sentence in relation to these offences they are nevertheless to be regarded as serious.
[26] G8 at pp.134-137.
The remaining offences involved relatively minor crimes such as public drunkenness, drug possession and failure to appear. When taken together they exhibit general antisocial behaviour and a disregard for the law.
Having regard to these considerations, the Tribunal finds that the Applicant’s criminal conduct to date has involved very serious offences including crimes of a sexual and violent nature, which have threatened the physical and psychological wellbeing of members of the Australian community. These offences are part of a pattern of frequent criminal conduct engaged in by the Applicant in the period 2016-2017.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the decision-maker must have regard, cumulatively, to:
(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 applicant reoffending.
Nature of the Harm
The Applicant’s offending, if repeated, represents a risk of very serious harm to members of the Australian community. Sexual crimes perpetrated against a child have the potential to cause very serious psychological injury for the victim and, as the case of MH demonstrates, can result in life changing consequences for the victim where unwanted pregnancy results. A repetition of the affray and assault offences threatens serious physical and psychological injury. Further, the antisocial nature of the Applicant’s other offending, while not involving any direct threat of harm to individuals, nevertheless poses a risk of harm to the general good order of the community.
Likelihood of Reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future must be based on a logical process of reasoning based on the known facts.[27]
[27] (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
The Respondent has drawn the Tribunal’s attention to academic studies which acknowledged that incest offenders are understood to present a lower risk of re-offending relative to other kinds of sexual offenders.[28] The Applicant was assessed by clinical psychologist Ms Laura Fleming as at a low risk of future sexual re-offending according to the SVR-20 test.[29]
[28] Chapter 5: Adult Sex Offender Recidivism | Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (ojp.gov).
[29] G8 at p.155 at [94].
The sentencing remarks of Justice Kelly refer to an assessment by Community Corrections in its report to the Court of 17 April 2023 that the Applicant was a high risk of general re-offending. Notwithstanding this assessment His Honour concluded that the Applicant’s prospects of rehabilitation are reasonably good.[30]
[30] G5 at p.84 at [52].
The Tribunal notes that the Applicant’s offending was limited to a relatively short period of time. Aside from a conviction for drug possession in January 2016 the Applicant’s criminal record[31] discloses that all other convictions related to the Applicant’s conduct during the 12-month period between September 2016[32] and September/October 2017. This includes the incest conviction in May 2023, which relates to conduct in September/October 2017. The Applicant has not been convicted of any offence related to conduct since September/October 2017 and there is no evidence of any wrongdoing while he has been in prison or detention. Justice Kelly noted in his sentencing remarks that the Applicant:
During the period between offending and being charged, and again between being charged and your sentence, your counsel highlighted that you have not come to police attention.[33]
[31] G5 at pp.24-25.
[32] The convictions for affray and assault relate to conduct on 28 September 2016 – see G8 at p.135.
[33] G5 p.81 at [33].
The fact that the Applicant has not been convicted of any offence over the last 6 years is a positive indication that he will be unlikely to offend in the future, although it is not conclusive.
The Applicant has expressed remorse for his offending. He plead guilty to the incest charge and to the charges of affray and assault. The Court recognised that the guilty plea to the incest charge was evidence of remorse.[34] However, the Court noted the observations of neuropsychologist Dr Treeby who interviewed the Applicant on 28 March 2023 that:
..you displayed a concerning lack of insight into your offending, despite a nine-year age gap between you and your half-sister, and the fact that despite her being only 16 at the time of offending you resorted to blaming her and spoke disparagingly of her.
When asked about regret for your actions, you told Dr Treeby that your offending, 'Ruined my life. I'm embarrassed. I wish I hadn't come to Australia, honestly'. You were able to articulate the effect of your actions on your half-sister by saying, 'She'd be pretty messed up, I suppose'.
This might be said to demonstrate some capacity for reflection, but you appeared to be more preoccupied with the effects of your actions on your life than on hers or the child's.[35]
[34] G5 at p.85 at [54].
[35] G5 at p.83 at [45-47].
The Applicant was taken in cross-examination to the following observation of Dr Treeby:
Despite his guilty plea, [the Applicant] seemingly had difficulty accepting responsibility for his offending behaviour at the time of assessment. When asked about circumstances of the offence, he flippantly attributed this to intoxication and external factors. He commented “I was just pissed and she came at me like a dirty slut..”[36]
[36] G9 at p.169 at [65].
The Applicant confirmed that he had made this statement to Dr Treeby, but said that prison had changed his insight and he now accepts that the offence was definitely his fault.
In responding to the police report of the incident[37] giving rise to the affray and assault convictions the Applicant confirmed the substance of the report but sought to partially justify his behaviour by claiming that he was acting in defence of his younger brother. He seemed to grudgingly accept responsibility stating that it was a serious offence because he clearly hurt someone.
[37] G8 at pp.135-137.
The Applicant’s mother acknowledged in her oral evidence that the Applicant had had substance abuse issues that he needs to take steps to address in the future. The Applicant also acknowledged his substance abuse and confirmed that he had last smoked cannabis shortly before going into prison in May 2023. He claimed that he has been abstinent while incarcerated and that he has benefitted from a drug and alcohol course while in prison. He said he will do further courses if released into the community.
The Applicant was seen by both Dr Treeby, neuropsychologist, and Ms Laura Fleming, forensic psychologist, for assessment prior to the hearing before Justice Kelly in May 2023.
Both Dr Treeby and Ms Fleming noted that the consumption of alcohol played a significant part in the Applicant’s incest offence and the Applicant acknowledged that he was under the influence of alcohol at the time of committing the offences of affray and assault causing actual bodily harm. Dr Treeby noted that the Applicant:
.. has notable difficulties controlling impulses and regulating his emotions, particularly when intoxicated. He will almost certainly experience poor psychosocial outcomes should his alcohol and other substance use remain problematic.[38]
Ms Fleming opined that the Applicant has chronic low mood which he had come to self-medicate with drugs and alcohol.[39]
Dr Treeby recommended that the Applicant participate in a longer-term residential drug and alcohol rehabilitation program. Ms Fleming suggested that the Applicant see a general practitioner regularly to deal with his low mood and alcohol use and individualised counselling to address his alcohol and substance use.
[38] G9 at p.169 at [67].
[39] G9 at p.156 at [100].
Dr Treeby concluded that the Applicant’s intellectual function was low average and within normal limits and that there was no evidence of a diagnosable mental health condition, brain injury or cognitive impairment. He nevertheless opined that the Applicant would benefit from counselling to learn strategies to help manage impulses and emotions in more adaptive ways.[40] Ms Fleming recommended that the Applicant should undertake intensive psychotherapy to identify and increase awareness of and insight into underlying low mood and feelings of abandonment from family.
[40] G9 at p.169-170.
Justice Kelly noted in his sentencing remarks that the Applicant had not engaged sufficiently with mental health services.[41]
[41] G5 at p.84 at [51].
The Respondent asserts that the Applicant lacks insight into the cause of his offending and has not pursued opportunities through counselling to better understand his behaviour.
The Applicant has limited support available to him in the community. Ms Fleming reported that the Applicant has expressed feelings of abandonment and he said in his evidence that he felt embarrassment as a result of the incest and the impact on MH and the family. In his oral evidence he said that he has not established friends in Melbourne since coming here in 2017. He has no partner and lives alone in supported accommodation. He has been unemployed for considerable periods and he was unable to identify any social or cultural interests. His principal source of support appears to be his older brother who lives in Sydney who would provide him with somewhere to live. His brother has said he can help him obtain employment but is not in a position where he can make that decision himself. The Applicant also mentioned a friend he has made online who lives in Sydney.
The Applicant will, however, be subject to a community correction order (CCO)[42] for a period of 18 months following his release as part of his sentence for the incest offence. This will involve ongoing supervision and support from a caseworker and a requirement that he undertake rehabilitation and engage in community service. There is also the deterrence of further time in prison if the Applicant breaches the terms of the order. Whether or not the CCO will be transferred to Sydney is a matter yet to be determined. Under the terms of the CCO the Applicant cannot leave Victoria without the Secretary’s permission.
[42] G9 at pp.143-145.
The Applicant now says his experience of incarceration and the threat of deportation will deter him from further offending. The Tribunal accepts that it is a factor which mitigates against further offending.
Conclusion
The Applicant is a young man who has some degree of vulnerability in the community. He is of low average intelligence and limited education. He has a chequered work history and extended periods of unemployment. He does not have strong support from family and friends, although he will be subject to some supervision for an initial 18-month period under the terms of his CCO. He experiences low mood, is impulsive and has difficulty managing his emotions. He has a long history of drug and alcohol abuse which has been a significant contributing factor in his past criminal offending. He has not undertaken adequate rehabilitative steps to address his drug and alcohol use but says he understands the need to do so and will seek appropriate services if released.
He has expressed remorse for his offending but has demonstrated in his responses to questioning that his remorse is more centred on his own circumstances than the effect his conduct has had on his victims.
His most serious offence was the commission of incest with his 16-year-old half-sister. The Tribunal is satisfied that there is a low risk that he will repeat this conduct or that he will engage in sexual offending generally. However, his lack of a strong prosocial lifestyle, his limited engagement with counselling services in relation to his underlying low mood and impulsivity and particularly his long- standing abuse of drugs and alcohol and his qualified expressions of remorse all lead the Tribunal to assess the risk of him re-offending generally as greater. The Tribunal is satisfied that this is a moderate risk.
The Applicant’s offending was very serious and involved violence and the infliction of serious physical and psychological harm on members of the community. While there is a low risk that the Applicant will engage in further sexual offending, he represents a moderate risk of committing other crimes, including crimes of violence, in the future. The Tribunal is not satisfied that this amounts to an unacceptable risk of the kind referred to in para 8.1.2(1) of Direction 99, but the protection of the Australian community is a primary consideration under Direction 99 and the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
Family Violence committed by the Applicant
Paragraph 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
The Respondent asserted initially that the Applicant’s sexual and violent offending against his half-sister constitutes family violence.[43] Subsequently in final submissions the Respondent withdrew this assertion on the basis that it could not be justified on the evidence.
[43] RSFIC at [33].
Notwithstanding the Respondent’s withdrawal, the Tribunal feels it necessary to consider the issue.
To constitute family violence within the meaning in s 4(1) of Direction 99, conduct must be violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Section 4(1) gives examples of what may constitute family violence, including relevantly, assault, sexual assault or other sexually abusive behaviour.
Was the victim a family member?

Section 4(1) of Direction 99 provides that a member of the person's family, for the purposes of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
The victim was the Applicant’s half-sister. Justice Keely’s sentencing remarks confirm that the Applicant and the victim were both living in his mother’s family home at the time of the offence. The ordinary meaning of the term ‘intimate’ is ‘closely acquainted or familiar’ or involving a ‘very close connection’. On this basis the Tribunal is satisfied that the Applicant had an intimate personal relationship with the victim and accordingly she was a member of the Applicant’s family within the meaning in s 4(1) of Direction 99.
Did the Applicant’s conduct meet the definition of family violence in s 4(1)?
Justice Kelly’s sentencing remarks do not indicate that actual physical violence was involved in the single incident of sexual intercourse between the Applicant and the victim which constituted the offence. Similarly, the court record does not indicate that the victim was threatened or became fearful. There is no indication that the sexual intercourse was other than consensual.
Even if consensual, intercourse with a minor might arguably be sexual assault or sexually abusive behaviour, but these two ‘offences’ are advanced in s 4(1) as illustrative of the general description of behaviour that is violent, threatening or coercive or controlling or induces fear. In the absence of violence, threatening behaviour or fear, the appropriate question is whether the Applicant’s behaviour during the incident was coercive or controlling by reason of the age of the victim and the age difference between her and the Applicant or otherwise.
Judge Kelly specifically addressed this issue in his sentencing remarks:
There was nothing before me to suggest that you had groomed your half-sister, or that you exploited any particular vulnerabilities of hers; or that the familial relationship between you was such that you manipulated her trust in you.[44]
[44] G5 at p.31 at [10].
Given this statement and the Court’s finding that the sexual intercourse was a single event rather than a pattern of behaviour, the Tribunal is not satisfied on the evidence that the Applicant engaged in family violence within the meaning in s 4(1) of Direction 99.
The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of Direction 99 requires that decision-makers:
(1)…must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
The Applicant has no partner. He has a son who was born in July 2018. The Applicant does not fulfill a parental role for the child who is cared for by his mother. Justice Kelly commented on the nature of the Applicant’s relationship with his son in his sentencing remarks as follows:
..you have not obtained employment of any note in order to provide for your child, or to ease the burden of motherhood on your half-sister. This does not auger well for your ability or willingness to provide for the child.
The extent of your involvement with the child is unclear and complicated by orders and bail conditions prohibiting you from having contact with your half-sister. Your mother gave some evidence of sporadic supervised contact with the child.[45]
[45] G5 at p.38 at [49]-[50].
The Applicant has an extended family in Australia which he said includes his two brothers, his mother, two half-sisters (including MH), four half-brothers, three uncles and an aunt and twenty or so cousins who are resident in Australia.[46] He said he has contact with his half-brothers via Facebook but not the oldest and talks to one uncle but otherwise he has little contact with his extended family. He said he is in regular contact with his older brother and intends to move to NSW to live with him if released, but he otherwise provided no evidence of the nature and strength of his other relationships. Ms Fleming reported that the Applicant stated he is in contact with his mother by phone but rarely sees any family.[47]
[46] G5 at p.59.
[47] G8 at p.148.
The Applicant also has ties to the Australian community through his employment, although Justice Kelly noted that after moving to Melbourne in 2017 and obtaining a resident visa the Applicant ...worked on and off at times, working as a cleaner and car detailer, otherwise receiving unemployment payments from Centrelink.[48]
[48] G5 at p.32 at [15].
The Respondent accepts that the Applicant’s ties to his immediate family (including his brothers, uncles, aunt and cousins) and his broader social links in Australia are matters that favour revocation.
Paragraph 8.3(4) of Direction 99 requires that decision-makers have regard to the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant was born in Australia. He left Australia at four years of age and returned as a 21-year-old. He is now 30 years old and has lived in Australia continuously for over 9 years. He identifies Australia as his home. However, he was not ordinarily resident in Australia during his formative years and he began offending in 2016 around two years after arriving in Australia. Having regard to para 8.3(4)(a)(iii), the Tribunal gives limited weight to the time the Applicant has resided in Australia.
Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration, which weighs in favour of revocation. However, the Tribunal is not satisfied that the strength, nature or duration of the Applicant’s ties to the Australian community, warrant the Tribunal affording that consideration more than moderate weight.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) requires that decision-makers must make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
The Applicant has raised the interests of his son as weighing in favour of revocation.
In considering the best interests of the child, para 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant described his relationship with his son in his written Request for Revocation[49]as follows:
(We have)... a happy father and son bond, can easily tell my son loves me, looks up to me and would love me to be in his life. I usually call him 1 or 2 times a week to see how he is and to say I love you….I think it would change him, make him depressed and lonely knowing he could never see me ever again.
[49] G5 at p.56.
In a written statement tendered by the Applicant, MH stated that the Applicant and his son ...have a very special bond and I believe his son would be very upset not being able to know his father if he were to be deported…. (His son) looks up to him, admires him and loves unconditionally.[50]
[50] Exhibit A1.
Justice Kelly was unable to clarify the extent of the Applicant’s involvement with the child and noted that it was complicated by orders and bail conditions prohibiting him from having contact with the child’s mother. His Honour noted that the Applicant’s mother (PR) had given some evidence of sporadic supervised contact with the child. In her evidence to the Tribunal PR confirmed that prior to his imprisonment the Applicant had access to his son on supervised visits for half a day once per week but since being imprisoned the Applicant has only seen his son once when he visited with PR at the detention centre.
Both the Applicant and MH gave evidence that the Applicant has not played, and does not intend to play, a parental role in the life of the child. Both accepted that MH is the primary care giver and that if released the Applicant would move to NSW to live with his brother rather than stay with his son in Melbourne. MH also said that she did not expect the Applicant to make a financial contribution to support the child while he is receiving unemployment benefits. She said that the child is well cared for by herself with support from PR and her partner.
There is no evidence that paras 8.4(4)(c), (g) and (h) are relevant to the Applicant.
If cancellation of the Visa is not revoked the Applicant would likely be deported to New Zealand. That eventuality would not necessarily mean the child would be cut off from all contact with his father. There would be some opportunity for the child to develop and maintain a relationship with the Applicant if he were deported to New Zealand, including by telephone and social media. MH volunteered in her evidence that if the Applicant was returned to New Zealand she would be prepared to travel there to give her son the opportunity to see his father. Given that the Applicant’s intention is to move to NSW if released it would make little difference in terms of access whether the Applicant were in New Zealand or NSW.
Having regard to these matters the Tribunal is satisfied that it would be in the best interests of the Applicant’s son for the cancellation of the Visa to be revoked. However, given that the Applicant has no parental role, has had limited contact with the child and does not intend to have very much direct contact in the future, the Tribunal gives this consideration limited weight.
The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of revoking the cancellation of the Applicant’s Visa.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 99 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(4) states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that para 11.3 of the former Direction 65 which mirrors the wording of paras 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[51]
[51] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76].
The Applicant has clearly acted contrary to the deemed community expectation in his offending. The offence of Sexual Penetration of a Sibling or Half-Sibling amounts to a serious crime of a sexual nature against a child and the offences of affray and assault occasioning actual bodily harm involved the physical assault of a person with a disability and amount to crimes of violence against a vulnerable member of the community. These offences are serious and fall squarely into the categories particularised in para 8.5(2) of Part 2 of Direction 99.
Of particular concern is the incest offence. Notwithstanding Justice Kelly’s finding that the Applicant’s moral culpability was slightly reduced by the circumstances, the incest offence raises serious character concerns for the Applicant. Incest itself carries a degree of public repugnance in part because of the destructive effect it can have on the people involved and other family members. In the Applicant’s case this is compounded by the fact that it involved unprotected sex resulting in the victim becoming pregnant and giving birth to her child. The life-long implications of the crime for both the victim and her child, and through them other members of the family, could be profound. Further compounding the serious nature of the offending is the fact that the victim was a child. Crimes of a sexual nature involving children are specifically identified in Direction 99 in the very serious category. The impact on the victim of an unwanted pregnancy at the age of 16 cannot be underestimated. As Justice Kelly observed about the victim ...life has changed irrevocably and she has been transformed from a child into an adult overnight as a consequence of this offending.[52]
[52] G5 at p.31 at [11].
As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.[53]
[53] Ibid at [71]-[72] (Charlesworth J), [97]-[98] (Stewart J).
In assessing the weight to give to this consideration, the Tribunal notes that there are factors which confirm the expectation expressed in para 8.5(1). The Applicant’s offences were serious departures from accepted community standards. The affray and assault offences arose in the context of a public display of antisocial behaviour including public drunkenness on the part of the Applicant and others involved. The incest offence involved alcohol abuse and seriously irresponsible behaviour on the part of the Applicant. The Applicant’s offending was in the context of a broader pattern of offending demonstrating a lack of respect for the law. The Applicant has been in Australia for nine years but has not demonstrated a positive contribution to the Australian community. He has not been involved in any social or cultural activities or organisations. He has made limited social connections. He has worked irregularly and relied predominantly on social welfare support for the majority of his time in Australia.
On the other hand, some matters tend to mitigate against giving the community expectation full weight. The Applicant was a relatively young man at the time of the offending and was dealing with issues of low mood and substance abuse. He had a somewhat troubled upbringing having started using drugs and alcohol at the age of 11 and having left school at 14. He has expressed some measure of remorse for his actions and has avoided further prosecution for over 6 years. He has also made some efforts to fulfill his role as father to his son, although he has not assumed a parental role nor provided regular financial assistance to the child or his mother.
Having regard to these various considerations, the Tribunal is satisfied that the circumstances warrant the expectations of the Australian community, a primary consideration, being given substantial weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all the considerations.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2
Legal Consequences of the Decision
Paragraph 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulment claim – para.9.1.1(3). However, claims which may give rise to international non-refoulement obligations can be raised by a non-citizen who is not the subject of a protection finding – cl.9.1.2(1). Where such claims are raised they must be considered by the Tribunal - cl.9.1.2(1).
The Applicant is not covered by a protection finding and has not expressly raised a non-refoulment claim in these proceedings. It is not apparent that there would be any general reason why non-refoulment would arise in the Applicant’s case given his country of citizenship is New Zealand.

The Applicant did raise an alleged threat by his father that he would kill him if he returned to New Zealand. The allegation is that the threat was made several years ago as an immediate response by the father to being told about the incest. The Applicant’s evidence was that the threat had never been repeated. He has had no contact with his father since the conversation in which he informed him of the incest, and there is no evidence to indicate that either the threat was made with genuine intent at the time or that it is currently extant.
The Tribunal is not satisfied that this allegation even if proven to be genuine could found a valid application for a protection visa. Under s 36(2)(aa) of the Act the relevant criterion for making a protection finding is that the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a risk that the person will suffer significant harm. Under s 36(2B) there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm;
In the Applicant’s case this could include, as examples, reporting the alleged threat to the New Zealand police and/or taking up residence well away from his father, such as in the South Island.
Accordingly, the Tribunal is satisfied that the legal consequence of a decision not to revoke the cancellation of the Applicant’s Visa is that the Applicant would be liable to removal from Australia as soon as reasonably practicable in the circumstances specified in s 198 of the Act, with detention under s 189 pending removal.
Deportation to New Zealand and continued detention pending removal are matters which adversely affect the interests of the Applicant and weigh in favour of revocation but it is not a primary consideration under Direction 99 and the Tribunal gives the consideration little weight.
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Respondent accepts that the Applicant will face some hardship in the short-term as he re-establishes his life in New Zealand but in light of his age, the absence of any significant health conditions, and his work history the Respondent submits that he would not be impeded from establishing himself and maintaining basic living standards.
The Applicant is 30 years old. He lived in New Zealand until he was 21 years old. He does not face any substantial language or cultural barriers in establishing himself in New Zealand. He worked in New Zealand before moving to Australia and has some work experience in Australia, although he has spent some considerable time on unemployment benefits. He does not have any significant formal qualifications. The Tribunal accepts that he may have difficulty obtaining employment initially but there are no obvious barriers to him obtaining appropriate employment beyond the initial period.
The Applicant indicated that he has extended family and some friends in New Zealand but has had little or no contact with them since coming to Australia. He has had no contact with his father since he told him of the incest and claims that his father has threatened to kill him for bringing shame on his family name if he returns[54]. The Tribunal accepts that the Applicant is unlikely to have any strong support in the community in establishing himself in New Zealand.
[54] G5 at p.63.
The Applicant has no serious physical or mental health concerns[55] although he has experiences of low mood, impulsivity and difficulty managing his emotions and a history of drug and alcohol abuse. These matters can be expected to present some difficulties for the Applicant in establishing himself in the New Zealand community, as they will be if he is released into the Australian community.
[55] See G8 at p.148 and G9 at pp.169-170.
New Zealand is an advanced economy with a well-developed social welfare system. As a citizen of New Zealand the Applicant would have access to the social, medical and/or economic support available to other citizens.
Having regard to these matters, the Tribunal is satisfied that the Applicant would face some impediments in establishing himself and maintaining basic living standards in New Zealand, but these impediments are not so great as to attract more than minimal weight in favour of a decision to revoke the cancellation of the Applicant’s Visa.
Impact on Victims
Paragraph 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Full Court of the Federal Court has held that Paragraph 9.3(1):
… does not in its terms confine the “impact” that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word “impact” is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal.[56]
[56] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [134].
The Tribunal is satisfied that the evidence of PR and MH is relevant information in regard to the impact of a decision in this matter on the victim of the incest offence and family members of the victim. This information was made available through witnesses called by the Applicant whom he had the opportunity to examine and re-examine. The Tribunal is satisfied that the Applicant was therefore afforded procedural fairness in relation to the information.
The evidence of MH was that she thought the Applicant should be allowed to stay in Australia. She said she believed her son would be very upset if the Applicant were deported and that she would find it stressful if the Applicant were removed to New Zealand and she would have to take her son to New Zealand to see the Applicant. The evidence of PR was also supportive of the Applicant remaining in Australia for the benefit of the son. Neither MH or PR identified any positive impact on either of them of the Applicant remaining in Australia. They both confirmed that the primary care of the child was met by MH with support from her family and that the Applicant did not and was not expected to contribute financially to support MH or the child. PR did not identify any negative impact of the Applicant’s removal on her, MH or any member of the family other than the child.
The Tribunal does not have any evidence of the possible impact of its decision on the victims of the Applicant’s other criminal behaviour, their families or other members of the Australian community who may be adversely impacted.
On the basis of this evidence the Tribunal is satisfied that a decision not to revoke the cancellation of the Applicant’s Visa would have a negative impact on the child, a member of the victim’s family, by causing him some distress at the removal of the Applicant to New Zealand. The Tribunal is also satisfied that such a decision would negatively impact MH by causing her to be concerned for her son’s feelings and some inconvenience in maintaining contact for her son with the Applicant. The Tribunal is not satisfied that the decision would have any material impact on PR or other members of the family.
However, the Tribunal assesses the magnitude of the impact on MH and the son as minimal. First, the child has had little direct contact with the Applicant since his imprisonment in May 2023 and only limited contact beforehand. Secondly, the Applicant’s stated intention is to move to NSW if he is released from detention to live with his brother so that the child would have similar opportunities to contact the Applicant by telephone or via the internet in NSW as he would if the Applicant were in New Zealand. Even direct contact would only be marginally more onerous for MH if she had to travel to New Zealand compared to NSW.
Taking these matters into account the Tribunal finds that the impact on MH and her son of a decision not to revoke cancellation of the Applicant’s Visa is a consideration in favour of revocation but is one that attracts little weight.
Impact on Australian Business Interests
Paragraph 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has a limited work history. There is no evidence that the Applicant possesses any special skills which could not be sourced in the general labour market.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
Accordingly, the Tribunal gives this consideration no weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[57] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[57] [2016] FCA 1166 at [38].
A summary of the factors for and against revocation is set out below:
Factors Against
There are two considerations under Direction 99 which weigh against revoking the cancellation of the Applicant’s Visa:
(a)The Applicant’s offending was very serious and involved violence and the infliction of serious physical and psychological harm on members of the community. While there is a low risk that the Applicant will engage in further sexual offending, he represents a moderate risk of committing other crimes, including crimes of violence, in the future. The protection of the Australian community is a primary consideration under Direction 99 and the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
(b)The expectation of the Australian community is that the Applicant, as a non-citizen, will obey Australian laws while in Australia. This is a primary consideration which favours not revoking the cancellation of the Applicant’s Visa and having regard to all of the circumstances, the Tribunal gives it substantial weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all the considerations.
Factors in Favour
There are five considerations which weigh in favour of revoking the cancellation of the Applicant’s Visa:
(a)The strength, nature and duration of the Applicant’s ties to Australia is a primary consideration which weighs in favour of revocation but it does not warrant more than moderate weight.
(b)It would be in the best interests of the Applicant’s son for the cancellation of the Visa to be revoked, but given that the Applicant has no parental role, has had limited contact with the child and does not intend to have very much direct contact in the future, the Tribunal gives this consideration limited weight notwithstanding that it is a primary consideration.
(c)The legal implication of a decision not to revoke the cancellation of the Visa is deportation of the Applicant to New Zealand and his continued detention pending removal. This consideration weighs in favour of revocation but it is not a primary consideration under Direction 99 and the Tribunal gives it little weight.
(d)The Applicant would face some impediments in establishing himself and maintaining basic living standards in New Zealand, but these impediments are not so great as to attract more than minimal weight in favour of a decision to revoke the cancellation of the Applicant’s Visa.
(e)The negative impact on MH and her son of a decision not to revoke cancellation of the Applicant’s Visa is a consideration in favour of revocation but it is one that attracts little weight.
Conclusion
Paragraph 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[58]
[58] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in para 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(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 noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal accepts that these principles generally reinforce the importance of the factors weighing in favour of not revoking the cancellation of the Applicant’s Visa.
Aspects of the Applicant’s conduct have offended these principles. His offending has involved a range of criminal behaviour which has demonstrated a disrespect for Australia’s law enforcement framework. He has committed offences which have caused serious harm to individuals in the Australian community, and in particular the long-term harm to the victim of his incest offence, to her family and to his son. He is not a person who has lived in Australia from a young age. His formative years were spent in New Zealand and he returned to Australia as an adult. His offending began within a short time after his arrival. While he has been in Australia for some nine years, he has made little positive contribution to the community.
The protection of the Australian community is a primary consideration. The Applicant represents a risk of further criminal conduct. While the risk of further sexual offences is low the kind of offence for which he was convicted is very serious, particularly because it was against a child. In addition, he represents a moderate risk of other offending including crimes of violence. His offending raises serious character concerns. The cancellation of the Applicant’s Visa is a measure aimed at protecting the community from these risks and attracts substantial weight.
The deemed expectation of the Australian community as stated in para 8.5 of Direction 99 is that non-citizens will obey the law and those who engage in serious conduct in breach of this expectation or pose an unacceptable risk that they may do so, should not remain in Australia. This is a primary consideration and in the Applicant’s case, having regard to the circumstances, warrants substantial weight.
Against these considerations are a number of considerations of lesser significance in favour of revocation. Two of these are primary considerations.
The strength, nature and duration of a non-citizen’s ties to Australia is an important factor. In the Applicant’s case these ties are not particularly strong. He has an extended family in Australia but did not demonstrate that he had close ties with his extended family. His conviction for incest may well have influenced those relationships. Ms Fleming reported that the Applicant had expressed feelings of abandonment when she assessed him in 2023. The Applicant’s mother gave evidence for the Applicant and expressed her love for him and MH expressed the view that he was not a bad person notwithstanding that what he had done was bad. Beyond this there was no indication of close ties with his family other than his older brother. He said he had not made friends since coming to Melbourne in 2017 other than one person in Sydney whom he had met online. He had a sporadic work record and was unable to identify any other community involvement. The Tribunal attributes only moderate weight to this primary consideration.

The second primary consideration is of the best interests of minor children. The Applicant identified his son as a minor child whose best interests would be served by a revocation decision. However, the evidence did not establish that this was a strong factor. The Applicant has not fulfilled a parental role, except perhaps briefly when the child was about one year old and has expressed his intention not to do so if released into the community. Both MH and PR confirmed that the child is properly cared for by MH supported by the family and that they had no expectation that the Applicant would perform that role. There was also no expectation that the Applicant would financially support the child. In addition, the Applicant indicated an intention to move to NSW to live with his older brother and thereby limit any direct contact with his son. In effect this would mean that the son would have similar means of contacting the Applicant if he was deported to New Zealand as if he remained in Australia after the revocation of the cancellation of the Visa.
The three remaining factors in favour of revocation are not primary considerations and do not warrant significant weight.
Weighing up these factors the Tribunal is satisfied that the considerations in favour of not revoking the cancellation of the Applicant’s Visa outweigh the considerations in favour of revocation. Accordingly, the Tribunal is satisfied that there is not another reason why the cancellation of the Applicant’s Visa should be revoked under s 501CA(4)(b)(ii).
DECISION
The decision under review is affirmed.

I certify that the preceding 152 (one-hundred-and-fifty-two) paragraphs are a true copy of the reasons for the decision herein of Member R. West

…………[sgd]……………………….
Associate
Dated: 8 February 2024

Date of hearing: 30 January 2024

Advocate for the Applicant: Self-Represented

Advocate for the Respondent: Mr Adrian Downie

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	30 January 2024
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Mr Adrian Downie
Solicitors for the Respondent:	Australian Government Solicitor