Tollitt and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2024] AATA 156
•9 February 2024
Tollitt and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 156 (9 February 2024)
Division:GENERAL DIVISION
File Number: 2023/8635
Re:Mark Tollitt
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic
Date of decision: 9 February 2024
Place:Melbourne
The Tribunal sets aside the reviewable decision and, in substitution, decides not to exercise the discretion under s 501(2) of the Act to cancel the Applicant’s visa.
.......................[sgd].................................................
Senior Member A. Nikolic, AM CSC
CATCHWORDS
MIGRATION – Citizen of the United Kingdom – cancellation of Class BB Subclass 155 Resident Return (Permanent) Visa – 2018 conviction for Indecent Assault – failure to pass good character test – whether another reason why mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – reviewable decision set asideLEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Privacy Act 1988 (Cth)
Sex Offenders Registration Act 2004 (Vic)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs [2020] HCA 56
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160
Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) < FOR DECISION
Senior Member A. Nikolic
9 February 2024
INTRODUCTION
The Applicant seeks review of the Respondent’s decision, made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”), to cancel his Class BB Subclass 155 Five Year Resident Return (Permanent) Visa (“the visa”).
The hearing was held in person on 23 and 24 January 2024 at the Tribunal’s Melbourne Registry. The Applicant was self-represented. The Respondent was represented by Ms Samantha Liddy, a solicitor from Sparke Helmore Lawyers.
For the following reasons, the Tribunal sets aside the reviewable decision and, in substitution, decides not to exercise the discretion under s 501(2) of the Act to cancel the Applicant’s visa.
BACKGROUND
The Applicant is a 59-year-old citizen of the United Kingdom[1] who lived there until his mid-20s. He completed Year 12 in England, undertook an apprenticeship, and worked within his trade. He had a child with his then partner and, after that relationship ended, migrated to Australia in late 1993.[2] The Applicant was then almost 29 years of age and has departed and returned to Australia over 20 times since.[3]
[1] Exhibit R1, 59.
[2] Ibid 141.
[3] Ibid 139-141.
The Applicant married an Australia woman in 1994 and they subsequently had three children together. In February 2010 he was involved in a traffic accident while riding a motorcycle, resulting in serious injuries. The Applicant had a complicated recovery and received compensation from the Traffic Accident Commission (“TAC”).
The Applicant and his Australian wife separated in 2012.[4] In 2014 a litigation guardian was appointed for a time to protect his interests. In December 2015 the Victorian Civil and Administrative Tribunal appointed an administrator to manage his affairs.[5] The Applicant successfully applied to revoke this arrangement in 2016.
[4] Ibid 56; 59; 67; 71.
[5] Ibid 56-57; 82; 85; 86.
On 20 February 2018, the Applicant was convicted in the Magistrates’ Court of Indecent Assault.[6] His appeal to the County Court against conviction and sentence was unsuccessful.[7] On 26 March 2019 and 11 October 2019, he was convicted of failing to comply with his reporting obligations under the Sex Offenders Registration Act 2004 (Vic) (“SORA”), for which he was fined.[8]
[6] Ibid 26.
[7] Ibid 27-28.
[8] Ibid 26.
In August 2019, the Applicant travelled overseas to marry a woman he met online two years earlier.[9] His wife, who the Tribunal will refer to as Ms NR has two children from a previous relationship in her home country. The Applicant is currently sponsoring Ms NR and her youngest daughter’s permanent migration to Australia. Ms NR has lived with the Applicant in Australia since 2020. Her daughter, who is almost 16, joined them here in 2022 after living for a time with paternal relatives in her home country.
[9] Ibid 91.
On 24 July 2023, approximately eight years after the conduct that led to the Applicant’s conviction, a delegate of the Minister told him that consideration was being given to cancelling his visa.[10] On 3 August 2023, the Applicant made representations against visa cancellation.[11]
[10] Ibid 92.
[11] Ibid 31-48.
On 20 November 2023, the Applicant was advised that his visa was cancelled,[12] which he acknowledged on the same day.
[12] Ibid 7.
On 20 November 2023, the Applicant asked the Tribunal to review the cancellation decision.[13]
[13] Ibid 1-6.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[14] Failure to do so results in the reviewable decision being affirmed by operation of law. The 84th day in this matter falls on 12 February 2024.
[14] Pursuant to s 501G(1) of the Act.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa cancellation decisions.
Section 501(2) of the Act is one of several discrete powers conferred under s 501. It provides that:
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Amongst other things, s 501(6)(e) of the Act was introduced, with the Explanatory Memorandum stating in part:
‘New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child…
…
The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test…’[15]
(Emphasis added)
[15] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50].
The character test is defined in sections 501(6) to 501(12) of the Act and refers to a range of matters a decision-maker may have regard to in deciding whether to refuse, cancel, or revoke a mandatory cancellation decision. Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
…
If an applicant fails the character test, the Tribunal must then determine whether the discretion under section 501(2) of the Act to cancel the visa should be exercised.[16]
[16] In undertaking this task, the Federal Court has reinforced the importance of adhering to a two-step process mandated by s 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69; Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119.
DIRECTION 99
The Tribunal must comply with a ministerial direction made under s 499(1) of the Act known as ‘Ministerial Direction 99’ (“the Direction”).[17] This commenced on 3 March 2023. The Tribunal ‘stands in the shoes of the original decision-maker’ and considers the case afresh based on the material currently before it.[18]
[17] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4]; Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 2 [4].
[18] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98]; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11]; AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizens 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 cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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 measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a 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.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[19]
[19] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[20]
[20] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Annex A of the Direction states that a person does not pass the character test if a court in Australia or a foreign country has convicted them of one or more sexual offences involving a child.[21] This provision applies irrespective of the level of penalty or orders made regarding the offence.[22]
[21] Annex A, Section 2, clause 7.
[22] Ibid cl 7(3).
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 26 February 2019, the Applicant was convicted in the Magistrates’ Court of Victoria of Indecent Assault. The conviction and sentence were upheld on appeal to the County Court. The Applicant’s offending constitutes a sexually based offence involving a child, which means he does not pass the character test under s 501(6)(e) of the Act.[23]
[23] Pursuant to s 501(6)(e) of the Act.
ISSUE TO BE DETERMINED
The issue to be determined is whether the discretion under s 501(2) of the Act to cancel the Applicant’s visa should be exercised.
CONFIDENTIALITY REQUEST
On 29 December 2023 the Applicant requested that a confidentiality order be applied, invoking the Privacy Act 1988 (Cth). He stated that the issues raised by his application were ‘private’ but did not advance a legislative provision in support of his request.
Pursuant to ss 43(2B) and 43(3) of the AAT Act, the Tribunal must include findings on material questions of fact and references to the evidence or other material on which those findings are based in its written reasons. With certain statutory exceptions, the default position in the Tribunal is for public hearings, public availability of evidence, and publication of decisions.[24] This is adopted in the interests of transparency and public awareness. It is for an applicant to persuade the Tribunal that a confidentiality order is necessary rather than desirable. This has been described as a ‘very heavy’ onus[25] where ‘Mere belief that the order is necessary is insufficient’.[26] Factors such as embarrassment or general privacy claims are insufficiently cogent to depart from the open justice principle.[27] The Full Court of the Australian Federal Court held in Salah:[28]
‘A person who wishes to litigate a proceeding before a court of law does so in light of, and subject to, the principle of open justice. Suppression or non-publication orders, including the use of pseudonyms, must be applied only in circumstances where such an order is necessary in the interests of justice (Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed) or the person’s circumstances otherwise satisfy one or more of the grounds in s 37AG(1) of the Federal Court Act or a pseudonym is required by statute, such as s 91X of the Migration Act 1958 (Cth).’
[24] Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (Edelman J) at [8].
[26] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 477 (McHugh JA).
[27] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, [74]-[76].
[28] Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186, [8], citing with approval Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 (Rares, Perry and Hespe JJ).
The Tribunal notes a confidentiality order was not applied for the Applicant’s criminal matter in the Magistrates’ Court nor his appeal in the County Court. Having considered the brief and general issues advanced by the Applicant, the Tribunal finds they are insufficiently cogent to depart from the default position of a public hearing, public availability of evidence, and publication of decisions. It follows that the confidentiality request is declined.
EVIDENCE BEFORE THE TRIBUNAL
Documentary evidence
The following materials were taken into evidence:
(a)G-Documents numbering 141 pages;[29]
[29] Exhibit R1.
(b)Supplementary G-documents numbering 235 pages;[30]
[30] Exhibit R2.
(c)Extracts from GOV.UK website titled ‘Family visas: apply, extend or switch’ and ‘Using the NHS when you return to live in the UK’;[31]
[31] Exhibit R3.
(d)The Applicant lodged over 1600 pages of documents during the pre-hearing phase, much of which was already in the G-documents, or not directly relevant to this proceeding, or subject to Legal Professional Privilege. The following documents were subsequently taken into evidence at the hearing:
i.Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) and 7-page undated and unsigned statement;[32]
[32] Exhibit A1.
ii.1-page undated statement of the Applicant’s eldest son;[33]
iii.1-page undated statement of the Applicant’s youngest son;[34]
iv.1-page undated statement of the Applicant’s daughter;[35]
v.8-page Neuropsychological Assessment Report by Dr L.M. Vowels dated 16 April 2014;[36] and
vi.13-page Cognitive Assessment by psychologist Mr Patrick Abou-Ghalioum dated 18 March 2022.[37]
[33] Exhibit A2.
[34] Exhibit A3.
[35] Exhibit A4.
[36] Exhibit A5.
[37] Exhibit A6.
Oral evidence
The Applicant, his wife, and three of his children gave oral testimony during the hearing. The Tribunal found them to be honest and forthright witnesses.
Expert evidence
The Tribunal has considered several expert reports in evidence that were unchallenged by the Respondent.[38] These include that the Applicant has been diagnosed with an Acquired Brain Injury (“ABI”), cognitive deficits, and has previously required the appointment of a litigation guardian and administrator.[39] It is also not in dispute that the Applicant has suffered periods of serious depressive illness.
[38] Exhibit R1, 54-68; Exhibits A5 and A6
[39] Exhibit R1, 65-68.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, 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 they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended 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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
There is no evidence the Applicant has committed any offences prior to arrival in Australia. His Indecent assault conviction relates to an incident where he twice put his hand on a 17-year-old victim's stomach area and moved his hand towards her groin, before she pushed it away.[40] The Applicant was fined $1500 and subjected to obligations under the SORA for eight years. His appeal against conviction and sentence was unsuccessful.[41]
[40] Ibid 29; 50-51.
[41] Ibid 27-28.
The Applicant’s two breaches of reporting obligations under the SORA in 2019 relate to a failure to notify Victoria Police about overseas travel and that he had registered a second motor vehicle. These breaches resulted in fines of $500 and $750 respectively. There is no record of any further breach of the SORA during the last five years. During oral testimony the Applicant referred to the first breach of his SORA obligations as a ‘very stupid decision’, which he regrets and has not repeated. He referred to his failure to report the registration of a recreational vehicle as an oversight and submitted that he has since scrupulously followed his obligations ‘to the letter’ during the last five years.
Any sexual crime against a child, even one who is approaching adulthood, is viewed very seriously regardless of the sentence imposed. The Applicant has not committed another sexual offence during the last nine years despite residing in the community. His offending is isolated and there is no trend of increasing seriousness. The fact that he received a $1500 fine for an offence carrying a 10-year maximum sentence of imprisonment, and two relatively small fines for the SORA breaches, is indicative of the Court’s assessment of relative seriousness. That said, the Tribunal considers his first breach of the SORA was more serious given he intentionally failed to disclose his overseas travel to authorities, despite knowing he was obligated to do so. The Applicant has not previously received a formal warning from immigration authorities and no claim is made by the Respondent that he has provided false or misleading information to the Department.
The nature of the Applicant’s offending, although isolated and quite dated, is nevertheless serious and weighs in favour of exercising the discretion to cancel his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, 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).
This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[42] The notion of risk and its nexus to future possibility were explored by Mortimer J, as her Honour then was, in Murphy, where it was noted:[43]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[42] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[43] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [43]), the following passage, at [111], related to what constitutes an unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
A repeat of the Applicant’s indecent assault offence could cause psychological harm and emotional distress for a future victim and their family.
The Applicant denied committing indecent assault during a police interview on 18 May 2015 and has since staunchly maintained his innocence. It is impermissible, however, for the Tribunal to impugn the essential factual basis of a criminal conviction.[44] During oral testimony the Applicant referred to the conduct resulting in his conviction as a ‘mistaken touch’,[45] and said he had accepted the consequences of his conviction. He expressed remorse for ‘entering the young lady’s private space’, inadvertently scaring her, and for the SORA breaches. He has resolved never to put himself in a position again where a similar accusation could be levelled against him.
[44] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
[45] Exhibit R1, 130. See also ASFIC, 5 [41].
The Applicant submitted he poses ‘no risk’ to the Australian community[46] and invoked several protective factors that put him in a different situation to 2015. This included marriage to Ms NR, the interests of his stepchild, support from immediate family, and alleviation of the depressing circumstances following his 2010 motorcycle accident. These include divorce, financial problems, and the consequences of the criminal charge he answered. The Applicant referred to the absence of any reoffending for almost nine years despite him living in the community.
[46] ASFIC, 4 [31].
Ms Liddy submitted that the Applicant’s continuing denial of the indecent assault represents a failure to accept responsibility and an absence of remorse.[47] She also submitted that the Applicant’s ‘risk of further offending…is unacceptable’ and the protective factors he invokes are comparable to those of the past, which did not prevent his offending.[48] Ms Liddy also pointed to an absence of expert evidence regarding the Applicant’s risk and rehabilitation. The Tribunal notes, however, that there is no order or other mandated requirement requiring the Applicant to undertake rehabilitation.
[47] Respondent’s Statement of Facts, Issues, and Contentions (“RSFIC”), 7 [26].
[48] Ibid, 7 [27]-[28].
On currently available facts the Applicant represents a very low risk of sexual recidivism. This follows from the isolated nature of his offending, the lack of any repeat for almost nine years, and the much-improved circumstances in his life compared to those between 2010 and 2015. This includes marriage to Ms NR, improved financial position given both he and Ms NR are in remunerative employment, the interests of his stepdaughter, and continuing strong support from immediate family members. While the Applicant continues to contest his conviction, the Tribunal does not consider this increases his recidivism risk. He accepts the consequences of his conviction and expresses remorse for the situation he put the victim in. The Tribunal does not accept that the absence of evidence regarding rehabilitation renders the Applicant’s recidivism risk ‘unacceptable’.[49] The Applicant’s unchallenged evidence is that he has discussed ‘his conviction and situation in detail with [his] psychologist’, which has assisted him in dealing with the consequences.[50] The Tribunal considers in this regard that the Applicant’s previous diagnosis with disabling cognitive deficits and an ABI, may be contextually relevant to aspects of the evidence he gave during the hearing. This includes because his conditions may cause him to display incomplete insight and experience adverse symptomology when subjected to stress and pressure.[51]
[49] Ibid, 7 [27].
[50] ASFIC, 5 [40].
[51] Exhibit R1, 66.
The Tribunal is persuaded the Applicant has experienced a salutary lesson, including because of his SORA obligations for eight years. When coupled with the isolated nature of his past conduct, lack of sexual recidivism for approximately a decade, and contextually different circumstances that now exist compared to those between 2010 and 2015, his already very low recidivism risk is even further ameliorated.
On balance, this primary consideration weighs only somewhat in favour of exercising the discretion to cancel the Applicant’s visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction states the following:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effect of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
(d) Whether the non-citizen 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. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The Respondent made the following submissions regarding this primary consideration:
‘On 18 December 2020, police were called to the applicant’s property where he resided with his sister. The applicant had entered his sister’s bedroom where she was with her boyfriend. The applicant abused his sister’s boyfriend stating that he wanted him out of the house. The applicant’s sister got between the applicant and her boyfriend where the applicant pushed his sister in the chest with his left forearm, causing her to fall backward into a chair. When the applicant’s sister told the applicant to leave her room, the applicant swung his right arm and smashed a sliding door mirror in the bedroom. The applicant then left the address. The applicant was issued with a family violence safety notice by police (SG2/159). The applicant was charged with offences of damage property and unlawful assault (SG2/163-164). The applicant’s sister subsequently made a statement of no complaint and the charges against the applicant did not proceed (SG2/165).
The Minister submits that this primary consideration is engaged but does accept that the applicant has not been convicted of any criminal offence that would constitute family violence. The Minister submits that having been the subject of a family violence safety notice issued by Victoria Police, and the police brief of evidence regarding the applicants conduct (SG2/158-175) constitutes family violence conduct for the purpose of Direction 99 and weighs in favour of cancellation’.[52]
[52] RSFIC, 8 [31]-[32].
The Applicant has not been convicted of any family violence offence. When asked by Ms Liddy about the incident involving his sister, preceded by a warning from the Tribunal about his privilege against self-incrimination, the Applicant recalled this dispute and chose to respond. He said that his sister intervened when he demanded her partner leave. The Applicant said she stumbled back into a chair immediately behind her but denied pushing her. He also said the breaking of a sliding glass door was an accident. The Applicant said police did not proceed with any charges and both he and his sister took out a Family Violence Safety Notice against each other, which have expired. He remains estranged from this sister to the present day.
The incident between the Applicant and his sister more than three years ago seems to have been an isolated and not particularly serious disagreement between siblings. They have since ceased living together in the same premises and remain estranged. That said, the imposition of a Family Violence Safety Notice by Victoria Police satisfies the definition of family violence under cl 4(1) of the Direction, including because the Applicant’s conduct may have caused his sister to be fearful. On balance, however, this primary consideration weighs only slightly in favour of exercising the discretion to cancel the visa.
The strength, nature, and duration of ties to Australia
Clause 8.3 of the Direction provides:
(1) 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.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must 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 Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to 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’s immediate family includes Ms NR, who he met in 2017 and married in her home country in 2019. Ms NR has an almost 16-year-old daughter from a previous relationship, who has resided with them in Australia since late 2022. The Applicant is their sponsor for a permanent visa. Ms NR and her daughter are not Australian citizens or permanent residents, nor do they have a right to permanently remain in Australia. Their interests therefore do not fall within cl 8.3 of the Direction. The Tribunal has considered the interests of the Applicant’s stepdaughter under cl 8.4 of the Direction and Ms NR’s interests later under the non-exhaustive list of considerations at cl 9 of the Direction.
The Applicant’s other immediate family in Australia are his parents, four adult children, two sisters, and four grandchildren. He has been estranged from one of his sisters since 2020 and sees the other sibling approximately once a month in the context of their parent’s care. During his oral evidence the Applicant referred to periods of time where he ‘pushed family away’ because of the psychological consequences of adverse life events such as his motorcycle accident, divorce, and financial troubles, but said they have reengaged in recent years and now maintain regular contact.
Geographical distance precludes more frequent physical contact between the Applicant and some family members. For example, one of the Applicant’s children lives interstate and they last saw each other at Christmas. Another son is a busy tradesman who has recently married and lives two hours driving time away. The Tribunal heard oral evidence from three of the Applicant’s four children, who testified about awareness of his offending and continuing closeness of their relationship. The Applicant’s eldest son has three children who are 2, 5, and 9 years of age. He is separated from the children’s mother but has approved visitation one weekend each fortnight and another day each week. The eldest son said the Applicant has a good relationship with his children, who look up to their grandfather. They remain in contact through telephone calls and occasional visits. The Applicant’s daughter has a seven-month-old child and said she and her child see the Applicant ‘every few weeks’ and talk on the telephone. She said the Applicant has visited her child at their home.
The Applicant said he helps supports his elderly parents, talks with them weekly by telephone, and sees them every 3 or 4 weeks. He has chosen not to burden them with details of his past offence and migration issues given their age and health. The Applicant agreed he could stay in contact with relatives and friends in Australia by telephone and social networking if removed but said this would be a less meaningful arrangement to what currently occurs.
The Applicant’s formative years until approximately 29 years of age were spent in the United Kingdom. He has since lived in Australia for over 30 years, which is most of his adult life. During that time, he has developed strong and established ties to the community through work and other interactions. The Tribunal accepts he has contributed through employment, payment of taxes, raising his family, and broader community involvement. The Tribunal also accepts he maintains a close relationship with his parents, adult children, grandchildren, and one sibling. His immediate family members and friends would be adversely emotionally impacted by a cancellation decision. On balance, this primary consideration weighs substantially against exercising the discretion to cancel the Applicant’s visa.
Best interests of minor children in Australia
Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether cancellation of the visa is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.4(4) to 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.
The Applicant invokes the interests of his stepdaughter and four grandchildren as falling within the meaning of the Direction. He stated in documentary submissions that he does not know his grandchildren’s dates of birth or addresses.[53] He further stated that he does not ‘think there would be much impact’ on his grandchildren if he was removed because he only speaks to them on the telephone ‘on very rare occasions’.[54] In oral evidence the Applicant said he had pushed family away in the past because of his circumstances, but they have reengaged and become closer in more recent times. The Applicant’s daughter referred to him playing a ‘big support’ role since the birth of her child by providing her with emotional support. In oral evidence the Applicant’s eldest son said he has separated from the mother of their three children but has access to them one weekend each fortnight and Wednesday each week. He said the Applicant interacts with the children by telephone and they love their grandfather.
[53] Exhibit R1 38.
[54] Ibid 131.
In terms of the impact on Ms NR’s child from a previous relation, who is currently 15 years of age, the Applicant stated in revocation submissions:
‘I cannot really comment as to the impact on my stepdaughter…as I have never asked her personally, and she most likely wouldn't understand. My wife would be devastated as she knows I have always been good to [child’s name redacted] and treated her with respect and kindness like my own biological children. Of course, the department's decision to kick me out of Australia would tear us apart and force them into hardship, something I don't really like to think about until now.’[55]
[55] Ibid.
In oral evidence the Applicant said his stepdaughter had commenced secondary school in Australia, which he and Ms NR were privately funding. He is concerned that his removal from Australia would adversely affect her progress and aspirations for a life in Australia.
The Tribunal accepts the Applicant has a close relationship with his stepdaughter and provides her with financial, practical, and emotional support. This includes assisting her with learning English and contributing financially to her education. His stepdaughter only travelled to Australia in August 2022, however, and it appears she will reach adulthood in approximately two years, during which the Applicant could play a positive role. There also appears no impediment to the Applicant sponsoring permanent United Kingdom visas for Ms NR and his stepdaughter if he was removed. During oral evidence the Applicant stated he had also considered living in Ms NR’s country of origin but felt this would be too difficult financially and that his disability would impede his search for work.
As for the Applicant’s four grandchildren, his relationship with them in the past has fluctuated, but currently appears quite positive. The Applicant does not play a parental role for any of them, but his continued involvement in their lives is valued by their parents.
Allowing the Applicant to retain his visa is clearly in his stepdaughter’s and grandchildren’s best interests. Their interests are differentiated by virtue of his stepdaughter’s reliance on the Applicant as sponsor of her permanent Australian visa, co-funder of her education, and the uncertain future that confronts her and Ms NR if he is removed. The grandchildren’s interests are less compelling given their very young age and the Applicant not playing a parental role. But the grandchildren may want a closer relationship with their grandfather as they get older, which would be much more difficult if the Applicant was removed to the United Kingdom. On balance, this primary consideration weighs moderately against exercising the discretion to cancel the Applicant’s visa.
Expectations of the Australian community
Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[56] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[57] The High Court refused an application for special leave to appeal from the orders in FYBR.[58]
[56] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
[57] Ibid at 473 [75]–[76] (Charlesworth J).
[58] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The Applicant’s conviction for indecent assault raises serious character concerns within the meaning of the Direction. The conduct leading to this conviction occurred approximately eight years ago and was isolated, but the Applicant should nevertheless expect to forfeit the privilege of remaining in Australia.[59] Having regard for the totality of the evidence, however, including those aspects of the evidence favourable to the Applicant, this primary consideration weighs moderately at best in favour of visa cancellation.
[59] The Direction, cls 5.2(1)-(2).
OTHER CONSIDERATIONS
Legal consequences of the decision
The Applicant did not advance submissions in either his documentary or oral evidence about the legal consequences of a decision in this matter and none are discernible from the evidence. This consideration therefore carries neutral weight.
Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant is 59 years old. No apparent language or cultural barriers are apparent. He has experienced very serious physical and mental health issues while living in Australia, originating in 2010 after a serious motorcycle accident. He was placed in an induced coma, underwent an amputation of his right leg, and suffered a period of post-traumatic amnesia and an ABI. His recovery was complicated by infection and underlying osteomyelitis. The Applicant experienced psychological ill health after this accident, which worsened after the breakdown of his first marriage in 2012 and other legal and financial stressors. He has been diagnosed with a Mild Neurocognitive Disorder Due to Traumatic Brain Injury, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a possible differential diagnosis of Post-Traumatic Stress Disorder.[60] Expert evidence has referred to him as ‘highly vulnerable’ because of executive deficits that ‘may affect his ability to think through the consequences of his actions’, with getting himself organised or collecting his thoughts, and ‘may be liable to fail to register things during conversations’.[61] He has previously received the Disability Support Pension (“DSP”) and, although he is currently in work and self-employed in his trade, he may have to return to the DSP because of his physical disability and other impairments.[62]
[60] Exhibit A6, 72.
[61] Exhibit R1, 66.
[62] Exhibit A6, 74.
The Applicant fears isolation in the United Kingdom if removed, increased pain in his amputated leg due to colder weather, and uncertainty regarding care and replacement of his leg prosthesis, which is currently guaranteed for life by the TAC. He is also concerned about managing his disability and finding work in the United Kingdom, which he said would be ‘very challenging’ compared to Australia. He believes that his motivation will suffer because of isolation from his established network of family and friends in Australia. Although he has a brother living in the United Kingdom, they are not close, and the Applicant does not believe he can rely on any support from this sibling.
The Applicant’s references to an inability to access commensurate support and other services in the United Kingdom is misplaced. The requirement under the Direction is to consider a person’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with support available in Australia. There is no evidence that if he needed it the Applicant would not have the same entitlement to healthcare, income support, and other services available to all citizens of the United Kingdom who meet required prerequisites.
The Tribunal accepts that after living in Australia for over 30 years and given his comorbidities, the Applicant will experience impediments and hardship in re-establishing himself. This includes because of likely separation from Ms NR, their stepdaughter, and his established network of family and friends in Australia. This may result in a sense of isolation and deterioration of his physical and mental health. It is possible that his depression and anxiety may worsen, affecting his ability to find work and address his daily needs. There is no persuasive evidence that the Applicant can count on any support from his sole sibling in the United Kingdom or other past relatives and friends. That said, the Applicant is currently employed and able to maintain a life for himself, Ms NR, and his stepdaughter in Australia. The Tribunal is unpersuaded that any impediments confronting him if returned to the United Kingdom are insurmountable. On balance, this consideration weighs moderately at best against exercising the discretion to cancel the Applicant’s visa.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal from the victim of the Applicant’s offending or her family members within the meaning of the Direction. This consideration therefore carries neutral weight.
Impact on Australian business interests
Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration therefore carries neutral weight.
Additional consideration – Interests of Ms NR
Although Ms NR does not fall within the meaning of cl 8.3(1) of the Direction, the Tribunal considers it appropriate to consider her interests under the non-exhaustive list of other considerations at cl 9(1) of the Direction. She has lived in Australia with the Applicant for almost four years, is employed fulltime, owns a car, and has made a significant commitment to their relationship by moving to Australia and making a considerable financial contribution to a permanent visa process for herself and her daughter under the Applicant’s sponsorship.
Ms NR gave oral testimony with the assistance of an interpreter. The Tribunal was unable to accept the statement lodged in her name into evidence, because it was written in English and Ms NR was unable to read or understand it in that form. Ms NR said a friend translated the statement from her native language, while the Applicant said she did so herself using an online translation program. In any event, Ms NR’s evidence was elicited through cross-examination by Ms Liddy and questions from the Tribunal.
Ms NR said she is aware of the Applicant’s offending and remains supportive of him. She has not left Australia since arriving in 2020 and fears for her future and that of her daughter if the Applicant is removed. This includes because of limited support available in her country of citizenship, loss of fulltime work and stable housing in Australia, and the likely end of her aspiration for a life in Australia. She has discussed the prospect of accompanying the Applicant to the United Kingdom, or them living together in her country of citizenship but feels this would be very difficult given their advancing years and the Applicant’s disability. The possible disruption to her and her daughter’s life, after deciding to resettle in Australia, makes her feel ‘very sad and upset’.
There seems no impediment to the Applicant sponsoring Ms NR and his stepdaughter on a permanent partner visa if returned to the United Kingdom. Notwithstanding the practical difficulties, there also appears no impediment to him eventually re-establishing himself in either the United Kingdom or Ms NR’s country of citizenship. The Applicant is well travelled, currently in fulltime work, and has transferrable skills. On balance, this consideration weighs only slightly in favour of exercising the discretion not to cancel the Applicant’s visa.
CONCLUSION
The Applicant does not pass the character test. In determining whether to exercise the discretion under s 501(2) of the Act to cancel his visa, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason, on these facts, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant has committed an offence that is viewed very seriously, irrespective of the sentence imposed. On these facts, however, his risk of repeating the conduct in early 2015 that resulted in his conviction is very low. His offending is isolated, occurred almost nine years ago, and has not been repeated despite the Applicant living in the community. His contextual circumstances are also vastly different from those that preceded his offending between 2010 and 2015. His crime and the community expectations it enlivens do not weigh determinatively against him.
The Tribunal is persuaded the Applicant has experienced a salutary lesson in the years after his 2015 conviction. The strongest features of his case are the strength and nature of his ties to the Australian community over the last 30 years, the interests of his immediate family members in Australia, and the extent of impediments confronting him if returned.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds the discretion to cancel the Applicant’s visa should not be exercised. That is because the primary considerations ‘Strength, nature and duration of ties to Australia,’ ‘Best interests of minor children’, and the other countervailing considerations, outweigh the combined weight of the primary considerations favouring cancellation.
DECISION
It follows that the Tribunal sets aside the reviewable decision and, in substitution, decides not to exercise the discretion under s 501(2) of the Act to cancel the Applicant’s visa.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
…………[sgd]……………………….
Associate
Dated: 9 February 2024
Date of hearing:
23 and 24 January 2024
Advocate for the Applicant:
Applicant in person
Advocate for the Respondent:
Ms Samantha Liddy
Solicitors for the Respondent:
Sparke Helmore Lawyers
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