TJZG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2994

TJZG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2994 (19 September 2023)
Division:                  GENERAL DIVISION
File Number(s):2023/4703
Re:TJZG
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 19 September 2023
Place:Sydney

The decision under review is set aside and remitted to the Respondent for reconsideration with the direction that the visa not be refused on character grounds under section 501 of the Migration Act 1958 (Cth).
..................................[SGD]......................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – refusal to grant visa – failure to pass the character test – impugning the conviction and sentence – whether to exercise discretion to refuse to grant the visa– Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – strength nature and duration of ties to Australia – expectations of the Australian community – impediments to removal – decision set aside and remitted to the Respondent for reconsideration with the direction that the visa not be refused on character grounds under section 501 of the Migration Act 1958 (Cth).
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 189, 197C, 198, 499, 501, 501CA
CASES
Ali v Minister for Home Affairs [2018] FCA 1895
Campbell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 228
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
HZCP v Minister for Immigration (2019) 273 FCR 121
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
MBJY v Minister for Immigration (2021) 284 FCR 152
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration v Ali (2000) 106 FCR 313
Minister for Immigration v Pochi (1980) 44 FLR 41
Nepata v Minister for Home Affairs [2019] FCA 1197
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration (2016) 243 FCR 220
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Kalina Brabeck, M. Brinton Lykes and Cristina Hunter, ‘The psychosocial impact of detention and deportation on U.S. Migrant children and families’ (2014) 84(5) American Journal of Orthopsychiatry 496, 500
REASONS FOR DECISION
Deputy President Antoinette Younes
19 September 2023
BACKGROUND

The Applicant is a national of Greece. He was born in June 1989 on the island of Kalymnos, Greece. On 7 December 2012, the Applicant was granted an Electronic Travel Authority (ETA). On 5 January 2013, he first entered Australia on the ETA to visit his brother.
On 14 September 2005, the Applicant was charged in the Multi-Member Court of Misdemeanours of Kos (the Juvenile Court), Greece, with seducing a minor under the age of ten, an offence “equivalent to a felony,” that occurred on 9 September 2005.[1] The details of the essential facts are set out below. On 8 October 2009, a Three Member Panel of the Juvenile Court of Kos convicted the Applicant of the above offence.[2] On the same day, the Applicant lodged an appeal to the Three Member Panel of the Appeals Court of the Dodecanese Island at Kos (the Appeals Court).
[1] G4, 30, Ex 13.
[2] G5, 31, Ex 13.
The Appeals Court conducted its hearing on 13 February 2013 and the Applicant was convicted in absentia. The Appeals Court sentenced the Applicant to 4 years imprisonment, with 3 years suspension, and it recorded that it was “satisfied that the defendant committed the offence” for which he was charged.[3]
[3] G7, 32-41, Ex 13.
On 14 March 2019, the Applicant lodged a combined application for a subclass 820/801 Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa (the Partner visa), sponsored by his wife, Ms P. On 27 June 2023, the delegate refused to grant the Applicant the Partner visa on the basis that the Applicant did not meet s 501(1) of the Migration Act 1958 (Cth) (the Act).[4] The delegate found that the Applicant does not pass the character test in s 501(1) of the Act by reason of s 501(6)(a), in that he has a ‘substantial criminal record,’ defined in s 501(7)(c) as including a sentence to a term of imprisonment of 12 months or more.
[4] G2, 8-27, Ex 13.
On 29 June 2023, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal).
LEGISLATION
Section 501(1) of the Act provides that the Minister may refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[5]
[5] s 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to refuse or cancel a non-citizen’s visa:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
Material before the Tribunal
The Tribunal has the following material before it:
·The Applicant’s Statements of Facts, Issues and Contentions (SOFIC) dated 1 August 2023;
·The Respondent’s SOFIC dated 21 August 2023;
·Report of Mr John Sutton, dated 19 July 2023;
·Report of Mr Tim Watson-Munro, dated 27 July 2023;
·Report of Dr Emily Kwok, dated 29 July 2023;
·Statutory Declaration from the Applicant, dated 30 July 2023;
·Statement from the Applicant’s wife, dated 30 July 2023;
·Statement from the Applicant’s mother, dated 31 July 2023;
·Copies of medical journal articles regarding denial and risk;
·Photographs of Applicant with his family;
·Statement from the Applicant, dated 1 September 2023;
·Applicant’s email regarding Mr John Sutton’s view on Applicant’s criminal conduct, dated 6 September 2023; and
·Respondent’s G-Documents.
All of these documents formed Exhibits 1-13.
FINDINGS AND REASONS
Does the Applicant meet the character test?
The Applicant’s position
Although the Applicant has accepted that he does not pass the character test in s 501(1) of the Act by reason of s 501(6)(a), in that he has a ‘substantial criminal record,’ defined in s 501(7)(c) as including a sentence to a term of imprisonment of 12 months or more,[6] he initially contended that there is insufficient and “rationally probative” material before the Tribunal for a finding that the Applicant sexually assaulted the minor in Greece in 2005.[7]
[6] Ex 1 [3].
[7] Ex 1 [15].
Although those submissions were withdrawn in the course of the hearing, the Tribunal considers it appropriate to address the Applicant’s contentions.
An immediate issue in this case is whether the Applicant is prohibited from ‘impugning’ the conviction and sentence of the Appeals Court. The Applicant contended that, in accordance with the principle referred to in HZCP v Minister for Immigration (HZCP),[8] the prohibition on an applicant impugning the conviction and sentence imposed by a criminal court is premised on that the conviction and sentence being the foundation of the power of the Respondent to refuse the visa.[9] The Applicant argued that in HZCP, the conviction and sentence of the appellant to two years and six months imprisonment on the charge of grievous bodily harm, as well as the applicant serving a sentence of imprisonment at that time, enlivened the mandatory cancellation power of the respondent under s 501(3A) of the Act, and consequently, the conviction and the sentence enlivened the power to cancel the visa. In contrast, in the present case, the conviction and sentence of more than 12 months’ imprisonment imposed by the Appeals Court did not enliven the power of the Minister to refuse the Applicant’s Partner visa, as that power remains a discretionary power to be exercised by the Respondent in accordance with the guidelines set out in Direction 99.[10]
[8] HZCP v Minister for Immigration (2019) 273 FCR 121.
[9] HZCP v Minister for Immigration (2019) 273 FCR 121, [63]-[68], [71], [77] (McKerracher J), [181]-[182] (Colvin J); Minister for Immigration v Ali (2000) 106 FCR 313 [42], [44] (Branson J).
[10] Ex 1 [6].
In the Applicant’s SOFIC,[11] the Applicant cited the following excerpt from the decision of the Full Federal Court in MBJY v Minister for Immigration:[12]
“...in the circumstances that were considered by the Court in HZCP, when the matter was before the Tribunal the person whose visa had been cancelled denied that he acted in the manner described by the sentencing judge in sentencing him: at [61]. It was in that context that it was held that the Tribunal was correct in concluding that evidence by which the person whose visa had been cancelled sought to impugn facts found by the sentencing judge could not be entertained: at [79] (McKerracher J), [195] (Colvin J). However, it is important to note that the reason it could not be entertained was because the question whether the relevant conviction and sentence had been imposed was found to be not part of the inquiry to be undertaken in the exercise of the power conferred by s 501CA(4)(b). Rather, the existence of the offending conduct for which the person had been convicted and sentenced was found to be the source of the power to cancel under s 501(3A) which in turn was a precondition to the exercise of the power under s 501CA(4)(b): at [71] (McKerracher J), [193] (Colvin J). It was the pursuit of a line of factual inquiry that would undermine the foundational basis upon which the power to revoke the cancellation arose that meant that it was a course that was beyond the jurisdiction of the Tribunal. The Tribunal could not call into question the existence of the very conduct that had to have occurred…”
[11] Ex 1 [7]-[8].
[12] MBJY v Minister for Immigration (2021) 284 FCR 152 at [72] (O'Callaghan and Colvin JJ; Allsop CJ agreeing at [1]).
The Applicant contended that in the present case, the binding principle in HZCP is not directly engaged.[13] The Applicant relied on the observations of Branson J in Minister for Immigration v Ali (Ali),[14] notably where her Honour stated:
“Third, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based... policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences...and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals....
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted… This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.”
[13] Ex 1 [8].
[14] Minister for Immigration v Ali (2000) 106 FCR 313 [43].
The Applicant accepted that he faces the “heavy onus” discussed by her Honour in Ali, he however argued that the “many irregularities” in the decision of the Appeals Court, as identified in the report of Mr John Sutton,[15] mean that the heavy onus is “considerably lightened” in this case. The Applicant relied on the observations of Colvin J in HZCP:
“...unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings.”[16]
[15] Ex 3.
[16] HZCP v Minister for Immigration (2019) 273 FCR 121 [191].
The Applicant contended that there are “graphic and compelling reasons why the conviction and sentencing of the applicant by the Greek Court should not be taken as proof of the underlying facts.”[17] The Applicant relied on the opinions expressed by Mr Sutton,[18] including the following:
·The circumstances surrounding the Applicant’s arrest, detention and interrogation, as a 16-year-old without the presence of an adult carer or support person, is prohibited in the law of New South Wales.[19]
·The Applicant’s evidence, in his Statutory Declaration, of bullying and intimidation by the police officer, ought to have ruled out the Applicant’s “admission.”[20]
·The absence of the Applicant at his trial before the Appeals Court.
·The highly prejudicial and inadmissible evidence given by each of the three witnesses at the appeal hearing.
·The victim’s evidence did not support the findings made by the Appeals Court, making no reference to the alleged sexual acts performed on him by the Applicant.
·The victim’s evidence was unsupported by the report of Dr Emmanouil Gavalas, who stated that there was no visible injury to the genital and anal area of the complainant.
[17] Ex 1 [10].
[18] Ex 3.
[19] Ex 3 [19].
[20] Ex 3 [35]-[38].

Relying on a number of judgments, the Applicant contended that the Tribunal is required to act rationally, reasonably, and to exercise caution when making factual findings which have serious consequences,[21] including a finding that a party has committed an offence of sexual assault on a minor with the consequence of potential removal of that person from Australia, leaving behind his wife and minor children.
[21] Minister for Immigration v Pochi (1980) 44 FLR 41; Sun v Minister for Immigration (2016) 243 FCR 220; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.
In essence, the Applicant contended that despite the finding of the Appeals Court, there is insufficient material before the Tribunal which is rationally probative to support a finding the Applicant sexually assaulted a minor in Greece in September 2005.
The Respondent’s submissions
The Respondent acknowledged that the “Applicant correctly concedes that the Applicant cannot pass the character test by reason of the conviction” but referred to the Applicant’s submissions above as being “obscure.”[22]
[22] Ex 2 [22.1].
The Respondent advanced the argument that there are issues with the Applicant’s seeking to distinguish HZCP on the basis that s 501(1) of the Act did not enliven the power of the Minister to refuse the Applicant a visa, and that the power remains a discretionary power to be exercised by the decision-maker.
The Respondent accepted that it is correct that HZCP involved s 501CA of the Act, and as such the revocation power which flowed from a mandatory cancellation under s 501(3A) of the Act. However, the Respondent contended that the principle remains that where the previous conviction is the basis for the exercise of jurisdiction, the essential factual basis of the conviction or sentence is not able to be reviewed. The Respondent contended that in the present case, the specific jurisdictional fact upon which the delegate found that the Applicant did not pass the ‘character test’ was the conviction itself. Additionally, for the purpose of the Tribunal’s review, the Respondent relied on the same jurisdictional basis which permitted the delegate to consider the exercise of the discretion in s 501(1) of the Act – namely ss 501(6)(a) and 501(7)(c) of the Act. The Applicant has not contended that he does not pass the character test on any other term. The Applicant expressly refers to those provisions as the legislative foothold for not passing the character test.
The Tribunal is satisfied that in determining whether the Applicant passes the character test, the Tribunal is considering the same question as the primary decision-maker. The Tribunal notes that there is a degree of agreement between the parties, and consistent with the majority in HZCP, the Tribunal is satisfied that where a previous conviction or sentence is the foundation for the exercise of a statutory power by a decision-maker, the essential factual findings underpinning that outcome cannot be impugned or questioned.
The Tribunal is of the view that there is merit to the Respondent’s submissions that the Applicant is wrong “in his reliance on Branson J’s decision in Ali (which concerned s 200 of the Act) in his attempt to challenge and explain the surrounding circumstances of the conviction, and indeed to call into question the core facts leading to the Appeals Court’s holding.”[23]
[23] Ex 2 [22.3.6] referring to Campbell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 228 [31] (Bromberg J).
The Tribunal is satisfied that the Applicant was seeking to impugn both the factual findings, as well as the conviction itself, contrary to the principles in HZCP. The fact that the conviction is the foundation to the exercise of the discretion, and as accepted by the Applicant during the hearing, it is not open for the Applicant, or the Tribunal, to go behind the essential facts leading to the conviction. The findings underpinning the conviction cannot be impugned or questioned.
In relation to the Applicant’s reference to the Direction as being “guidelines,” the Tribunal agrees with the Respondent’s submissions that this is incorrect. The Direction is binding on the Tribunal in that in performing its review functions, the Tribunal must give regard to the mandatory considerations outlined in the Direction, including the Primary and the Other considerations. Section 499 of the Act makes it clear that decision-makers must comply with a direction under that section.[24] The statement in the Direction at paragraph 5.1(4) to “guide decision-makers in performing functions or exercising powers under [s 501 of the Act],” does not contradict the principle that the Direction contains mandatory considerations.
[24] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[25] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[26]
[25] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
[26] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
The Direction does not determine rules of general application. However, it gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[27]
[27] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[28] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[29] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[30]
[28] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[29] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[30] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.[31] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather its application by a decision-maker to the evidence and material in an individual case.[32]
[31] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[32] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
On the basis of the Applicant’s conviction and sentence of a term of imprisonment of 12 months or more imposed by the Appeals Court, the Tribunal finds that the Applicant has a 'substantial criminal record' within the meaning of s 501(7)(c) of the Act, and that he does not pass the character test in s 501(1) of the Act.
ISSUE
The issue before the Tribunal is whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.
THE PRIMARY CONSIDERATIONS
1)Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that “entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.”[33] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[34] Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa or revoke a visa cancellation.[35]
[33] Direction 99 [8.1(1)].
[34] Direction 99 [8.1(2)].
[35] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The seriousness of the Applicant’s conduct
On 14 September 2005, the Applicant was charged in the Juvenile Court in Greece, with seducing a minor under the age of ten, an offence “equivalent to a felony,” that occurred on 9 September 2005.[36] The victim was seven years old. On 8 October 2009, a Three Member Panel of the Juvenile Court of Kos convicted the Applicant of the above offence. On the same day, the Applicant lodged an appeal to the Appeals Court.
[36] G4, 30, Ex 13.
Relevantly, the record of the application to appeal indicates that the Applicant “presented before the Registrar of the Court of Misdemeanours PAULINA XENIKA and requested that this report be drafted wherein he declares that he is exercising his right of appeal …”[37] The Tribunal is satisfied that this provides credible evidence that the Applicant was aware of the conviction as of 8 October 2009 when he lodged his appeal.
[37] G5, 31, Ex 13.
The Appeals Court conducted its hearing on 13 February 2013. The Appeals Court’s record shows that the “tipstaff by order of the Presiding Judge, called the defendant’s name and surname and he did not appear.”[38] The Applicant’s lawyer informed the Appeals Court that “he would be unable to attend Court today.”[39] The Appeals Court accepted the lawyer’s representation, and the matter was heard and determined. The Applicant was convicted in absentia. The Appeals Court sentenced the Applicant to 4 years imprisonment, with 3 years suspension, and it recorded that it was “satisfied that the defendant committed the offence” for which he was charged.[40]
[38] G7, 34, Ex 13.
[39] G7, 34, Ex 13.
[40] G7, 32-41, Ex 13.
The circumstances and facts of the Applicant’s offending are recorded in the Appeals Court’s decision record. The Applicant was 16 years of age at the time. He told the seven-year-old male victim to go with him to get his ball. He led him to a “deserted location” where “he undressed him, kissed him on the mouth and forced him to perform fellatio… inappropriately touched his behind and assaulted him with his genital organ in the same area, and ejaculated upon him, and kissed him on the mouth again.”[41] The Applicant has continued to declare his innocence, but as previously stated, it is not open for the Applicant, or for the Tribunal, to go behind the essential facts leading to the conviction. The findings underpinning the conviction cannot be impugned or questioned. The Tribunal is therefore satisfied that the facts are those recorded by the Appeals Court and that the Applicant did commit the offence of seducing a minor under the age of ten, an offence “equivalent to a felony,” which occurred on 9 September 2005.
[41] G7, 39, Ex 13.
The Tribunal observes that it was put to Mr Sutton by Counsel for the Applicant whether the offence is ‘shocking.’[42] Mr Sutton made a distinction between morality and the law, in that shocking implies a moral connotation but the question is more about the law. The Tribunal found that dichotomy of interest as it suggested exclusiveness in the notions of morality and legality. The Tribunal appreciates that morality is fundamentally subjective and as such could be contrary to consistency and fairness in decision-making. In any event, Mr Sutton accepted that whilst the Applicant’s conduct may not be shocking, it is nevertheless serious. The Applicant accepts the seriousness of the conduct, although he denies the facts as found by the Appeals Court.
[42] As described in Ex 2 [25.7].
The Tribunal views the nature of the Applicant’s offending to be objectively very serious, in that he engaged in inappropriate sexual conduct with a boy aged seven years. Just because there was no anal penetration,[43] that does not mean the offending conduct was not objectively serious. Despite the fact that the Applicant was a minor at the time of the offending, the Appeals Court imposed a custodial sentence. The Appeals Court did consider and take into account the Applicant’s adolescence as a mitigating factor but imposed a custodial sentence.[44] The seriousness of the Applicant’s offending is reflected in the Appeals Court’s custodial sentence. Mr Sutton gave evidence that the Applicant’s offending would have attracted a lengthy prison sentence in New South Wales.
[43] The Appeals Court did not find that there was evidence of anal penetration.
[44] G7, 38, Ex 13.
At paragraph 8.1.1(f), the Direction contemplates that the decision-maker may consider whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Appeals Court hearing took place when the Applicant was in Australia on a Visitor visa. He departed Australia on the same visa on 4 April 2013. He re-entered on 21 September 2013 on an ETA visa. The Applicant did not declare the conviction on the ETA application for the visa or on his incoming passenger card to Australia dated 21 September 2013.[45]
[45] G8, 42, Ex 13.
On 17 December 2013, the Applicant applied for an Independent ELICOS Sector (Class TU) visa. In answer to the question, “Have you or any person included in this application to apply for the visa ever… been convicted of a crime or an offence in any country (including any conviction which is now removed from official records),” the Applicant answered “No.”[46]
[46] G12, 91, Ex 13.
On 20 January 2015, the Applicant applied for an Independent ELICOS Sector (Class TU) visa. In answer to the question, “Have you or any person included in this application to apply for the visa ever… been convicted of a crime or an offence in any country (including any conviction which is now removed from official records),” the Applicant answered “No.”[47]
[47] G11, 84, Ex 13.
On 3 March 2016, the Applicant applied for a Student (Temporary) (Class TU), subclass 572 Vocational Education and Training Sector, visa. In answer to the question, “Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records),” the Applicant answered “No.”[48]
[48] G10, 76, Ex 13.
However, the Applicant did disclose the conviction in the Partner visa application lodged on 14 March 2019. In answer to the question, “Has any applicant ever been convicted of a of an offence in any country (including any conviction which is now removed from official records),” the Applicant answered:
“Yes… On 8 October 2009, I was convicted of the offence of seducing a minor under the age of 10 years on 8 September 2005 when I was 16 years of age. A 5 year custodial sentence was imposed. On 13 February 2013, the sentence was reduced to 4 years and suspended for 3 years on appeal.”[49]
[49] G9, 68, Ex 13.
In answer to the question, “Has any applicant ever been found guilty of a sexually based offence involving a child (including any conviction which is now removed from official records),” the Applicant answered:
“Yes… On 8 October 2009, I was convicted of the offence of seducing a minor under the age of 10 years on 8 September 2005 when I was 16 years of age. A 5 year custodial sentence was imposed. On 13 February 2013, the sentence was reduced to 4 years and suspended for 3 years on appeal.”[50]
[50] G9, 68, Ex 13.
In the course of the hearing, Counsel for the Respondent asked the Applicant about his Statutory Declaration dated 30 July 2023, in which he stated that under Greek law, “I had no convictions recorded pending a full retrial on appeal at a more senior court.”[51] The Applicant confirmed that was his understanding, although he did not articulate how he had come to that understanding. The Applicant confirmed his statements in the Statutory Declaration that his lawyer in Greece, Paraskevi, did not contact him in Australia to inform him of the Appeals Court’s decision and that he was not aware of the outcome until February 2013. At that time, his mother contacted him by telephone and told him that it was all over. She told him that he did not need to go to prison.
[51] Ex 6 [5].
The Tribunal observes that in her Statutory Declaration dated 31 August 2023, Ms K, the Applicant’s mother, states that the Applicant’s solicitor called her after the Appeals Court decision and told her that “It is all okay. [The Applicant] does not need to go to jail…[she does] not need to worry as this issue is now done.” The Applicant’s mother states that “[she] thought from [her] call with [the Applicant’s solicitor] that [the Applicant] was cleared of the charge on appeal and the ordeal was all behind [them].”[52]
[52] Ex 8 [28].
The Applicant provided a report from Mr Dionysios Pantazis, partner in Pantazis & Associates in Athens, Greece, dated 29 September 2021.[53] Among other matters, Mr Pantazis commented on criminal record entry in Greece. Mr Pantazis referred to article 574 of the Hellenic Code of Criminal Procedure (HCCP) and concluded that:
“…in the present case, the entry being made for the first time in 20/3/2013 means that it was only at that time that the judgment became irrevocable and was therefore registrable in the criminal record of [the Applicant]. Put differently, until the point in time that the appellate judgment could no longer be appealed (due to the lapse of the deadline for filing an appeal in cassation), there was no irrevocable judgment against [the Applicant].”[54]
[53] G42, 318-334, Ex 13.
[54] G42, 334, Ex 13.
Counsel for the Applicant argued, and the Tribunal agrees, that ‘registrable’ does not mean that the conviction was in fact registered on the Applicant’s criminal records. On the evidence, the Tribunal is satisfied that it was not until March 2013 that the conviction would have been registrable, but that does not mean it was registered.
The Applicant has claimed that the ETA application lodged in September 2013 was completed by his brother’s former partner and that the Student visas lodged in 2013 and 2015 were lodged by his former migration agent, who did not ask him about any prior convictions. He claimed that it was not until he applied for a Greek police clearance in 2016 when applying for the Student visa that he became aware of the conviction. He conceded that he decided on this occasion not to disclose the conviction because he was dating his now wife and he was afraid of losing her. He knew it was wrong but did not disclose the conviction in the application out of fear of losing her. He apologised at the end of the hearing for having provided incorrect information, in relation to the third Student visa application.

Counsel for the Applicant relied on the decision of Sullivan v Civil Aviation Safety Authority as authority for the proposition that there is a need to exercise caution when making findings of fact which have grave consequences:[55]
“Some findings of fact, however, have been long-recognised as calling for considerable caution before being made and for care being exercised in respect to the evidence upon which the finding is made. Findings as to a party or a witness having engaged in fraud or having lied are but examples.”[56]
[55] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.
[56] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 [111].
Although the Tribunal has some doubts, and as acknowledged by Counsel for the Respondent in closing submissions, there is insufficient evidence to conclude that the Applicant had deliberately and intentionally provided incorrect information in the 2013 and 2015 Student visa applications, but he clearly did in the 2016 application. The Tribunal finds on the evidence that the Applicant did provide incorrect information in the 2016 Student visa application when he answered “No” to the question “Has any applicant ever been convicted of a of an offence in any country (including any conviction which is now removed from official records)?”[57]
[57] G10, 76, Ex 13.
The Tribunal has considered the Applicant’s apology and explanations but is not persuaded. The Applicant’s deliberate lack of disclosure about the conviction is serious and if disclosed, would have likely led to a refusal of that visa. If the Applicant’s lack of disclosure was discovered after granting the visa, it would likely have led to a subsequent cancellation with significant consequences, including detention and potential removal from Australia.
For those reasons, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily in favour of refusal.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[58] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[59] The Tribunal needs to consider the likelihood and consequences of further offending.[60]
[58] Direction 99 [8.1.2(1)].
[59] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[60] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
Dr Emily Kwok, Clinical and Forensic Psychologist, provided a report dated 29 July 2023,[61] in which she stated the following:[62]
“To date, there is a lack of research to support the assumption that failure to acknowledge guilt for a sexual offence is related to recidivism. Using a combination of actuarial scale (e.g. that measures variables such as prior sex offences, age of offending, ever having an extrafamilial victim) and prison records, there may be some suggestion that denial is associated with increased sexual recidivism for incest offenders but not for offenders with unrelated victims.
In brief, the denial of sexual offending has more relevance to determining an individual’s engagement in treatment than to the individual’s risk of re-offending. Targeting denial in treatment is not associated with improved treatment outcomes.
…
[The Applicant’s] failure to acknowledge his guilt does not add to the likelihood that he will reoffend in the future, especially as he is not related to the alleged victim and he has no other history of sex offences against either related and unrelated victims.
…
On the assumption that [the Applicant] has committed the sex offence, categorical denial (i.e. complete denial) may be used as a strategy to reduce negative consequences such as a sense of shame or the fear of losing family support. Other factors that contribute to categorical denial may be the offender’s fear of losing other social bonds, motivation to hide any sexual deviancy, strategy to reduce responsibility for harm caused to the victim, resistance to being labelled a sex offender, or fear of being victimized (e.g. by the victim’s family or other prisoners). Offenders with severe cognitive impairment may also have issues with memory that lead to partial (or complete) denial.
For [the Applicant], there is no indication that he is sexually deviant or has a sexual interest in children. There is also no indication that he has a cognitive impairment that affects his ability to recall or accept responsibility for offending.
I note that [the Applicant] had admitted to previously not disclosing his convictions in his visa application, because he feared losing his relationship with [Ms P]. If he did commit the sexual offence in Greece, his denial of offending may be motivated by a fear of losing family support or losing relationships. As his family was living in poverty and hardship at the time, [the Applicant] may also feel obligated to remain in the community to help his mother.”[63]
[61] Ex 5.
[62] Dr Kwok cited all research papers upon she relied.
[63] Ex 5, [86]-[94].
Mr Watson-Munro, Consultant Psychologist, provide a report dated 27 July 2023 in which he provided an extensive background of the matter and conclusions.[64] In relation to the request to provide an opinion as to what extent a failure to acknowledge guilt for an offence is a measurable factor in assessing whether an offender is likely to reoffend and how it is measured, Mr Watson-Munro advised the following:
“[The Applicant] has no prior or subsequent forensic history. It would appear that beyond this matter which occurred during his mid adolescence, he has led an essentially pro-social crime free life. This is reflected in his employment history, him undertaking national service with the Greek army and his ongoing love and support of his wife and two children. Independent discussions with his partner confirm his dedication to his family and his pro-social outlook. Other examples of this have been described in the body of my report. In other words, beyond the index offence, there is no indication of sexual aberrance in this case, no suggestion of paraphilic tendencies and no evidence of propensity towards criminal activity. An offender’s denial of offending, particularly in relation to sexual matters is not uncommon. There are many factors which can relate to this.
I note that in [the Applicant’s] case, that he reportedly confessed to the offending, against a backdrop of his young age, his immaturity and by his account, feeling rightened and overborne in the first instance by the male policeman at Kalymnos. He then endeavoured to retract his confession, which ultimately, as the record reflects, was to no avail. It is clear that he is not a habitual sexual offender and in this regard, I note that he is now 34 years of age. Some 18 years has lapsed since his offending conduct. Arising from this, in conjunction with no history of substance use nor indeed any indication of other types of criminal activity, believe in this case, that [the Applicant’s] failure to acknowledge his guilt is a measurable factor in assessing whether he is likely to reoffend. Generally speaking, individuals who commit this type of offence by his current age, have acquired numerous convictions for matters of a similar nature and have been before the Courts on multiple occasions. This is clearly not the case in relation to [the Applicant]. In this context, it is arguable that his failure to acknowledge his guilt does not add to the likelihood that he will reoffend in the future. I say this advisedly, on the basis of an absence of a prior criminal history and other factors which I have described, including his pro-social attitude, his employment, his dedication to his family and the support which he enjoys from his partner and children.
I note you seek my opinion, based on an assumption that [the Applicant] committed this offence in Greece as to the current risk of reoffending now and in the future referable to his age when the offence occurred in Greece. I have essentially addressed this earlier in my opinion. [The Applicant] was in his mid-adolescence at the time of the offence occurring. There is no prior history of sexual offending nor indeed any indication of anti-social or criminal conduct up until that point. There has been no subsequent offending and as noted, at one point, he was conscripted into the Greek army as part of their national service program. This would hence suggest at that time that he was not considered to be a risk in terms of criminal conduct. [The Applicant] is now 34 years of age and has led a blameless life since that time. He reported that he genuinely believed that the matter had been appealed successfully in his favour and as the documents reflect, described significant relief when his mother contacted him with news to this effect. I also note that he has been entirely open with his wife in relation to this incident, with him advising her very early on in their relationship as to his exposure to the criminal justice system in Greece. She has remained supportive of him, with this support being reinforced with the effluxion of time, in the context of her assessment of his character, as a consequence of his capacity as a father, husband and contributing member of the community.
Taking all factors into account, inclusive of ongoing protective issues, such as an absence of substance use, an absence of any major psychiatric or psychological disturbance, his employment history, the significant support he enjoys from his wife, children and extended family, in addition to his assimilation into the Australian community, I believe notwithstanding his refusal to acknowledge his guilt, that the likelihood of him reoffending is low. I say this advisedly, both in terms of the risk of sexual offending and at a more generic level, criminal activity in general.”[65]
[64] Ex 4.
[65] Ex 4, [2-5].
Mr Watson-Munro gave evidence that adult brain is not fully developed until mid-twenties and that at the age of 16, there is “poor impulse control.” Mr Watson-Munro stated that one cannot have ‘zero’ risk, particularly in the case of a person who has previously offended, but confirmed his assessment of a low risk of re-offending.
In assessing risk, the Tribunal is guarded and cautious. The Tribunal is of the view that one cannot predict the future with complete certainty as there are multiple factors which could impact on one’s future conduct, and as such it is not possible to find that there is no risk. However, on the evidence, the Tribunal is satisfied that the Applicant does not exhibit characteristics which suggest a likelihood of committing further sexual offences. Mr Watson-Munro administered a Sexual Violence Risk-20 instrument, designed for assessing risk of sexual violence, on the Applicant and found that his test results were “unremarkable.”[66] Mr Watson-Munro also discussed the “protective factors” favouring the Applicant, including “an absence of substance use, an absence of any major psychiatric or psychological disturbance, his employment history, the significant support he enjoys from his wife, children and extended family, in addition to his assimilation into the Australian community.”[67]
[66] Ex 4,
[67] Ex 4 [5].
Dr Kwok noted that with regard to offenders with a history of sexual crime, after ten to fifteen years, most individuals are no more likely to commit a new sexual offence than individuals with a criminal history that does not include sexual offences.[68] Dr Kwok considered that the Applicant’s risk of offending is “comparable to a person without an offending history.”[69] Neither Mr Watson-Munro nor Dr Kwok considered the Applicant’s denial of offending as a significant risk factor. The Tribunal is satisfied that both experts assessed the Applicant to be at a “low” risk of reoffending.
[68] G23, [99], Ex 13.
[69] G23, [101], Ex 13.
The Respondent in closing submissions accepted that the risk of reoffending is low, however argued that given the seriousness of any reoffending, some weight needs to be given in favour of refusal.
On the material before it, the Tribunal is satisfied that the Applicant is at a low risk of reoffending. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable, and as such weight is given to this aspect in favour of refusal.
In light of the seriousness of the offending and the unacceptability of any reoffending, albeit low in this case, the protection of the Australian community consideration weighs strongly in favour of refusal.
2)Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[70]
[70] Direction 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[71]
[71] Direction 99 [8.2(3)].
There is no evidence of family violence in this case.
The Tribunal gives this consideration neutral weight.
3)The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[72]
[72] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and, in doing so, have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has been in Australia since 2013. He is now 34 years old. Since arriving in Australia, he has studied, worked, and on 9 December 2017, he married an Australian citizen and they have remained a couple. The couple has two minor children, a boy aged four years and a daughter aged three years.
The Applicant’s immediate family members in Australia include the two minor children, his wife, her parents, her siblings, her nieces and her uncles and aunts.
Ms P, the Applicant’s wife, provided a Statutory Declaration dated 30 July 2023,[73] where she described her close relationship with the Applicant. She stated the following:
“[The Applicant] has been the partner that I have always wished for, from the beginning of our relationship he has always been supportive, caring, generous and loving and is not only my husband and best friend but also my soul mate…
Since becoming a father, in addition to the above qualities, [the Applicant] has also become a model father which is important for a flourishing family. We are a happy little family that enjoys spending time together, learning and growing as a family.”[74]
[73] Ex 7.
[74] Ex 7 [11]-[12].
She described shared tasks within the marriage and confirmed that since late 2018, just prior to the birth of their oldest child, the Applicant was the main breadwinner for the family. She gave examples of this, noting that she returned to work part-time, four days a week, shortly before COVID-19 restrictions were put in place. She noted that as a consequence of these restrictions, the Applicant was unable to work and he became the main carer for the children, whilst she worked from home. She described the Applicant’s involvement in her life and the family, noting that the Applicant is a strong support person, who assists in coping with day-to-day pressures. She confirmed that she has suffered Alopecia, and this is supported by a report from Dr Abouzeid, dated 27 September 2019.[75] She stated that the Applicant assists her in this regard and supports her at an emotional level, stating that her physical appearance is non-consequential to his feelings for her. She expressed gratitude for his ongoing support, noting that “in short, [the Applicant] has always been there for [her] since the day [they] met. [She] cannot describe or correctly express how fortunate, blessed, thankful and grateful [they] are to have such an amazing man in [their] lives.”[76]
[75] G28, 204-206, Ex 13.
[76] Ex 7 [20].
Ms P described the Applicant’s involvement with the family, including shared activities with the children. She gave evidence about the strength of their relationship, as well as the Applicant’s active involvement with the children.
There are numerous photographs of the Applicant with his family, actively involved with his children.
The Applicant’s children, in-laws, and sister-in-law attended the hearing in support of the Applicant. The Tribunal formed the view that this is a close family.

In her report, Dr Kwok described the Applicant’s relationship with his wife as “loving and harmonious.”[77] Dr Kwok referred to Ms P’s emotional distress in relation to her Alopecia and the visa refusal and indicated that Ms P meets the criteria for Adjustment Disorder with anxiety, as defined by the Diagnostic and Statistical Manual of Mental Disorders. Dr Kwok noted that Ms P considered that the principal stressful life event for her is the visa refusal, which has had the greatest impact on her psychological wellbeing.[78] Dr Kwok observed that, if the Applicant were permitted to stay in Australia, it is likely that Ms P’s psychological symptoms would steadily reduce over a six month period, but if removed from Australia, her stressors would continue and her adjustment disorder would persist. Dr Kwok noted that the Applicant’s removal would increase the intensity of Ms P’s daily parenting stress and the financial hardship of the household, given the loss of financial and personal support, including in relation to the Ms P’s Alopecia. Dr Kwok noted that Ms P’s symptoms of anxiety would worsen and could develop into an Anxiety Disorder with co-morbid depression. The Tribunal observes that, in oral evidence, Dr Kwok accepted that she did not take into consideration the difference in the cost of living between Sydney and Greece. However, on balance, the Tribunal does not consider that lack of consideration to be undermining of her opinions in a significant manner,
[77] Ex 5 [28].
[78] Ex 5 [66]-[71].
The Applicant’s close ties with his parents-in-law is illustrated in his Statutory Declaration[79] as well as Ms P’s Statutory Declaration, where she refers to the “bond between [the Applicant] and [her] family has been very strong since the very beginning of [her] relationship” in 2015.[80]
[79] Ex 6 [102]-[104].
[80] Ex 7 [78].
The Respondent accepts that this consideration weighs against refusal.[81]
[81] Ex 2 [27].
On the evidence, the Tribunal is satisfied that the strength, nature and duration of the Applicant’s ties to Australia weigh heavily against refusal.
4)The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[82]
[82] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
93.The Applicant has two minor children under the age of five years. Ms P has two nieces aged 16 years and 13 years.
The evidence before the Tribunal indicates that the Applicant is very much part of the lives of his children. In his Statutory Declaration, he refers to the relationship he has with his children as being “close and tight-knit.” He states that “[he] can see the love and admiration they have for [him] also in [their] interactions. [His] children have and always will be [his] whole world.”[83] Ms P in her Statutory Declaration refers to the Applicant being an active and hands-on father. She states that “the love and bond [her] two children share with their father has only grown over the years.”[84]
[83] Ex 6 [95].
[84] Ex 7 [75].
In her report dated 29 July 2023, Dr Kwok expressed an opinion on the likely impact upon Ms P’s capacity to mother her children if the Applicant is deported from Australia. She stated:
“As indicated above, the relationship between maternal psychopathology and the development of child psychopathology is well established in the literature. At present, [Ms P] has already noted changes in her parenting behaviours, because she has become less patient and more emotionally unstable around her children. Her stress may also affect her attentiveness to her children’s needs. Although [Ms P’s] parents and sister live nearby and can provide some support, [Ms P] appears hesitant to become reliant on them.”[85]
[85] Ex 5 [78].
In relation to potential challenges that the parents and the children would face if they were forced to return to Greece with the Applicant, Dr Kwok stated that the family’s economic situation will likely worsen with the move as the Applicant would be unemployed for an indefinite period of time.[86] However, in oral evidence, Dr Kwok accepted that she did not take into consideration the difference in the cost of living between Sydney and Greece.
[86] Ex 5 [80].
Dr Kwok in her report noted that Ms P does not have work experience in Greece, making it more difficult for her to gain employment. She also noted that as Ms P does not have the support of her extended family in Greece and the Applicant’s mother suffers from a health condition, she would likely have to stay home to care for the children. Dr Kwok concluded that the children would be impacted by their parents’ higher economic stress and possible psychological distress.[87] She stated the following in relation to the Applicant’s child:
“[The Applicant’s son] will need to adjust to an unfamiliar environment and a new school. The combination of cultural and language barriers will add to the children’s challenges to make friends. A relocation to Greece will also separate the children from the support they receive from extended family in Australia. The protective factor, in this situation, is that the strong marital and parent-child relationships may buffer some of these adverse impacts. However, due to [Ms P] and [the Applicant’s] own stress, their parental involvement may decline.”[88]
[87] Ex 5 [81].
[88] Ex 5 [81].
In relation to the specific question about the best interests of the two children, Dr Kwok stated:
“Based on the potential detrimental impacts on [the Applicant’s children] as discussed above, it is my opinion that it is in their best interests for [the Applicant] to remain in Australia. I make this opinion based on the likelihood that the family will relocate to Greece if [the Applicant] is forced to leave. The relocation will separate the children from the network of family support they have in Australia. It will also place the family in a dire financial situation which may prevent the children from engaging in many of the social activities which they currently do in Australia and, subsequently, disconnect them from the social support which they can gain from these activities.”[89]
[89] Ex 5 [83].
In his SOFIC, the Applicant referred to the effect of removal of parents from their children in deportation cases, citing a 2014 paper, The psychosocial impact of detention and deportation on U.S. Migrant children and families,[90] as follows:
“The detrimental effects of forced and unexpected parent-child separation, even when children are well cared for in a safe environment, have long been documented in the psychological and psychiatric literature…Unlike separations involved in voluntary migration decisions, which may include economic benefits but social emotional costs, forced separations owing to deportation incurred the social emotional cost without the economic benefit (in fact, economic situations typically deteriorate further following deportation…Deportations involve a double or triple trauma for children, who may witness the forcible removal of the parent, as they suddenly lose their caregiver and/or abruptly lose their familiar home environment…From the attachment theory perspective…, a child's sense of security is rooted in relationships with familiar caregivers; this secure base is a necessary foundation for developing social, cognitive, and emotional regulation skills that are fundamental throughout life. The physical separation between a parent and child, particularly when unexpected as in the case of deportation, disrupts this essential secure base, risking internalizing symptoms (depression, anxiety), externalizing behaviors (withdrawal, aggression), and social and cognitive difficulties…All learning—whether learning the alphabet, learning to wait one's turn, or learning to tolerate frustration—happens in the context of important relationships, of which the primary caretaker-child relationship is paramount. When these relationships are disrupted, the learning processes and the establishment of the important neuronal pathways also are disrupted.”
[90] Kalina Brabeck, M. Brinton Lykes and Cristina Hunter, ‘The psychosocial impact of detention and deportation on U.S. Migrant children and families’ (2014) 84(5) American Journal of Orthopsychiatry 496, 500.
Dr Kwok also referred to the potential cumulative risk of various other negative psychosocial outcomes in case of the Applicant’s removal.[91]
[91] Ex 5 [75].
Dr Kwok gave evidence in the course of the hearing confirming pertinent aspects of her report. The Tribunal considers Dr Kwok to be a highly skilled professional and the Tribunal gives her opinions significant weight.
The Tribunal is satisfied, and as contended by the Applicant, that there are also practical implications for the children if the Applicant is deported and his wife and children leave to Greece as a family. These practical implications include that they may have to cease their hobby activities and other social connections, which are particularly important for children at that age. They would also lose the close support of their grandparents in Australia.
The Applicant also has a very close and loving relationship with Ms P’s nieces, which is described in Ms P’s Statutory Declaration.[92] She states that he plays a significant role in supporting and helping through challenging times, including at the time of their parents’ divorce, moving houses, and changing schools. The Tribunal acknowledges and agrees with Counsel for the Respondent’s submissions that the effect on the nieces and nephews should be given less weight because of the non-parental relationship and less involvement compared to the Applicant’s children. The Tribunal has given this aspect less weight.
[92] Ex 7 [39].
The Tribunal is satisfied on the evidence that it is in the best interests of the Applicant’s minor children for the visa not to be refused.
The Tribunal gives this consideration significant weight against refusal.
5)Expectations of the Australian community
The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to visa refusal being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[93] In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of a kind that includes acts of family violence.[94]
[93] Direction 99 [8.5(2)].
[94] Direction 99 [8.5(2)(a)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[95]
[95] Direction 99 [8.5(3)].
The Tribunal views this primary consideration to be about the expectations of the Australian community as a whole, and in this respect, the Tribunal should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case. This consideration appears to be consistent with the Full Federal Court authority in FYBR.[96]
[96] FYBR v Minister for Home Affairs [2019] FCAFC 185. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
This consideration is not dealing with an objective or ascertainable expectations of the Australian community; rather, it is a kind of deeming provision by the Minister about how the Government wishes to articulate community expectations, whether or not there is any objective basis for that belief.[97] It imputes or ascribes to the whole of the Australian community an expectation, which wholly aligns with the expectation of the executive government of the day regarding its subject matter.[98]
[97] Uelese v Minister of Immigration and Border Protection [2016] FCA 348 [64]-[66].
[98] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Tribunal is satisfied that the enquiry for this consideration does not concern what the Australian community expects in fact, assuming such expectations could be objectively ascertained, but rather concerns what the Australian Government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant provision itself.[99]
[99] FYBR v Minister for Home Affairs [2019] FCAFC 185 [68]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Applicant’s criminal conduct is serious. The Tribunal is satisfied that the Australian community expects that the Australian Government should refuse the Applicant the Partner visa because his conduct is serious.
The Tribunal gives this consideration significant weight in favour of refusal.
THE OTHER CONSIDERATIONS
a)Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Non-refoulement obligations is not confined to the protection obligations to which s 36(2) of the Act refers.[100] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[100] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
There is no claim or evidence of non-refoulement obligations.
The Tribunal gives this consideration neutral weight.
b)Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant contends that this consideration weighs heavily against refusal.
The Applicant is a national of Greece, and there is no language barrier. The Respondent contended in closing submissions that the Applicant has some skills and work experience in Greece and there is no reason why he could not employ those skills in Greece if he were to return. Moreover, the Respondent contended in closing submissions that Dr Kwok did not take into account the economic situation between Australia and Greece and had made assumptions about the Applicant and his and Ms P’s employment. There is merit in those submissions. However, if the Applicant were to return to Greece alone, the Tribunal is satisfied that there would be difficulties with resettling into the Greek community in circumstances where the Applicant has spent many years building his life in Australia. He would have to find employment, accommodation, and social network support. Although the Tribunal does not consider those difficulties to be insurmountable, they are nevertheless challenges with a reasonable degree of significance. The Applicant has worked, studied, and has a family with two minor children in Australia. His main emotional and psychological support, namely his wife and children, is in Australia. Given the conviction and the provision of incorrect information, he would have difficulties in being granted another Australian visa to see his family.
The Tribunal appreciates that this consideration is more relevant to potential impediments on the Applicant. However, the Tribunal is of the view that impact on the family is directly related to the impact on the Applicant, particularly to his psychological wellbeing and mental health.
Although Ms P has not excluded the possibility of going to Greece with the Applicant and the children, there are significant challenges. In oral evidence, Ms P stated:
“I am very tied to my country [Australia] of birth. My parents are citizens and have lived here for over 40 years. And they moved here for a better life. And so it’s definitely not something that I would want to be in a position to have to consider based on any decision after this appeal. It could be likely that I am in an impossible position to have to choose between my family, my country, my home and removing ourselves. To keep my family together, but I know that that’s not in the best interests, not for myself and not for my children. My family support network is here. It absolutely scares me to live in Greece, another country, especially in Greece after in particular, the medical system and having lived through his sister’s experience[101] who recently passed away not so long ago. The treatment from the medical system there for a terminally ill patient was mortifying. Post that, my husband’s young niece who has a child who was ill due to being in primary school. Over the last year and a half, there have been multiple times where we’ve spoken to my mother-in-law, and she’s advised us that they can’t even get access to basic antibiotics. And as a mother to young children, my children have spent the majority of last year sick from day care and from prep-school, and it’s the same this winter. So from a medical perspective, that’s my biggest fear. Education, there’s a lack of the opportunities that we have in this country. Another thing would be language barrier. So I can have a basic conversation in Greek, but if we were to move there, we’ve got nowhere to live which would mean we’d both have to work full-time, and that might prove to be difficult with limited reading and writing skills. My biggest thing as well is the family support network, my parents and my siblings have always supported us as individuals and as a young family.
…
Financially, emotionally, with advice and guidance. Our relationship with them is essentially – there’s daily contact, if it’s not in person, it’s multiple times over the phone. We don’t have that there. My mother-in-law, she’s a wonderful woman, but she’s a single mother herself who is now the carer of her two young grandchildren, and struggles to make ends meet on her own. So from a financial perspective, or just to provide support, if we were to all go over there, there’s nowhere for us to go, no-one can open their home to us to support us or offer that support. It wouldn’t be easy for me or my children.
…
And that would be the same, like, I know that this did come up that, you know, there’s a possibility of, ‘Well, if not in Greece, somewhere else in Europe’ based on the fact that my husband has a Greek passport, but again, we’d be faced with the same problems. To go where? To live where? With what support? What entitlements would I have, and my children have? It’s, I don’t know, there’s just a lot of uncertainty around all of this, if it were to come to that. And with every bit of me, I would – my instant reaction would be to not leave my country, not leave my home where I’ve lived, where my family support network is, where I know we have built our family and we are thriving, or were up until this all happening. So with every bit of me, I want to say that I could not – I could not live there and take my children there, and remove them from my family as well.”[102]
[101] Referring to the Applicant’s sister who recently died.
[102] Transcript Day 1, 68-69.

Ms P’s evidence above crystalised a number of challenges which the family could potentially face. Those challenges directly impact on the Applicant, particularly on his mental health and ability to resettle in Greece.
Dr Kwok expressed the opinion that it is in the interest of Ms P that the Applicant remains in Australia. Dr Kwok observed that in addition to being the main provider for the family, the Applicant provides emotional support, and with Ms P’s current mental disorder (i.e. Adjustment Disorder), it will also be in her interest to remain in Australia with him and seek psychological treatment.[103]
[103] Ex 5 [85].
The Respondent accepted that this consideration warrants some weight against refusal. However, the Respondent argued that this consideration only marginally weights in the Applicant’s favour because it is a culture that is familiar to him and he did not spend his formative years in Australia. The Tribunal has given regard to those submissions but on balance, is satisfied that the impediments in this case are significant and would have adverse impacts on the Applicant, including a financial, emotional and psychological impact.
The Tribunal gives this consideration significant weight against refusal.
c)Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[104]
[104] Direction 99 [9.3].
The Tribunal does not have specific information about any impact of refusal or grant on the victim.
The Tribunal gives this consideration neutral weight.
d)Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of impact on an Australian business.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
There are no other matters for consideration.
CONCLUSION
There are aspects in favour of refusal, such as protection of the Australian community, and the expectations of the Australian community, which weigh heavily in favour of refusal. There are neutral aspects and those against refusal. The strength, nature, and duration of the Applicant’s ties to Australia, the best interest of children, and the extent of impediments in case of removal, weigh heavily against refusal.
The Tribunal, and for the explained reasons, finds that:
·Primary considerations 1 and 5 weigh heavily in favour of refusal.
·Primary consideration 2 is neutral.
·Primary considerations 3 and 4 weigh heavily against refusal.
·Other considerations a, c, and d are neutral.
·Other consideration b weighs heavily against refusal.
As previously mentioned, Direction 99 provides 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 99 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, it concerns the appropriate weight to be given to both 'primary' and 'other considerations.' This, in effect, 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.[105] The Tribunal is of view that the ‘other consideration,’ being the extent of impediments in case of removal weighs heavily against refusal, and should be given greater weight.
[105] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23] considering para 8(4) of Direction No 79, the equivalent to para 7(2) of Direction 99. The Full Court endorsed this interpretation in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19. The Full Court held at [34] that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to set aside the decision under review.
DECISION
The decision under review is set aside and remitted to the Respondent for reconsideration with the direction that the visa not be refused on character grounds under section 501 of the Migration Act 1958 (Cth).

142. I certify that the preceding one-hundred and forty-one (141) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate

Dated: 19 September 2023

Date of hearing(s):

11 and 12 September 2023

Counsel for the Applicant:

Mr N Poynder, Frederick Jordan Chambers

Solicitor for the Applicant:

Mr Donald Chen, Kinslor Prince Lawyers

Counsel for the Respondent:

Mr G Johnson

Solicitor for the Respondent:

Ms Q Ren, HWL Ebsworth Lawyers

Date of hearing(s):	11 and 12 September 2023
Counsel for the Applicant:	Mr N Poynder, Frederick Jordan Chambers
Solicitor for the Applicant:	Mr Donald Chen, Kinslor Prince Lawyers
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Ms Q Ren, HWL Ebsworth Lawyers