TGXY and Minister for Home Affairs (Migration) - [2019] AATA 757

TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (24 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0534
Re:TGXY
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member Tigiilagi Eteuati
Date:24 April 2019
Place:Brisbane

The decision under review is affirmed.
..............................[SGD..........................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 65 – how expectations of the Australian community are determined – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166
Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Toki and Minister for Home Affairs (Migration) [2019] AATA 742
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
High Court Rules 2004
REASONS FOR DECISION
Member Tigiilagi Eteuati
24 April 2019
BACKGROUND

This is an application by TGXY (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 30 January 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class BF Transitional (Permanent) visa.[1]
[1] G Documents, G10, pages 30 - 42, Notification of decision not to revoke visa cancellation decision made under s501(3A) of the Migration Act 1958, dated 30 January 2019 and attachments.
The Applicant is an 80 year old citizen of the United Kingdom who was born in 1939. The Applicant arrived in Australia in October 1965. The Applicant’s Class BF Transitional (Permanent) visa was cancelled under section 501(3A) of the Act on 23 June 2017. The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. On 7 July 2017, the Applicant sought that the cancellation decision be revoked. On 30 January 2019, the Minister refused to revoke the cancellation of the Applicant’s visa. On 1 February 2019, the Applicant applied to this Tribunal for review of that decision.
The matter was heard on the 11 April 2019. For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
a.Whether the Applicant passes the character test as defined in section 501 of the Act; and
b.Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that, there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A10 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R13. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 35 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
The Applicant’s National Police Certificate records the Applicant as having the following disclosable court outcomes:[2]
[2] G Documents, G11, pages 43 – 45, National Police Certificate, dated 9 November 2017.
(a) On 17 February 2016, the Applicant was convicted of the below offences. On 14 April 2016, the Applicant was sentenced as follows:
(i)On count 1 of sexual assault (cat 4) – assault & commit ACT of indecency, the Applicant was sentenced to 2 years and 6 months imprisonment.
(ii)On count 2 of sexual assault (cat 4) – indecent ACT with person < 16 Years, the Applicant was sentenced to 18 months imprisonment.
(iii)On count 3 of sexual assault (cat 4) – indecent ACY with person < 16 Years, the Applicant was sentenced to 18 months imprisonment.
(iv)On count 4 of sexual intercourse with person under the age of 10 years, the Applicant was sentenced to 4 years imprisonment.
(b) On 25 August 1976, the Applicant was convicted of indecent exposure and received a recognisance (good behaviour bond) of $100 for 12 months.
With respect to the charges for which the Applicant was sentenced on 14 April 2016, the Applicant pleaded not guilty to each of the four counts and on 17 February 2016 the jury unanimously found the Applicant guilty in respect of each of the four counts.[3]
[3] G Documents, G12, pages 46 – 70, Sentencing Remarks of Charteris J, April 2016.
The effective sentence was five years and nine months imprisonment with a non-parole period of two years and three months imprisonment. The Applicant is subject to parole until 16 November 2021.
The Applicant appealed the conviction, with the New South Wales Court of Appeal dismissing the appeal on 19 June 2017.[4]
[4] G Documents, G13, pages 71 – 95, Copy of decision in BM v R [2017] NSWCCA 133.
I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of more than 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)    Primary considerations should generally be given greater weight than the other considerations.
(5)    One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(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.
Summary of evidence of witnesses
The following is a summary of the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant was born in Glasgow, Scotland in the United Kingdom in 1939. He lived there until he travelled to Australia in 1965 at the age of 26. Prior to coming to Australia, the Applicant completed secondary school and then completed vocational courses in poster writing, ticket writing and calligraphy. He used these qualifications to produce commercial art including advertising posters. The Applicant also indicated that prior to arriving in Australia he had worked as a driving instructor and had served in the British Armed Forces.
On arriving in Australia the Applicant was employed as a coach captain, driving buses inter-state. He commenced working for the Australian Broadcasting Corporation (ABC) in 1968 where he was employed for 23 years until he retired in 1990. The Applicant indicated that he retired in 1990 due to stress and because he had been suffering from a medical condition which affected his balance. The Applicant’s first position was as a technician’s assistant. He then became a cameraman, then a senior cameraman, then a visual controller and then a senior visual controller. After that he was promoted to be a studio coordinator and then to an area manager for ABCs New South Wales Studios.
The Applicant said that since 1990 he has supported himself on savings and superannuation earned during his work at the ABC.
The Applicant indicated that he and his partner own their home in rural Queensland but that he had exhausted all of his superannuation and savings on legal fees expended on his court cases relating to his offences.
The Applicant said that he owed New South Wales Legal Aid $25,000 to $30,000 plus ongoing interest of three and three-quarter percent on that amount. The Applicant indicated that the money owed was secured against the property that he and his partner owned.

The Applicant explained that, if he sold, re-financed or re-mortgaged his property, he would have to immediately repay New South Wales Legal Aid the amount that he owed.
The Applicant explained that in February 2019 he had sought an extension of time to seek special leave to appeal to the High Court from the decision of the New South Wales Court of Criminal Appeal of 19 June 2017. He said the delay in applying to the High Court from that decision was due to delays in obtaining grants from New South Wales Legal Aid to fund advice relating to the appeal and the appeal itself. The Applicant indicated that he had been advised by his legal representatives that if an appeal proceeded before the High Court it would cost approximately $60,000 which New South Wales Legal Aid would fund but ultimately seek to reclaim from the Applicant.
The Applicant indicated that he had no idea when the High Court was likely to decide the special leave application.
The Applicant indicated that he had received an age pension from the age of 65 but all Government support had ceased once he had been imprisoned. He said he understood that if he were allowed to remain in Australia he would receive an age pension. He said his partner had been receiving $250 a week on Newstart allowance but she was currently receiving an age pension.
The Applicant said that he had made no enquiries as to whether he would be eligible to receive government benefits in the United Kingdom but he did not think that he would be eligible to receive such benefits.
The Applicant said that, if his visa remained cancelled and he was required to return to the United Kingdom, his partner would not return with him. He said she would be unable to relocate with him to the United Kingdom owing to her medical condition and that she was an Australian citizen.
The Applicant said that his partner had epilepsy and severe incontinence which prevented her from flying. The Applicant had provided a letter from a doctor dated 4 April 2016 in relation to his partner’s medical condition. That letter indicated that the Applicant’s partner had epilepsy, high blood pressure, high cholesterol, she suffered from cramps, arthritis and thyroid disease. The doctor expressed concern that it was possible that the Applicant’s partner could suffer from an epileptic seizure or a heart attack and because the Applicant’s partner lived in an isolated rural area, there would be no one around to secure medical or ambulance services for the Applicant’s partner if she were to suffer from a seizure or a heart attack.
The Applicant indicated that his partner was currently 65 years of age and she had never travelled overseas. The Applicant himself indicated that he had only ever travelled overseas once since his arrival in Australia in 1965, when he travelled to the United Kingdom for less than a month in 1978.
The Applicant indicated that he and his partner had performed charity work and had commendations from the Cancer Council of Queensland for charity work. He said he was a registered organ donor. He said that he was a member of the RSL as he served in the British Armed Forces between 1959 and 1962.
The Applicant explained that, Witnesses A and B, a couple who were friends with the Applicant and his partner, had two young granddaughters. The Applicant explained that he had had some contact with the elder child prior to his imprisonment. He said that he and his wife would be invited to parties, barbecues and other social occasions where the children would be present.
The Applicant also informed the Tribunal that prior to his imprisonment he had regularly attended the local markets where there was a children’s playpen where a large number of children would gather. The Applicant explained that, prior to his imprisonment, he and his partner used to sell plants, trees and strawberries, which had been grown on his property, at the markets.
The Applicant said that he loved his partner very much and that he would be separated from her permanently if he had to depart Australia. He said he was concerned for her safety as at one point she had been threatening self-harm as a result of the stress caused by the risk of the Applicant having to depart.
The Applicant said that he had not committed the crimes for which he was convicted, had always maintained his innocence and that he found it “disturbing” and “disgusting” that the “judicial system could be manipulated” in the way that it had been in this case.
The Tribunal raised with the Applicant that the delegate had found that, because he had maintained his innocence, he had not expressed contrition and this along with the fact that the Applicant had not undergone any rehabilitation programs, meant there was a risk the Applicant would reoffend. The Applicant indicated that the presentencing report provided evidence that he presented a low risk of reoffending. He said he had not expressed contrition or remorse as he had not committed any offences and had done nothing wrong. The Applicant also said that the Tribunal should rely on the various letters from his friends and his partner in support of his position that he would not offend.
The Applicant admitted that, if he were allowed to remain in Australia, he would be likely to have ongoing contact with the two child granddaughters of Witnesses A and B, and contact with children at the local markets.
The Tribunal asked the Applicant whether his age and ill health would have an impact on his ability to sexually assault children in the future. The Applicant said that he would never dream of harming children sexually.
The Applicant told the Tribunal that he had never had any sexual interest in children. He said the victim had been a “relatively nice little child” but had become an “extremely nasty adult”. He said he had no idea what the victim’s motivation was for making the accusations against him.
The Applicant made reference to a doctor’s letter dated 2 December 2015 in the G Documents which outlined his medical conditions. That letter indicated that the Applicant suffered from haemochromatosis; high blood pressure; had an ulcer that caused gastric reflux; bad cramps; a fatty liver; Meniere’s disease; an enlarged prostate; varicocele; tinnitus; and a hiatus hernia/rupture. The Applicant claimed he still suffers from all of these conditions.
The Applicant’s partner
The Applicant’s partner told the Tribunal she met the Applicant when she was 19 years of age in 1972. They commenced a relationship in around 1976 and in 1981 they moved in to a house together. The Applicant’s partner said she had been separated from the Applicant since 17 February 2016, the day the Applicant was convicted of his crimes and imprisoned.
The Applicant’s partner indicated that she had travelled domestically by aeroplane but she had never left Australia. She indicated that, if the Applicant was ultimately unsuccessful in these proceedings and had to return to the United Kingdom, she would not relocate to the United Kingdom to be with him. When the Tribunal asked her why she would not relocate to the United Kingdom to be with the Applicant, she said “I’ve got animals. I own a property, it’s got to be sold and I couldn’t live over there anyway.”
The Applicant’s partner indicated she was receiving Government benefits but that she was in a dire financial situation. She said she had no savings, the couple owed money to New South Wales Legal Aid, she had $17,000 owing on a credit card and a number of unpaid bills. She indicated that she would be unable to meet her financial expenses unless they sold their property.
The Applicant’s partner indicated that she understood that, if the Applicant was required to leave Australia, the couple would have to sell their property immediately to repay New South Wales Legal Aid some $20,000 plus interest which had been expended on the Applicant’s legal representation to date. She said she understood that if an appeal proceeded before the High Court there would a further $60,000 owed to New South Wales Legal Aid. She said her understanding was if the Applicant passed away, or was removed from Australia, New South Wales Legal Aid would require the property to be sold immediately so that they could be repaid the money owing to them. She said she understood the property could be on the market for 12 months after which time it would be sold for whatever value was acceptable to New South Wales Legal Aid. She said that if the Applicant were allowed to remain in Australia, the couple would be allowed to repay the debt over time and, if there was money still owing to New South Wales Legal Aid upon the Applicant’s death, she would have to sell the property at that point.
The Applicant’s partner indicated that she had their property valued in December 2018 and the valuation indicated the property was worth $500,000. However, she said since that time the value of the property may have decreased as some of the fixtures had broken down including an air-conditioner, the dishwasher, the sullage pump and the solar inverter. The Applicant’s partner admitted that the real value of the property was in the two and a half acres of land.
The Applicant’s partner indicated she could not make repayments to New South Wales Legal Aid or afford to pay all of her outstanding bills. She said she received $926.80 per fortnight on an age pension, with no other source of income.
The Applicant’s partner she said had two cats and four chickens living with her on the property. She said she could not leave Australia and abandon the animals. In addition, she said she hated the cold weather in the United Kingdom and loved the hot weather in Australia. She said she was terrified of flying and hated the thought of travelling by plane with the possibility the plane would be “bombed by a terrorist.”
The Applicant’s partner also indicated that she was taking a number of medications and it would be a “hassle getting out of the country for a start.” She said she would be unable to sell the property from overseas. She said there had been times when she had felt like committing suicide and the only thing that had prevented her from doing so was the love she had for her cats.
The Applicant’s partner indicated that, prior to the Applicant’s imprisonment, the couple had lived in relative solitude and had only six good friends: Witnesses A and B who had two young granddaughters, a man in his 30s they had met at the markets, his parents, and a retired public servant who had known the Applicant since 1967. The Applicant’s partner indicated that neither she nor the Applicant had any remaining family.
The Applicant’s partner indicated that she had regular contact with Witnesses A and B and their two young granddaughters. She anticipated that, if the Applicant were permitted to remain in Australia, she and the Applicant would continue to have contact with that couple and their granddaughters. The Applicant’s partner also confirmed that, prior to the Applicant being detained, she and the Applicant would attend the local markets every fortnight to sell plants from their property and that there would be children at the markets. The Applicant’s partner said she anticipated that, if the Applicant were allowed to remain, he would have contact with their friends’ grandchildren and the children at the markets. She said it was likely that the Applicant would also have contact with children when they went shopping at a local town once a week.
The Tribunal asked the Applicant’s partner whether she had anything to say about the Applicant’s ability to harm children in the future. She said “he wouldn’t touch them with a 40 foot pole.” She said the Applicant had contact with one their friends’ granddaughters prior to his imprisonment. She said the Applicant would have contact with the little girl at social occasions including birthday parties. She said the Applicant loved their friends’ granddaughter but not in any inappropriate way. She said that at these functions, “[child’s name] would run up to him and cuddle and say, “hi [Applicant’s name], how are you going?”, as simple as that, nothing else.”
The Applicant’s partner said she was unsure of the ages of their friends’ two granddaughters. She said that one was at preschool and the other would start school next year.
The Applicant’s partner indicated that, if the Applicant was required to leave Australia and she had to sell the property, she would be left with several hundred thousand dollars. She said this would probably be enough for her to buy a small house on a block of land. She said that if the Applicant had to leave Australia, the few friends she had could not provide her with any financial support. She indicated they may be able to provide her with other support including emotional support but that would be limited as all of her friends lived quite some distance from their property.
The Applicant’s partner indicated that she did not know how the Applicant would survive if he were removed to the United Kingdom. She said that he knew no one in the United Kingdom, and he would have no money and no place to live. She said he would not receive any government assistance. She said that the Applicant used to receive a British pension of $125 a month but this had ceased once he had been imprisoned.
The Applicant’s partner said she had been unable to visit him when he was in prison but they would speak almost every day by telephone. She said that since the Applicant has been in immigration detention, in addition to daily telephone calls, she has been able to visit him on occasion.
The Applicant’s partner indicated that, if the Applicant had to return to the United Kingdom, she would try to maintain the relationship by contacting the Applicant by telephone and possibly by email. She said she would not visit him in the United Kingdom.
The Applicant’s partner indicated that she had worked for the Commonwealth Bank for 20 years with that employment ending in 1992. She said that after her employment with the Commonwealth Bank she had worked for a friend for two years before retiring.
Witness A
Witness A is a friend of the Applicant and his partner. She and Witness B, her husband, are the couple who have the two young granddaughters mentioned previously.
Witness A indicated that she met the Applicant and his partner in 1998. She said she and her husband have become best friends with the Applicant and his partner. She said the Applicant and his wife have helped her and her husband through difficult times.
Witness A said she was aware of the offences for which the Applicant was convicted but did not believe he was guilty of those offences. She said she has a 34 year-old son who has two daughters, aged six and four and a half. She indicated that she “wouldn’t necessarily” leave her granddaughters with the Applicant as he is an 80-year-old man and they would be a handful for him. However she said she would have no hesitation in visiting the Applicant and his wife with her granddaughters.
Witness A said the Applicant and his partner had contact with their son from the time he was about 11 years of age (he is currently in his thirties). The son of Witnesses A and B met the Applicant and his partner when he was around 11 or 12 and would often be cared for by the Applicant and his partner while Witnesses A and B were working. Witness A indicated that their son was close to the Applicant and his partner and there was never any suggestion that there had been inappropriate contact between the Applicant and their son.
Witness A said that, if the Applicant were required to leave Australia, she would continue to provide his partner with emotional support but she could not provide her with financial support. Similarly, Witness A said she had her own medical problems so the support that she provided to the Applicant’s partner would be limited. She said she could not provide physical support by, for example, assisting with housework owing to her medical condition.
Witness A indicated that the Applicant and his partner only had regular contact with a select group of friends and that, for the most part, they kept to themselves.
Witness B
Witness B is the husband of Witness A and a close family friend of the Applicant and his partner. Witness B indicated that he believed that the Applicant was innocent of the offences for which he was convicted. For the most part Witness B’s is evidence was that he considered the Applicant to be of good character.
The Applicant had also provided the Tribunal character references from two other men. However, the Tribunal was unable to reach those men to give evidence by telephone on the day of the hearing. The Tribunal has carefully considered their statements and all of the statements in support of the Applicant in the G Documents.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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 Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)   The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)   The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)   Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)    The cumulative effect of repeated offending;
g)   Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)   Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The nature of the Applicant’s offending was described by the sentencing judge as follows:
“She recalled a particular event that had occurred. She said that the offender walked with her to one of the dams on the property Delvin. She said no one else was with them. She said they went to the second of the two dams, the one that was further from the house. She said that they advanced to a culvert. The offender at this stage would have been about 50 years of age and she was seven years of age. She described that there was a culvert with a concrete pipe between the two dams. She said that the offender exposed himself; he had taken his penis out. She did not recall any conversation with him as the two walked to the dam. She was not able to give any evidence as to where his clothing was positioned when he took his penis out. The offender then, on her evidence, took her hand and put it on his penis. She did not recall any conversation; but she said the offender “got me to rub him”. At that stage the offender was sitting on the culvert. The pipe was not less than a couple of meters in length. She could not recall where she was positioned. She said the offender moved her hand up and down his penis. She recalled him groaning and ejaculating. He used a tissue or handkerchief to clean himself thereafter.
The complainant said during that same visit, but on a different day to the first count, she again was in her grandfather’s house at Delvin. She said that she was at that stage with the offender in the eastern side of the house in an enclosed veranda. She said there was furniture within the veranda. The offender at the time was lying down either on a bed or a couch; he was fully stretched out. Again the offender exposed his penis and the complainant, [victim’s name], then touched his penis with her hand by rubbing it. She noticed that the offender was wearing red underwear. Again he ejaculated and cleaned himself up with a tissue or handkerchief. She did not recall any other event that occurred on that couch or bed. She said that she was on top of him at one stage and said to him, “Let’s do it” and he replied either “I’ll break you” or “It will break you”. She recalled that others were present in the house on that day.
…
She could not recall how old she was when the second visit occurred. She was younger however than 10 years of age but she recalled that her grandfather was still alive at the time.
…
She said again she was at a dam, but this time at Amondale. It was a dam that was near the Homestead, only about 700 meters from that house. She remembers being on a culvert between a big dam and a little feeder dam not far from the Amondale house. The offender was with her. Again the offender was on the pipe. She could not recall if he was sitting or standing. Again he had his penis exposed. She rubbed his penis. She could not recall if he ejaculated. She could not recall any conversations between them; she was unable to give an estimate as to how long she rubbed the offender’s penis.
She was asked if anything else had occurred during that visit to Amondale. She recalled the fourth count in the indictment. She was in her own bedroom at Amondale and she remembers the offender “guiding” her to her parents’ bedroom in that residence. She sat down on an old chair in her parents’ bedroom. It was known to her as her mother’s chair and had previously been her grandmother’s chair. She remembered that the offender performed oral sex upon her. She was wearing a dress or a skirt at the time. She was sitting on the chair and the offender was kneeling right in front of her. His face was upon her vagina and his tongue, she said, was in her vagina and around it. The offender was holding her body to his face. He had his hand under her bottom.
She said that only she and the offender were present in respect of that event, but at one stage her aunt [Applicant’s partner’s name], the offender’s partner, walked into the room. The offender was at that time performing oral sex upon her. She alleged that her aunt [Applicant’s partner’s name] said to the offender “what are you doing?” and the offender replied “Nothing”. Her aunt then looked at her and her aunt’s expression was a look that expressed she was “mortified” by what she had discovered. Aunt [Applicant’s partner’s name] then left the room and the offender then continued to engage in oral sex. She was not able to determine whether that offence in count 4 occurred on the same or a different day to the offending conduct in count 3.
She did not make any complaint to anyone thereafter. Indeed she did not make a complaint to police until 2013 when, in June of that year, she made a statement to Inspector Best. At that stage she was about 31 years of age.”

The sentencing judge found that the complainant was about seven years old in respect of the first two offences and about nine years old in respect of the second and third offences.
The sentencing judge made the following remarks relevant to the seriousness and nature of the offending:
“In my view there must be reflected in the sentence a message to be sent to like-minded individuals that if you sexually assault children, no matter when you are brought to justice, a significant punishment will be imposed upon you.
…
As regards the first count in the indictment, that was the indecent assault when the offender exposed his penis and put the complainant’s hand on his penis and encouraged his masturbation by her to the point of ejaculation. The maximum penalty is four years imprisonment. I consider there should be a sentence of two years and six months in respect of this matter. I have taken into account the age of the child. This was a very serious indecent assault. As regards the second count in the indictment, which was committing an act of indecency with [victim’s name], that offence carries a maximum penalty of two years imprisonment. That conduct of course involved the exposing of his penis and the complainant masturbating him to ejaculation in the veranda of the residence of Delvin. The first count of course occurred at a dam near Delvin. That second count was a serious example of an offence of this nature. I consider a sentence of 18 months is appropriate. I have regard to the fact the offender was about 50 years of age and the complainant was a girl of about seven years.
As regards the third offence, that of being the masturbation of the offender at a dam near the Amondale residence, that also is an allegation of the offender committing an act of indecency with the complainant. She was about perhaps eight or 9 years of age. That was a serious example of such criminal behaviour. A penalty of 18 months imprisonment head sentence is appropriate for that matter. As regards count 4 the complainant was about 9 years of age but not 10 years. The offender was 50 years of age or thereabouts. This was a very serious criminal offence. Of course regrettably there are far more serious examples of such crimes of sexual intercourse with a child under the age of 10. I have taken into account all of the circumstances and have reached a head sentence of four years in respect of that matter.”
[my emphasis]
The sentencing judge made the following remarks regarding the impact of the Applicant’s offending on the victim:
“In her victim impact statement the complainant notes that she will have to carry memories of the incidents for the rest of her life. She had no control as to when memories would come back to her or what would trigger them. When the memories do return she described them as “absolutely terrifying” as she can remember very traumatic details of the events. She believes the events reflected in the indictment have made her relationship with her parents difficult. For a long time she had believed her parents knew that the events had occurred but, as an adult now, she realises that her parents did not know. Her relationship with her mother in particular has been difficult. She says that she believes she will most likely always have “trust issues”. She has issues with the trusting of people and that makes her own relationships difficult. She said that relationships always “require work” but, because of the memories that are triggered on occasions, her relationships are “even harder for me”; the memories “will not go away”. I have taken into account the victim impact statement.”
In addition to the above impacts described by the sentencing judge, in her victim impact statement, the victim stated:
“I find it very difficult to just be ’present’ when I am in an intimate relationship with someone. Those memories have been very real for me when I’ve been in relationships, they feel like they are actually happening right at that time, and so it’s difficult for me to just accept them in order to be in the moment with a partner/boyfriend. And this is also where the trust issues happen, I think.
I have needed help with how to accept these memories and how to not fight them when they come up for me.
I believe that relationships require work, but, that with these memories which I have no choice but to accept, relationships are even harder for me.
I believe this has had a significant effect on my relationship with my parents. It doesn’t matter how many gifts or treats my mum buys me, it will not take the memories away.”
In her statement to police dated 20 June 2013, the victim stated:
“The first time I told anyone in detail was a psychologist last year. I went to this psychologist because I realised the incidents with [the Applicant] were still affecting me, and my ability to have a normal healthy relationship with a man. During the sessions with the psychologist, [psychologist’s name], I disclosed in relative detail what [the Applicant] did to me. I had two or three sessions with her.
After this, when I was in the UK, I saw another psychologist because I was struggling to cope after speaking with [psychologist’s name]. I think speaking with her brought it back into my thoughts and I realised I hadn’t dealt with it like I thought I had. Then speaking with the psychologist gave me some direction and it was then that I contacted the police.”
As can be seen from the sentencing judge’s remarks the Applicant’s offending consisted of appalling sexual interference with a child under the age of 10 on four occasions.
Paragraph 13.1.1(1)(a) of the Direction provides for the principle that sexual crimes are viewed very seriously.
Paragraph 13.1.1(1)(b) of the Direction provides for the principle that violent crimes against children are viewed very seriously regardless of the sentence imposed. In any event, the Tribunal considers that the sentence imposed on the Applicant for his offending is significant and is indicative of the serious nature of his sexual offences against the child: see also paragraph 13.1.1(1)(d).
Paragraph 13.1.1(1)(c) of the Direction provides for the principle that crimes committed against vulnerable members of the community are serious.
The Applicant has been convicted of multiple sexual offences against the child under 10 years of age. His final offence of sexual intercourse with a person under the age of 10 years was more serious than his other three offences and this was reflected in the sentence which he received for that offence.
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. Of course, the Tribunal is aware that the Applicant has always maintained his innocence despite being convicted on all four counts for which he was charged.
The Applicant has not sought to hide his criminal offending from the Department. He has not been formally warned by the Department and the offences were not committed while the Applicant was in immigration detention or during or after an escape from immigration detention.
The Applicant’s offending had a profound negative effect on his victim. The victim was only a little girl when she was repeatedly assaulted by the Applicant. She has described the various negative impacts on her life including that: she has had to seek psychological assistance to deal with the trauma of the offending; the offending has had a serious negative effect on her relationship with her parents; the offending has had a serious effect on her ability to form and maintain intimate relationships with men; she has “absolutely terrifying” memories of being assaulted by the Applicant; when she has the memories she feels like she is reliving the events; and she has “trust issues” and finds it very difficult to trust other people.
While the Applicant has always maintained his innocence in relation to the offences, he described the offences for which he had been convicted as being very serious and “disgusting”.
The Tribunal is of the view that the Applicant’s offending conduct was very serious. The nature of the offending was that the Applicant sexually abused a young girl on four occasions while she was in a vulnerable position and had put her trust in the Applicant.
The Tribunal notes that on 25 August 1976 the Applicant was convicted of indecent exposure and received a recognisance (good behaviour bond) of $100 for 12 months. The Applicant explained to the Tribunal that the events leading to this conviction were that he was urinating in public. For the purposes of this decision the Tribunal accepts the Applicant’s explanation for the offence. Given that this offence was a relatively minor offence in the context of his later offending, the Tribunal places no further weight on that conviction in the exercise of its discretion.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
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 reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent or sexual offences.
In his written contentions the Respondent stated:
“The nature of the harm to individuals should the applicant engage in further criminal or serious conduct is so serious that any risk of similar conduct in the future is unacceptable.”
That submission echoes the principle in paragraph 6.3(4) that:
“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...”
The Applicant submitted that he maintained that he had never committed the offences for which he was convicted and had never committed any offences against children. He said he could not and would not ever commit sexual offences against children.
It is not for the Tribunal to determine the innocence or guilt of the Applicant for the offences. That task has been undertaken by the criminal justice system. The Applicant was found guilty by unanimous verdict of a jury and his appeal was dismissed by the New South Wales Court of Criminal Appeals. Notwithstanding the current application for special leave to appeal to the High Court of Australia, the Tribunal must proceed on the basis that the Applicant is guilty of all four offences in the way alleged against him. That is, the Tribunal must accept that the facts alleged against the Applicant constituting the offences have been made out.
The Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young girls. The effects of that kind of offending have been expressed in the victim’s victim impact statement which was before the Tribunal and summarised by the sentencing judge. Some of those effects have been mentioned above, and include severe psychological injury and potential serious physical injury.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In the presentence report for the Applicant dated 7 April 2016, a Community Corrections Officer indicated that a Corrective Services New South Wales psychologist had assessed the Applicant as presenting a low risk of sexual recidivism.
The report states:
“[Applicant’s name]’s risk of committing a further sexual offence has been measured using the Static - 99R. He has been assessed by the Community Corrections psychologist as being at a low level of risk. A Pre Sentence Consultation by the psychologist is attached to this report.
Given the nature of the offences, it is also noted that, if convicted, [Applicant’s name] would be a registrable person under the Child Protection (Offenders Registration) Act 2000.
Attitude to offending
[Applicant’s name] categorically denied committing the offences. He described sexual assaults on children as “sickening” and “disgusting”. He maintained that he has no sexual interest in children and is not aroused by them.
[Applicant’s name] believed that the victim made the allegations against him in the hope of obtaining a financial benefit as the victim of a crime.
RISK LEVEL AND CRIMINOGENIC NEEDS
According to the Level of Service Inventory - Revised actuarial risk/needs assessment tool, the offender is assessed as a low risk of re-offending.
The identified criminal genetic needs are:
·Family/marital. This reflects the fact that the offender has no surviving family or relatives.
…
Access to programs and services
As indicated in the Psychologist Pre Sentence Consultation, [Applicant’s name] assessed risk level makes him unsuitable for custodial sex offender treatment programs.
Should he remain in the community, and return to Queensland as anticipated, Queensland Corrections are likely to administer their own assessment. Group sex offender programmes are run at the Ipswich Corrections office, however as [Applicant’s name] denies the offences, he would need to be independently assessed for suitability to join the programmes. Alternatively, forensic psychological services are available in Brisbane, though it is noted that any such sessions would be at the offender’s expense.
…
Supervision by Community Corrections
It is considered the offender would benefit from a period of supervision by Community Corrections. Although specific sex offender treatment has not been recommended by the assessing psychologist, case management strategies could include a more comprehensive risk assessment and monitoring compliance with requirements of the Child Protection Act.”
Unfortunately, the psychological assessment by the Corrective Services New South Wales psychologist was not before the Tribunal.
The Applicant maintains that he is innocent of the offences for which he has been convicted. He has described sexual offences against children as “disgusting” and claimed that he would never sexually offend against any child. In his written contentions, after mentioning his age and mobility difficulties and mentioning that he and his partner live in relative solitude on their rural property, the Applicant has stated that “it would be physically impossible for me to offend, even if I were so inclined.”
In his written contentions, the Respondent stated:
39.   “To the extent the applicant contends that ’it would be physically impossible for me to offend’, such a contention ought to be rejected. Although the Applicant’s pre-sentence report identified a “low” level of risk of re-offending (see pp7-10 of attachment A), it did not identify there was “no” risk of re-offending or “no possibility” of re-offending.
40.   Furthermore, the applicant’s continued denials demonstrate a lack of remorse. In circumstances where the Applicant is not prepared to admit his criminal conduct and there is no evidence of rehabilitation to addresses offending conduct, it could not be said that there is no risk of re-offending.
41.   Furthermore, for the purpose of the Tribunal proceedings, relevantly, no challenge can be made to the fact of the conviction or to the essential facts on which it was based: HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]-[79].
42.   The applicant has produced numerous character references including from his current de facto partner (see G20/128, G22/131, 132, G23/134, 136, G24/137, 140 and G25/142) and those filed with the Tribunal on 11 March 2019. To the extent the applicant’s character references seek to attest to the applicant’s character or likelihood of reoffending, this must be viewed through the prism of being from people who support the applicant and who do not accept he committed the sexual offences. In contrast in the present matter, the Tribunal’s review proceeds on the basis that the applicant did commit the sexual offences and the Tribunal’s assessment of the likelihood of the applicant reoffending has to be made on that basis: LQZW and Minister for home affairs (Migration) [2019] AATA 93 at [92].”
The Tribunal accepts the Respondent’s submission that for the purpose of these proceedings no challenge can be made to the fact of the Applicant’s convictions or to the essential facts on which the convictions are based.
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence, summarised the applicable principles as follows at [78]-[79]:
“(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.”
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP at stated at [92]:
“…The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.”
As in HZCP and LQZW, the convictions in question in this case were a precondition to the decision under section 501(3A) of the Act and the exercise of the discretion by the Tribunal. In the present case, as in LQZW, the Tribunal has to proceed on the basis that the Applicant did commit the sexual offences for which he was convicted and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
The Tribunal has considered matters going to the Applicant’s ability to reoffend including his age and health and the opportunities which he may have to interact with young children and potentially offend against them.
The Applicant is an 80-year-old man with the frailty that comes with that age. He suffers from a number of medical conditions, including Meniere’s syndrome, a condition affecting balance. He manages that condition with the use of medication and the aid of a walking stick. The Applicant also gave evidence that he suffers from a hearing problem and requires the assistance of a hearing aid. He also suffers from the conditions mentioned above in the summary of his evidence.

The Tribunal considers the Applicant’s age and the infirmity that comes with old age are factors which may suggest the Applicant would have difficulties in reoffending in the way that he has in the past. However, the Tribunal notes the Applicant was over 50 when the offending occurred and he suffered from Meniere’s syndrome when he was offending. In addition, the nature and circumstances of the offences committed by the Applicant were not those which required any deal of vigour to accomplish.
In addition, although the Applicant has claimed that he would have no opportunity to offend as he has minimal contact with children, the Tribunal heard evidence that the Applicant was in contact with children who attended the markets where the Applicant and his partner sold plants, and would also come into contact with children when he and his partner would visit local towns to shop. There is no reason to suppose that the Applicant would not continue to come into contact with children at these places if he was allowed to remain in Australia.
Of the most concern is that the Applicant has had contact with the granddaughters of Witnesses A and B and he would have contact with the six-year-old and four-year-old granddaughters if he were to be able to remain in Australia. That contact would occur at various social functions attended by the Applicant and his partner and Witnesses A and B.
The Tribunal notes that the Applicant and his partner do not have any children or grandchildren of their own. The only evidence of the Applicant’s partner having regular contact with children other than with the granddaughters of Witnesses A and B was when the Applicant and his partner had contact with the son of Witnesses A and B, the father of the two young girls. The son of Witnesses A and B met the Applicant and his partner when he was around 11 or 12 and would often be cared for by the Applicant and his partner while Witnesses A and B were working. Witnesses A and B indicated that their son was close to the Applicant and his partner and there was never any suggestion that there had been inappropriate contact between the Applicant and their son.
These circumstances are concerning as it appears the Applicant has not had contact with, or had access to, any young girls since he offended against the victim when she was between six and 10 years of age. The Tribunal notes that the son of Witnesses A and B was obviously a boy and was already 11 or 12 years old when he met the Applicant. Of concern is that the granddaughters of Witnesses A and B are approaching the age of the victim when the Applicant offended against her.
While the Tribunal accepts that, due to the Applicant’s age and infirmity, his physical capacity to offend against young girls has diminished, the Tribunal does not accept that the Applicant is physically incapable of committing sexual crimes of the kind he has committed in the past, against young girls in the future.
Further, and importantly, the Applicant will come into contact with children if he is allowed to remain in Australia. Most notably, the Applicant will continue to have contact with the six-year-old and four-year-old granddaughters of Witnesses A and B.
Thus, the Tribunal finds that the Applicant will have both the physical ability and contact with young children to allow him to offend against children in Australia in the future if he were allowed to remain here.
The Tribunal has considered that the Applicant was living in the community unsupervised for a period of over 25 years between the time he offended and the time he was imprisoned for his offences. This fact may indicate that the Applicant does not pose a risk to the children of the Australian community as he has not offended in any way since the early 1990s. However, the weight to be attributed to this consideration is tempered somewhat by the fact that the Applicant does not appear to have had access or close contact with any young girls since he offended against the victim. As mentioned above, if the Applicant were to remain in Australia, he would have close contact with the young granddaughters of Witnesses A and B.
The Tribunal is somewhat reluctant to place any significant weight on the fact that the Applicant has maintained his innocence as a factor which increases the Applicant’s risk of reoffending. The Minister’s delegate took the approach that the fact that the Applicant had maintained his innocence meant the Applicant had not shown any remorse or contrition or insight into is offending. This in turn was said to indicate that the Applicant had not undergone any rehabilitation and thus meant the Applicant continued to present a serious risk of reoffending. This reasoning was also advanced by the Respondent in his submissions to the Tribunal.
The maintenance of innocence by a convicted offender can mean any number of things. The Tribunal recognises that the maintenance of innocence by an offender could indicate the offender is not remorseful or contrite in relation to his offending. That in turn could mean that an applicant’s mental state has not altered from the time when he or she offended and that lack of rehabilitation could point to a serious risk that the applicant could reoffend. However, the Tribunal notes that undertaking the above reasoning processes relies on the Tribunal drawing inferences or making assumptions which will advance the reasoning process from an applicant asserting his or her innocence to the ultimate step of finding that this has significance in the assessment of an applicant’s risk of reoffending. Even if the Tribunal were to find that an applicant knows that he or she offended but expresses that he or she did not, the Tribunal is reluctant to find that this has any significant bearing on an applicant’s risk of reoffending absent any expert psychological evidence to support that line of reasoning.
Additionally, there may be any given number of reasons why an applicant asserts their innocence notwithstanding that they have been found guilty of offences. It may be that an applicant cannot remember that they offended. It may be that an applicant has suppressed the memories of the offending. It may even be the case that the applicant did not in fact commit the offences notwithstanding that they have been found guilty of the offences. Although I acknowledge the logical possibility that this may be the case, that acknowledgement does not in any way detract from my acceptance that I must proceed on the basis that an applicant is guilty of the offences for which he or she has been convicted. My acknowledgement that there may be various reasons why an applicant asserts their innocence despite having been convicted of offences is for the purposes of illustrating that in some cases it may be of limited utility or propriety to rely on an assertion of innocence as determinative that an applicant is lying or that the maintenance of innocence heightens the risk that an applicant will reoffend.
While the Tribunal is reluctant to place any significant weight on the Applicant’s assertion that he is not guilty of the crimes for which he was convicted as having a bearing on the risk that the Applicant will reoffend, the Tribunal has taken into account that the Applicant has not undertaken any rehabilitation courses in relation to his offending. This is a matter that weighs against the Applicant in the determination of the risk that he will reoffend.
The Tribunal has taken into account the various letters which have been provided by the Applicant’s partner and his friends in support of his application. However, the Tribunal has placed limited weight on the statements to the extent they go to the Applicant’s character or risk of reoffending as most of them assume the Applicant is innocent of the offences for which he has been convicted.
The Tribunal has also taken into account that the Applicant is a member of the Queensland Branch of the RSL and has donated financially to the organisation and to the Cancer Council Queensland.
The Tribunal is aware that on 4 February 2019 the Applicant lodged an application for special leave to appeal to the High Court of Australia from the decision of the New South Wales Court of Criminal Appeal on 19 June 2017 dismissing his appeal from his conviction for sexual offences against a child. As the Applicant has failed to comply with rule 41.02.1 of the High Court Rules 2004 to lodge the application for special leave within 28 days of the decision of the New South Wales Court of Criminal Appeal on 19 June 2017, the Applicant would have been required to seek an order that compliance with that time limit be dispensed with: Rule 41.02.2(a) of the High Court Rules 2004.
The Applicant’s application for special leave to appeal to the High Court has yet to be determined. The Tribunal must proceed on the basis that the Applicant is guilty of the offences for which he has been convicted. The effect of section 500(6L) of the Act is that, unless the Tribunal makes a decision within the period of 84 days after the day on which the Applicant was notified of the decision under review, the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is taken to be affirmed.
The Tribunal notes that the 84 day period provided for by section 500(6L) of the Act gives the Tribunal very little time to come to a decision in what are often very challenging cases involving consideration of evolving law in the Tribunal and the Courts.
Having taken into account all the matters mentioned above, the Tribunal is willing to accept the only evidence from a psychologist which is before the Tribunal, being the assessment mentioned in the presentence report. That is, the Tribunal accepts the Applicant presents a low risk of reoffending. However, the Tribunal remains concerned that the Applicant has not undergone any rehabilitation programs in relation to his offending, it appears that up until recently: the Applicant has not had close contact or access to young girls; he is likely to have close contact with young girls in the future and in particular, to the four-year-old and six-year-old granddaughters of Witnesses A and B; and the Tribunal has found that the Applicant maintains the ability to offend, as he has in the past despite his age. Accordingly, the Tribunal finds that although there is a low-risk the Applicant will reoffend, it nonetheless represents a real risk. This is especially so given that the Tribunal has not had the benefit of reading the psychological report which was prepared for the presentence report and is unaware of the basis for the ultimate finding the Applicant presented as a low risk of reoffending.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offending conduct was very serious and the nature of the conduct involved the Applicant sexually abusing a young girl on four occasions while she was in a vulnerable position and had put her trust in the Applicant.
The Tribunal has found that if the Applicant were to reengage in similar criminal conduct it is likely the nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young girls. The effects of that kind of offending could include severe psychological injury and potential serious physical injury.
The Tribunal has found there is a “low” likelihood of the Applicant engaging in further criminal or other serious conduct, but the Tribunal has found that the risk the Applicant will reoffend is nonetheless a real risk.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. While the Tribunal considers that there is a “low” likelihood the Applicant will reoffend, the Tribunal does not consider this risk is insignificant. If the Applicant repeats his serious offending it will likely result in terrible harm to Australian children. In this case, considering: the seriousness of the conduct; the potential harm to Australian children were the Applicant to reoffend; and the ‘low’ risk of reoffending the Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes moderate weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
As her honour Perry J noted in FYBR v Minister for Home Affairs [2019] FCA 500, at [38] the primary consideration of the best interests of minor children “… may, and in general will, weigh against refusal of a visa in the final balance (as the Full Court explained in Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127 at [44]).” The Tribunal considers that, as a general proposition, this applies equally to decisions to refuse to revoke cancellation under section 501CA of the Act. That is, in most cases, the best interests of minor children primary consideration may, and in general will, weigh against non-revocation of a cancellation decision. This is because in most cases where a person has a visa application refused or a visa cancelled under section 501 of the Act, and the interests of minor children are relevant, it will be because the person who was refused a visa, or whose visa was cancelled, will have relationships with children, often their own, which may be disrupted by the refusal of the visa application or the cancellation of the person’s visa.
Indeed, the factors listed in paragraph 13.2(4) of the Direction appear to be primarily directed to situations where applicants have pre-existing relationships, including parental relationships, with children.
As discussed further below, paragraph 8(3) of the Direction provides:
“Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.”
In addition paragraph 13.2(1) of the Direction provides:
“Decision-makers must make a determination about whether revocation is, in the best interests of the child.”
While the Tribunal accepts that in most cases, the best interests of minor children primary consideration may, and in general will weigh against non-revocation of a cancellation decision and in most cases the adverse impact on children will arise from the refusal or cancellation of an applicant’s visa, the Tribunal considers that in a case like the present one, the best interests of any children who have been identified as potential victims of an Applicant must be taken into account.
In this case the Tribunal has identified that the two granddaughters of Witnesses A and B could potentially be the victims of future offending by the Applicant.
The only factor listed in paragraph 13.2(4) of the Direction which appears to be relevant in the present case is provided for in subparagraph 13.2(4)(c) which provides:
“The impact of the non-citizens prior conduct, and any likely future conduct, and whether that conduct has or will have a negative impact on the child;”
In the present case, while the Tribunal has found that the Applicant presents a low risk of reoffending, the Tribunal has found the risk is a real one. The Tribunal has heard evidence, which the Tribunal accepts, that if the Applicant were allowed to remain in Australia he will continue to have contact with the two young granddaughters of Witnesses A and B. They are approaching the age of the Applicant’s victim when the Applicant assaulted her between the ages of 6 and 10.
Conclusion: Primary Consideration B
The Tribunal considers that it is in the best interests of each of the granddaughters of Witnesses A and B that the Applicant not be allowed to continue to reside in Australia. This is because he presents a real risk to their well-being, however low, as they appear to be the most likely victims of any future offending by the Applicant.
The Tribunal finds that it is in the best interests of each of the children for the Tribunal not to revoke the cancellation of the Applicant’s visa.
The Tribunal finds that the best interests of the children weigh moderately against revocation of the cancellation of the Applicant’s visa.
The Tribunal attributes moderate weight to the primary consideration of the best interests of minor children in Australia.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction states:
“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.”
How are those expectations determined?
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348 (“Uelese”); Afu v Minister for Home Affairs [2018] FCA 1311 (“Afu”); and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation. The fact that Direction 79 is relevant to this case, rather than Direction 65, has no material bearing on this case. The differences between Directions 65 and 79 are primarily that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes.
In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.

Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.
Since my decision in Doan, the Federal Court on 11 April 2019, handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are FYBR v Minister for Home Affairs [2019] FCA 500 (“FYBR”) and DKXY v Minister for Home Affairs [2019] FCA 495 (“DKXY”).
The applicant in FYBR had argued that YNQY and Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (“Oluwafemi”) (in which Thawley J agreed with the narrow interpretation of Mortimer J’s reasoning in YNQY) were wrongly decided. The applicant argued that clause 11.3 requires the Tribunal to undertake “an assessment of community values made on behalf of [the Australian] community”, citing Bromich J’s decision in Afu. The applicant argued that the Tribunal should have undertaken an assessment of community values with consideration of the lengthy period of time the applicant had spent in immigration detention.
In Oluwafemi the applicant had argued that in determining the content of the expectations of the Australian community, the Tribunal was required to take into account the steps the applicant had taken to reform his behaviour and the fact that, as the applicant’s wife and child were members of the Australian community, the Tribunal was required to take into account their expectations.
In rejecting these arguments, his Honour Thawley J stated at [37] and [47]:
“… These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant’s circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant’s case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised.
…
Paragraph 11.3(1) of the Direction states, in effect, the Minister’s policy as to the expectation of the Australian community – see: YNQY at [76] per Mortimer J… It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant’s wife and minor child as parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interest of the applicant’s wife and minor child...”
In FYBR her Honour Perry J rejected the applicant’s argument that it was for the Tribunal to determine for itself the expectations of the Australian community by reference to the applicant’s circumstances or evidence about those expectations. Her Honour stated at the concluding paragraph of her reasons [42]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
The Tribunal considers that her Honour’s conclusion is consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese; Afu and YNQY that I summarised in Doan.
The Tribunal agrees that “at least in most cases” the “norm” stipulated in clause 11.3 of the Direction, and for the purposes of this case, clause 13.3, “will of its nature weigh in favour of refusal.”
However, in arriving at her conclusion in FYBR her Honour Perry J adopted what has been described by Griffiths J in DKXY as the “narrow” interpretation of Mortimer J’s reasoning in YNQY.
In arriving at her conclusion in FYBR her Honour Perry J made remarks which could be interpreted as suggesting that the primary considerations of the expectations of the Australian community and the protection of the Australian community were considerations presenting norms which would always favour visa refusal, cancellation, or non-revocation.
In arriving at her conclusion at [42], her Honour found that paragraph 8(3) of the Direction did not provide that each individual primary and other consideration may weigh for or against an applicant. Her Honour stated at [37] to [38]:
“On an ordinary and natural reading, the purpose of cl 8 is to specify the obligation to take into account the primary and other considerations relevant to the individual case and, importantly for present purposes, to specify the way in which those considerations are to be weighed as against each other. It says nothing about the content of the primary and other considerations in a particular case or more generally; nor does it say anything about whether by their nature the primary and other considerations favour refusal, cancellation or non-revocation.
Rather, the content of primary and other considerations is specified relevantly in cl 11 and cl 12 respectively of Part B of Direction 65 which applies to the discretion to refuse to grant a visa. Clause 11 provides that primary considerations not only include “Protection of the Australian community” from criminal or other serious conduct and “Expectations of the Australian Community”, but also the “Best interests of minor children in Australia” which plainly may, and in general will, weigh against refusal of a visa in the final balance (as the Full Court explained in Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 at [44]). Similarly, “other considerations” as specified in cl 12 include international non-refoulement obligations which, where relevant, will almost certainly weigh against refusal. “Other considerations” identified in cl 12 also include the impact on family members, impact on victims, and impact on Australian business interests. In contrast to non-refoulement obligations, the latter may, of their nature, weigh against or in favour of refusal depending on the individual’s circumstances. As such, some primary and other considerations by their nature tend to “tip the balance” in favour of or against refusal, while some considerations may tend to “tip the balance” in one direction only or the other depending upon the particular facts.”
To the extent that her Honour is suggesting that there will be some considerations in the Direction which will usually “tip the balance” in favour or against an applicant, the Tribunal respectfully agrees with this analysis. For example, in most cases where a person has had a visa cancelled because they have a “substantial criminal record” it will be very likely that the primary consideration of the protection of the Australian community will weigh in favour of visa cancellation, or non-revocation of the cancellation decision. Similarly, as mentioned above the primary consideration of the best interests of children will normally weigh against visa refusal, visa cancellation or non-revocation of the cancellation decision.
However, it is not inconceivable that the factual circumstances in a case may dictate that the way in which a consideration in the Direction will usually weigh, will not so weigh in that particular case. The present case provides a good example of this. As discussed above, while the primary consideration of the best interests of children will normally weigh against non-revocation of the cancellation decision, in this case, because there is an extant risk presented by the Applicant to two young girls, their interests weigh in favour of non-revocation of the cancellation decision.
While the Tribunal considers the interpretation of paragraph 8(3) of the Direction employed by her Honour in FYBR may be open on the wording of that paragraph, the Tribunal does not consider that this is the most natural interpretation of that provision. The Tribunal considers that the most natural interpretation of paragraph 8(3) of the Direction is that each of the primary and other considerations may individually weigh either for or against an applicant. If the Direction intended for the primary consideration of the expectations of the Australian community to always and inevitably weigh against an Applicant, the Direction could have stated so. As Perry J stated in FYBR at [37]:
“It says nothing about the content of the primary and other considerations in a particular case or more generally; nor does it say anything about whether by their nature the primary and other considerations favour refusal, cancellation or non-revocation.”
To the extent that the Tribunal’s interpretation of paragraph 8(3) of the Direction is inconsistent with that espoused by Perry J in FYBR, the Tribunal considers its interpretation is consistent with the interpretation of paragraph 8(3) espoused by Griffiths J in DKXY at [23] and [31] and respectfully considers his Honours interpretation to be correct.
If Perry J’s apparent interpretation of paragraph 8(3) of the Direction is used to support an interpretation that the Direction mandates that two of the three primary considerations will always and inevitably weigh against an applicant, and if that interpretation of the Direction is in fact correct, then questions may arise as to the consistency of the Direction with the “unfettered” discretion in section 501 of the Act: see also section 499(2).
In Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327, in finding that a previous Direction fettered the discretion in section 501 of the Act, the Full Court of the Federal Court (Ryan, Lander and Crennan JJ) stated at [127]:
“Moreover, the direction, read as a whole does not recognise that the decision- makers, to whom the direction is delivered, have an unfettered discretion subject to the policy of the Act which should be exercised having regard to all of the relevant circumstances. The weight which is to be given to any particular matter is a matter for the decision maker and cannot be subject to a ritualistic formula.”
Given that in FYBR Perry J, in the final paragraph of her reasoning ([42]) uses language which indicates the expectations of the Australian community will weigh against an applicant “at least in most cases”, the Tribunal concludes that her Honour considers that at least in some cases, the expectations of the Australian community may not weigh against an applicant. Thus, the concerns raised above in relation to potential fetter on the Discretion in section 501 of the Act may not arise.
In reaching her conclusion at [42] in FYBR with which the Tribunal respectfully agrees, Perry J appears to have only addressed the “norm” or Government views in relation to expectations of the Australian community which are contained in paragraph 11.3 of the Direction, rather than addressing any norms presented in paragraph 6.3 of the Direction. This is understandable given the applicant’s arguments were focused on paragraph 11.3 of the Direction and the way in which that paragraph had been dealt with by the Federal Court. For our purposes, paragraph 11.3 is relevantly identical to paragraph 13.3 of the Direction. However, her Honour did not say the Government’s views regarding expectations of the Australian community were restricted only to paragraph 11.3 or the similar paragraphs 9.3 and 13.3. It is clear the Government’s views regarding the expectations of the Australian community as regards its protection are also reflected in paragraphs 6.3(1) to (4) and particularly 6.3(2) of the Direction.
However, in Doan I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 13.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·      whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·      the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·      the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).
The Tribunal considers that there is nothing in FYBR which excludes these matters from the “norm” or the Government’s views regarding expectations of the Australian community.
As mentioned previously, the applicant in FYBR had argued that it was for the Tribunal to undertake an assessment of community values made on behalf of the community and that the time the applicant had spent in detention was a relevant consideration to the Tribunal’s assessment. The applicant relied upon paragraph 6.3(5) in furtherance of that argument. Perry J rejected these arguments, first by finding, consistently with the authorities mentioned previously, that the expectations of the Australian community were an assessment of community values made on behalf of the community by the Government and contained in the Direction. Secondly, her Honour found the Direction permitted decision-makers to take into consideration matters which are subjective to an applicant (such as in that case the time he had spent in detention), but only as an “other” consideration. Her Honour said that those subjective considerations (in that case the time the applicant had spent in detention) were not to be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of clause 11.3 of the Direction.
The Tribunal respectfully agrees with her Honour’s reasoning, that a matter such as the time an applicant has spent in detention may be taken into account as an other consideration, but cannot be taken into account in the Tribunal making its own assessment about community expectations for the purposes of clause 11.3 of the Direction. Indeed, there is nothing in the Direction, where the Government’s views about community expectations are located, to suggest that the expectations of the community are dependent on the time an applicant has spent in detention.
The Tribunal considers that none of this reasoning excludes the principles in paragraph 6.3 from consideration of the Government’s views regarding expectations of the Australian community.
On the day that FYBR was handed down, that is 11 April 2019, Griffiths J handed down his decision in DKXY.
In DKXY, after considering Mortimer J’s decision in YNQY, Griffith J stated at [30] and [31]:
“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 ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
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.”
The clauses referred to in [23] of DKXY are clauses 8(3), 6.1(3), 6.1(4), 6.3(3), 6.3(4) and 13.3(1) of the Direction. After discussing the paragraphs in Uelese cited by Mortimer J in YNQY, Griffiths J stated at [33]:
“There is nothing in the 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.”
It is apparent that the decision in DKXY adopts a much broader approach to the matters which may be considered in assessing the expectations of the Australian community. Griffiths J has found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
As the weight of Federal Court authority appears to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considers that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.
However, the Tribunal considers that its interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an applicant, is supported by the decision in DKXY. Similarly, I consider that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3, is also supported by the decision in DKXY. As Griffiths J stated at [31]:
“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.”
The Tribunal also considers that its approach to the expectations of the Australian community is broadly consistent with that taken by Member Burford in Toki and Minister for Home Affairs (Migration) [2019] AATA 742, in which the learned Member had also considered the recent decisions in FYBR and DKXY. The Tribunal agrees with Member Burford’s remarks at [164] where she stated:
“It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine whether “the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa” having particular regard to the direction and to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. ”

In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere.[5] In the present matter the Government has acted in accordance with that expectation as was required by section 501(3A) of the Act.
[5] See paragraph 6.3(2) of the Direction.
The Tribunal considers that the Australian community would find the Applicant’s conduct was very serious and that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.[6]
[6] See paragraph 6.3(3) of the Direction.
The Tribunal considers that the Australian community would consider that the Applicant’s crimes were particularly serious as they were perpetrated against a vulnerable girl of between six and 10 years of age and that the Applicant should forfeit the privilege of staying in Australia.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place weight, in the Applicant’s favour, on the negative consequences of non-revocation on the Applicant’s partner and that the Applicant has lived in Australia for most of his life. The Applicant arrived in 1965 and has remained here some 54 years. The Tribunal has considered that for most of that time, the Applicant has been making a positive contribution to the Australian community.
Conclusion: Primary Consideration C
Overall, given the very serious nature of the Applicant’s offending, that there is a real chance that he will reoffend, and notwithstanding the negative effects on the Applicant’s partner if the cancellation of his visa is not revoked and the lengthy time the Applicant has spent in Australia making a positive contribution to the community, the Tribunal finds that the Australian community would consider that the risk of future harm to the community is unacceptable and that the Tribunal should not revoke cancellation of the Applicant’s visa.
The Tribunal finds that this consideration weighs against revocation of the cancellation of the Applicant’s visa. The Tribunal places moderate weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under paragraph 14(1):
a)     International non-refoulement obligations;
b)     Strength, nature and duration of ties;
c)     Impact on Australian business interests;
d)     Impact on victims;
e)     Extent of impediments if removed.
(a)    International non-refoulement obligations
Neither party has raised any issue about non-refoulement regarding the Applicant, and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 1965 as a 26 year old. He has lived in Australia ever since. For most of that time the Applicant has been contributing positively to the Australian community. The Applicant’s offences were committed in the late 1980s to early 1990s, well after he had arrived in Australia in 1965. The Applicant did not begin offending soon after arriving in Australia.
The Applicant has an Australian citizen partner who he met in 1972 and they have been living together since 1981. The Tribunal finds that non-revocation in this case will have a substantial and ongoing negative affect on the Applicant’s immediate family in Australia, that is, his Australian partner. The Applicant’s partner has stated that the thought of losing the Applicant is devastating. The Applicant’s partner further states that the Applicant has enriched her life, cares for her and she cannot conceive of a future without him.
The Tribunal finds that the effect of non-revocation for the Applicant’s partner would be that she would be likely to be permanently separated from her partner, meaning she would be deprived of being able to live in Australia with the Applicant. The Applicant’s partner relied heavily upon the Applicant prior to his imprisonment. She has a number of significant medical conditions including epilepsy and fears that she may have a fit or a heart attack and the Applicant will not be present to secure medical attention for her. The Applicant’s partner would also be deprived of the financial assistance her partner could provide to her through his receipt of the age pension. Given the Applicant’s age and health conditions, it is doubtful that he would be in a position to obtain employment in the United Kingdom to support his partner in Australia, nor is it clear whether he would be entitled to receive an equivalent pension in the United Kingdom.
The Tribunal has also considered the effect of visa cancellation on the Applicant under this consideration. If it had not, the Tribunal would have considered the effect on the Applicant, other than as regards impediments upon return, separately as an “other” consideration. The Tribunal considers that the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. The Applicant would be permanently separated from his partner and friends in Australia. In all likelihood, the Applicant would never be able to return to Australia, where he has lived for most of his life, for a period of 54 years.
The Tribunal has taken into account statements of the Applicant’s friends and family members in Australia as being relevant to the Applicant’s ties to Australia.
Overall, the Tribunal finds that the Applicant has strong and enduring ties to Australia forged over a lifetime. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victim of the Applicant’s behaviour and her family members. Given the severe negative effects of the Applicant’s offending as recorded in the victim impact statement of the victim, the Respondent invited the Tribunal to draw the inference that the victim’s would welcome a decision not to revoke cancellation. While I see some force to that argument, the Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is a man of 80 years of age who suffers from the infirmity which comes with that age. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in the United Kingdom. As a citizen of the United Kingdom, the Applicant will be entitled to any social, medical and economic support available to United Kingdom citizens in the United Kingdom.
The Applicant gave evidence that he does not have any remaining relatives either in Australia or in the United Kingdom.
The Applicant retired in 1990. He gave evidence that he has expended all of his savings and superannuation on legal fees in relation to his trial and appeals relating to his offences. However, the Applicant and his partner own a property recently valued at approximately $500,000. Once the property is sold, which the Applicant and his partner have indicated will occur if he must leave Australia, he and his partner will be left with several hundred thousand dollars after paying off debts they owe.
The Tribunal finds that the Applicant will face difficulty in re-establishing himself in the United Kingdom. He has lived in Australia for some 54 years and has deep and lasting connections to this country. The Applicant’s age and frailty would heighten the difficulty for the Applicant in re-establishing himself in the United Kingdom after a lifetime lived in Australia. The Tribunal accepts that the Applicant would undoubtedly be very upset if he were permanently removed from Australia. The Tribunal has also considered that the Applicant will be without the assistance of his partner as she has decided to remain in Australia if the Applicant returns to the United Kingdom.
While the Tribunal accepts that it will be difficult for the Applicant to re-establish himself in the United Kingdom, the Tribunal considers that he will have sufficient funds available to assist him in re-establishing himself in the United Kingdom.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs moderately against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against revocation of visa cancellation. The Tribunal has found that the Applicant’s offences were very serious, that there would be great harm to Australian children if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke cancellation of the Applicant’s visa, notwithstanding the harm to his partner that non-revocation would cause and the great length of time that the Applicant has spent contributing positively to the Australian community.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of the two young granddaughters of Witnesses A and B, weighs moderately against revocation of the cancellation decision.
On the other hand, the Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. The Tribunal has found that the Applicant and his partner will be significantly adversely affected if the cancellation decision is not revoked. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community, the expectations of the Australian community and the best interests of children outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 224 (two hundred and twenty four) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

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

Date of hearing:

11 April 2019

Applicant:

In person

Solicitor for the Respondent:

Mr Matthew Hawker

Sparke Helmore Lawyers

ANNEXURE A - EXHIBIT REGISTER
File No       2019/0534..................................................................................................................
Between     TGXY......................................................................................................... (Applicant)
And          Minister of Home Affairs........................................................................... (Respondent)
Heard on    Thursday........................................ the 11th ......... day of April.................. 2019.........
At             Brisbane....................................................................................................................
Applicant’s Evidence

Exhibit Number Description of Evidence

A1 Applicant’s Statement of Issues, Facts and Contentions, dated 6 March 2019, witnessed 8 March 2019

A2 Statement of Witness B, dated 26 February 2019

A3 Statement of Witness A, dated 26 February 2019

A4 Statement of Applicant’s partner, dated 1 March 2019

A5 Statement of LW, dated 1 March 2019

A6 Statement of CJB, dated 1 March 2019

A7 Correspondence from Stidwell Solicitors, dated 25 February 2019

A8 Copy of decision in BM v R [2017] NSWCCA 133

A9 Applicant’s Statement in Reply, dated 29 March 2019

A10 Copy of New South Wales Police Force – Criminal History Bail Report, Criminal Infringement Notice History and Breach Bail Alternatives Report and List of Breach of Bail Charges
Respondent’s Evidence

Exhibit Number Description of Evidence

R1 NSW Police Criminal History and Offence facts sheet, report of 19 April 2019

R2 Copy of Victim Impact Statement dated 6 April 2016

R3 NSW Corrective Services Pre-Sentence Report, dated 7 April 2016

R4 Statement of MY, dated 20 June 2013

R5 Statement of AMY, dated 1 July 2013

R6 Statement of AY, dated 20 January 2015

R7 Statement of WY, dated 20 January 2015

R8 Indictment in New South Wales, dated 15 February 2016

R9 Court Attendance Notice, Moree Local Court, 11 May 2015

R10 Facts handed up as aide on Committal, Moree Local Court

R11 Summary of reasons for Bail Decision of Court and Bail acknowledgment, dated 19 January 2015

R12 Application to waive committal hearing, dated 11 May 2015

R13 Affidavit of Delay, High Court of Australia, filed 4 February 2019

Exhibit Number	Description of Evidence
A1	Applicant’s Statement of Issues, Facts and Contentions, dated 6 March 2019, witnessed 8 March 2019
A2	Statement of Witness B, dated 26 February 2019
A3	Statement of Witness A, dated 26 February 2019
A4	Statement of Applicant’s partner, dated 1 March 2019
A5	Statement of LW, dated 1 March 2019
A6	Statement of CJB, dated 1 March 2019
A7	Correspondence from Stidwell Solicitors, dated 25 February 2019
A8	Copy of decision in BM v R [2017] NSWCCA 133
A9	Applicant’s Statement in Reply, dated 29 March 2019
A10	Copy of New South Wales Police Force – Criminal History Bail Report, Criminal Infringement Notice History and Breach Bail Alternatives Report and List of Breach of Bail Charges

Exhibit Number	Description of Evidence
R1	NSW Police Criminal History and Offence facts sheet, report of 19 April 2019
R2	Copy of Victim Impact Statement dated 6 April 2016
R3	NSW Corrective Services Pre-Sentence Report, dated 7 April 2016
R4	Statement of MY, dated 20 June 2013
R5	Statement of AMY, dated 1 July 2013
R6	Statement of AY, dated 20 January 2015
R7	Statement of WY, dated 20 January 2015
R8	Indictment in New South Wales, dated 15 February 2016
R9	Court Attendance Notice, Moree Local Court, 11 May 2015
R10	Facts handed up as aide on Committal, Moree Local Court
R11	Summary of reasons for Bail Decision of Court and Bail acknowledgment, dated 19 January 2015
R12	Application to waive committal hearing, dated 11 May 2015
R13	Affidavit of Delay, High Court of Australia, filed 4 February 2019