TRTZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 792

TRTZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 792 (6 April 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0286
Re:TRTZ
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member

Date of decision: 6 April 2023
Date of written reasons: 18 April 2023
Place:Sydney

The reviewable decision, being the decision of the delegate dated 16 January 2023 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the Applicant’s visa is revoked.
.................[Sgd].....................................................
Mr S Evans, Member
Catchwords
MIGRATION – Non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test by virtue of his “substantial criminal history” – whether there is “another reason” to revoke the mandatory cancellation – consideration of Ministerial Direction 99 – sexual offences against minor – interests of minor children who are not biologically related to Applicant - children without close family – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Cooley v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4561
FYBR v Minister for Home Affairs [2019] FCAFC 185
Sebastian v Minister for Immigration, Multicultural Affairs and Indigenous Affairs [2005] FCAFC 31
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
Secondary Materials
Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
18 April 2023
INTRODUCTION

TRTZ (the Applicant) is a 55 year-old citizen of New Zealand who began residing in Australia on 27 April 1999.[1] On 6 October 2021 the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) following convictions for 15 counts of indecent treatment of child under 16 (procure to commit) lineal descendant/guardian/carer[2] for which he was sentenced to multiple terms of imprisonment to be served concurrently and suspended for a period of 4 years after serving 15 months (the cancellation offence).[3]
[1] G8/294
[2] G2/11
[3] G2/24
The Applicant seeks review of the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) who decided on 16 January 2023 not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY, Subclass 444) visa (the visa) under subsection 501CA(4) of the Act (the non-revocation decision).
For the reasons which follow, on 6 April 2023 the Tribunal set aside the non-revocation decision pursuant to section 501CA(4) of the Act, and in substitution the cancellation of the Applicant’s visa was revoked.
RELEVANT LAW AND MINISTERIAL DIRECTION 99
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is 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).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[4]
[4] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal and other serious conduct;
(2)family violence committed by the non-citizen;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
As the Applicant was sentenced to a term of imprisonment greater than 12 months in the District Court of Queensland on 15 September 2021, I am satisfied that he does not pass the character test for the purpose of subparagraph 501CA(4)(b)(i) of the Act.
Having found that the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
EVIDENCE
Evidence of the Applicant
The Applicant made written submissions and provided oral evidence at the hearing.
In an undated written statement the Applicant recalls his childhood in New Zealand. At age 4 his mother left him at a childcare centre and did not return. He and his siblings were raised by his father and with the aid of his eldest sister who had left school to help care for her family.
The Applicant describes having a difficult childhood during which he was ‘tormented’ by his father and older brother. When his elder sister and childhood carer passed away in 2008 the Applicant returned to New Zealand for her funeral. After the funeral, the Applicant’s father told him to return to Australia and to not come back.[5]
[5] G2/61-62
In August 2003 the Applicant met JS. In 2005 JS gave birth to the first of their two daughters, XA. The Applicant left JS when he discovered she was using illicit drugs, including methamphetamine and heroin. The Applicant claims that JS told him take ‘your fucking daughter with you’ and threw XA at him ‘like a football’.[6]
[6] G2/63
JS was subsequently imprisoned. Whilst incarcerated she and the Applicant wrote to each other, and upon her release in May 2006 JS moved in with the Applicant. She left a few days later, telling the Applicant that she ‘liked heroin too much’. During that short stay a second daughter, DS, was conceived. By the time the child was born in 2007, JS was once again in prison. When their second daughter was 9 months-old she was given over to the care of the Applicant.[7]
[7] G2/64
In September 2013 police contacted the Applicant and asked him to take care of another child belonging to JS, a two year-old boy I will refer to as QT. As the Applicant is not QT’s biological father, the child remained under a state guardianship order but raised by the Applicant as a ‘kinship carer’. The Applicant’s evidence is that he views QT as his own son and raised him as such. The Applicant reports that QT’s biological father is unknown, and the child hardly knows his mother.[8]
[8] G2/64
In August 2017 JS gave birth to a fourth child, AJ. The Applicant attended the birth as the child’s biological father had passed away shortly before she was born. AJ remained in hospital until she was two weeks old, after which she was given over to the care of the Applicant. As JS had continued to use drugs whilst pregnant, AJ suffered from drug withdrawal after she was born. She required intensive care in the hospital and subsequently at home. The Applicant described caring for AJ when she was an infant as being extremely traumatic.[9]
[9] G2/66
Until his arrest in 2020, the Applicant and the four children resided together.[10] Following his arrest, the children were taken into the care of Child Safety whilst the Applicant awaited trial.
[10] G2/24
Character references
EN is the Applicant’s neighbour. He writes in a letter dated 14 February 2023 that he has known the Applicant for approximately 10 years. EN’s daughter attended school with the Applicant’s daughters. He considers the Applicant a trustworthy individual whose offending was out of character, and is willing to provide him with accommodation should he be released back into the community.
ON is managing director of a wholesale food supply company where the Applicant was previously employed. In a letter dated 31 January 2023 he writes that the Applicant is an exceptional and reliable employee who was well-regarded by the management and peers. He also states they are prepared to offer him employment should he be allowed to remain in Australia. ON does not indicate that he is aware of the nature of the Applicant’s offending.
Primary consideration 1 – protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s criminal history prior to his migrating to Australia is set out in a New Zealand Police Criminal History produced on 17 November 2021.[11] He was convicted of driving, theft and drug possession offences between 1985 and 1992, with one conviction of assault police – (manual) for which he was sentenced to 2 months non-residential periodic detention.[12] In August 1992 the Applicant was convicted of assist offender to avoid arrest and sentenced to 9 months imprisonment.[13]
[11] G2/25
[12] G2/26
[13] G2/25
The Applicant did not reoffend between 1992 and 2008, when he appeared in Brisbane Magistrates Court where he was fined $150 for commit public nuisance with no conviction recorded.[14]
[14] G2/24
The cancellation offence
On 15 September 2021 the Applicant was convicted by the District Court of Queensland of 15 counts of indecent treatment of children under 16 lineal descent/guardian/carer and sentenced to multiple terms of imprisonment of 15 months, 18 months, two years and six months, 3 years and 4 years, all to be served concurrently and suspended for a period of 4 years after serving 15 months.[15]
[15] G2/23-24
The sentencing remarks of Judge Clare SC set out the details of his offending. Her Honour described the Applicant’s conduct and the circumstances of the offending against the child which took place over a four-month period as the 'persistent and calculated abuse of an underage girl'.[16]
[16] G2/29
The Applicant's offending occurred whilst he was in a position to provide care to the victim and Judge Clare determined this was a 'gross betrayal of trust, and there have been substantial psychological consequences of the kind that might have been foreseen'.[17] Her Honour stated that the Applicant's offending caused the victim to be 'traumatised’:
The victim is still traumatised. She has nightmares. Where before she had been naïve and trusting, she is now frightened of people. She describes herself as being filled with dread.[18]
[17] G2/29
[18] G2/29
Paragraph 8.1.1(1)(a)(i) of Direction 99 states that offences committed against vulnerable members of the community are particularly serious. I accept the Respondent’s submission that the Applicant’s sexual offending against a child under 16 years of age is offending against a vulnerable person.[19]
[19] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [17]
Direction 99 requires the Tribunal to have regard to the frequency of the Applicant’s offending and any trend of increased seriousness. The Applicant’s offending began with comparatively minor offences in New Zealand prior to 1992, with some limited exceptions including the conviction for assaulting police. However, his most recent offending is far more serious.
Considered cumulatively, the impact of the 15 counts of sexual offences against a child under the age of 16 years across a 4-month period weighs heavily against the Applicant. Even taking into consideration the Applicant’s lack of offending since his arrival in Australia, his offending should be considered particularly serious in the context of Direction 99.
For these reasons, I find that the seriousness of the Applicant’s offending weighs heavily against the revocation of the cancellation decision.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Should the Applicant engage in further criminal or other serious conduct similar to his most recent offending, the harm caused to the Australian community would be substantial. Children are vulnerable members of the community who may be expected to suffer emotional, psychological and physical harm should the Applicant reoffend. I note Judge Clare’s remarks regarding the serious harm and trauma caused by the Applicant’s sexual offending against a child and acknowledge that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
The likelihood of engaging in further criminal or other conduct
The Applicant’s criminal history in Australia is limited to the cancellation offence which consisted of 6 incidents over a 4-month period during 2020.
In correspondence received on 24 January 2022 the Applicant confirms applying for a risk of reoffending score which was provided by Queensland Corrective Services on 4 January 2022.[20] A Queensland Corrective Services document records that the Applicant was ‘assessed as having a Risk of Reoffending Prison Version (RoR-PV) score of 1 which indicates ‘the Applicant] fall[s] into the category of prisoners who pose a low risk of further general offending’. The document also notes the Applicant had no prior convictions and the Applicant submits the report substantiates his claim to be at low risk of reoffending.[21]
[20] G2/92
[21] G2/89

During the hearing, the Applicant argued that he is not a repeat offender or a ‘threat to society’, telling the Tribunal that the offending was ‘an isolated chapter’ of his life.[22] He has participated in rehabilitation programs in prison and seeks to continue his rehabilitation should he be released back into the community, ideally with the help of a psychologist. He claims to be remorseful and to have learnt from his offending. He told the Tribunal that he learnt his lesson the moment he returned home after being arrested to find his children had been removed.
[22] Closing submissions of the Applicant dated 21 March 2023
A Queensland Corrective Services memorandum dated 11 January 2022 states that the Applicant was listed to attend two sessions of the SSI Program (Short Substance Intervention) which provided 12-hours of program over two sessions.[23] Separate documents state that the program had been cancelled for that time due to COVID-19 restrictions.[24] Nonetheless, the Applicant was able to complete the SSI Explore Program on 23 March 2022.[25]
[23] G2/93
[24] G2/97 and G2/105
[25] G2/148
While in prison and in detention the Applicant also completed a Substance Intervention Program on 26 May 2022[26] and a Preparatory Program for Sexual Offending (GS:PP) on 10 June 2022.[27]
[26] G2/152
[27] G2/171-173
It was the Applicant’s evidence that he pleaded guilty to his offending in order to spare the victim more trauma.[28] He explained that at the time the offences occurred he was using methamphetamine, or ice, which had caused him to behave like a ‘lunatic’ and turned him into a ‘heinous monster’. The Applicant gave evidence that his use of ice began after it was given to him by a friend to help lift his mood during a period of depression. He claims that his use of ice was limited to the period during which the offending occurred and exacerbated by his inability to cope with COVID-19 ‘lockdowns’.
[28] G2/219
The Applicant admitted to using cannabis in the past and acknowledges some of his New Zealand offences were drug related. A progress report prepared following the Applicant’s participation in the GS:PP program indicates he demonstrated limited insight and remorse for his offending, and acknowledged alcohol and drug use ‘was a prevalent theme throughout his life’. It is also recorded that the Applicant spent considerable time with anti-social peers. The Applicant does not consider he has a substance abuse issue or addiction.
Despite having entered a guilty plea and his claim to be remorseful for his offending, the Applicant disputes aspects of the sexual offending for which he was convicted and claimed not to have read the statement of facts which was presented to the Court. He specifically denied the offending was planned or that he sought to treat the victim ‘like a prostitute’, or offered the victim money in exchange for sex or withdrawing his superannuation for that purpose.
The Applicant also gave evidence that the parents of the victim, who was a friend of his eldest daughter XA, had earlier shown XA sexually explicit material. He contends that he was having a ‘breakdown’ during that time and was unable to cope with the additional stress this had placed on him.
Asked how he believed his offending had affected the victim, the Applicant said that he thought the experience would have been traumatic for her. He denied that the victim was scared of him arguing that the victim returned to his home ‘repeatedly’ over a period of six months following his arrest during which the victim and others fired marbles at his home from a sling-shot.
Taken at its highest, in denying aspects of his offending and his evidence regarding the actions of the victim and her parents indicates a lack of insight on the part of the Applicant. His evidence in this regard also gives cause to question the extent of his remorse into his offending.
Conclusion as to the risk to the Australian community
I take into account that until the cancellation offence, the Applicant had no criminal convictions in Australia. Beyond being sentenced to a significant term of imprisonment, the Applicant has paid a high price for his crimes – he has lost both his family and his right to remain in Australia. It is apparent that this has had a salutary effect on him which can be expected to further reduce the risk of reoffending. However, the Applicant’s evident self-pity and attempts to highlight his own suffering in circumstances which were entirely of his own doing is of considerable concern.
Nonetheless, taking into account the favourable risk of reoffending assessment by Queensland Corrective Services, his guilty plea, his participation in rehabilitation programs and the absence of prior offending in Australia, I am satisfied that the likelihood of the Applicant reoffending is low. Nonetheless, having regard to the factors identified in Direction 99 and the potential harm that would result should the Applicant reoffend in a similar matter, this primary consideration weighs heavily against revocation.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Part 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
As the Applicant has not committed any family violence this primary consideration is not engaged.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
I am required to consider the impact of the decision on Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely.
The Applicant arrived in Australia as an adult age 31. At the time he arrived two of his sisters were living in Australia.[29] The Applicant gave evidence of having worked continuously since his arrival in Australia 1999, with the exception of short periods where he had to stop work to care for his children.[30]
[29] G2/63
[30] G2/55
Paragraph 8.3(4)(a)(ii) states that more weight should be given to the time a non-citizen has spent in the Australian community where the non-citizen has contributed positively to the community. In this regard the Applicant submits that the care of his children should be taken into account. He has endeavoured to keep the four children together as a family and was successful in doing so until his arrest. In circumstances where the Applicant has had almost exclusive care of his own children and cared for two children with whom he is not biologically related, I consider his contribution to the Australian community has been significant.
Outside of his children, there is little evidence of the Applicant having participated in the community or having established close ties with others, though I acknowledge the letters of support provided by his neighbour EN and ON, his former employer. The Applicant has also provided a support letter from a colleague DR dated 20 March 2023. DR writes that she knows the Applicant to be a strong source of support for his children and that she and the Applicant’s other former colleagues want him to return to work.
In total, there is limited indication that the Applicant has close ties or involvement with others in the Australian community. However, the Applicant has spent most of his adult life in Australia and his contribution in caring for his children – including two whom he is not related – has been significant. In caring for these children, the Applicant has provided a home to four Australian citizens who would otherwise be expected to have required the care of the state.
I note also that as the Applicant’s daughter XA turns 18 within a few days of this decision. She will no longer be able to rely on the state for her care and I accept the Applicant’s evidence he is the only adult family member with whom she has a close relationship. The Applicant has indicated he intends to provide XA with emotional and practical support, including helping her find employment, if he is able to remain in the community.
Taking the above into account, this consideration accordingly weighs strongly in favour of revocation and is afforded considerable weight.
PRIMARY CONSIDERATION 4 - BEST INTERESTS OF MINOR CHILDREN
Direction 99 requires the Tribunal to make a determination about whether revocation of the mandatory cancellation is in the best interests of any minor children in Australia affected by the decision. The Direction sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
There are 4 minor children who will be affected by this decision. The two eldest are biologically related to the Applicant, while the youngest two are not. Until his arrest, all four of the children were being cared for by the Applicant, after which they were placed into care:
·17 year old XA
·15 year old DS
·12 year old QT
·6 year old AJ
XA and DS are the Applicant’s biological daughters. QT and AJ, have the same biological mother as XA and DS. Though not biologically related to the Applicant, both QT and AJ were placed in his care as infants. It was the Applicant’s evidence that should he be released back into the community; he does not intend to seek custody of the minor children. Rather, he plans to maintain regular contact with the children and provide practical and emotional support to them.
Paragraph 8.4(4)(a) prescribes a general rule that the best interests of minor children ought to attract limited weight in circumstances where a person’s relationship with that child has been affected by significant absences. In this regard the Applicant has been in prison or held in immigration detention since 2021. Subsequent to his arrest, all four of the children were placed into care and his access to the children is restricted by child protection orders which remain in force.[31] However, the Applicant was able to have regular contact with the children each fortnight for one hour and longer on special occasions. He has also maintained contact with the children through phone, messaging and email as permitted by child protection services since being imprisoned, and screenshots of these exchanges were before the Tribunal.
[31] See G2/186, G2/187, G2/207, G2/69, and Letter from Anna Wood dated 15 February 2023
As the Full Court of the Federal Court explained in Sebastian v Minister for Immigration, Multicultural Affairs and Indigenous Affairs, in cases of visa cancellations, the initial assumption is that the best interests of a child will generally be served by remaining with their parents.[32] However, Direction 99 makes clear that this assumption must be counterbalanced by other considerations and factors, some of which may indicate that it is not in the best interests of the child for the cancellation to be revoked. which are to be weighed against that assumption.
[32] [2005] FCAFC 31, [14]
Paragraph 8.4(4)(c) requires the Tribunal to take into account the impact that any of the Applicant’s previous conduct might have had upon the children whose interests the Applicant now relies for the purposes of seeking revocation of the cancellation decision. As the victim of the Applicant’s offending was a friend of his daughter the Applicant’s conduct can be expected to have had negative consequences for XA. In the circumstances the presumption that a child’s best interests will be serviced by the Applicant’s continued residence in Australia is open to moderation.
Correspondence from Springfield Child Safety Service Centre dated 20 January 2022 sets out contact arrangements between the Applicant and XA and DS.[33] The correspondence states that both children had advised they would like to continue contact with the Applicant. However, both expressed the offending and the court case were distressing for them and they did not wish to speak about these matters with the Applicant during their time with him.[34]
[33] G2/98
[34] G2/98-100
The Applicant submits that the childrens’ mother has had very limited contact with them throughout their lives and has not sought contact following his arrest and their removal from his care. He submits that XA has ‘heard from her mother 2 times’ and that on both occasions her mother asked her for money, He submits that JS does not engage with child services authorities and rarely turned up to supervised visits which had been organised in the past. He also states that JS’s extended family have historically made ‘little effort’ to reach out to the children over the years.[35]
[35] G2/177
In a written submission to the Respondent dated 5 March 2022, the Applicant states that he was assessed by a psychologist at the Brisbane correctional Centre on 2 August 2021 and it was reported that he plans to address his criminogenic needs whilst in custody and reunite with his children in the community upon release.[36]
[36] G2/112
In evidence are messages that the Applicant has exchanged with his children and also Ashleigh Dunbar of child protection Queensland. Ms Dunbar writes that XA and DS had expressed a desire to visit the Applicant in detention.
Text messages between the Applicant and DS indicate they have a close relationship. She and the Applicant talking about movies, television and exchange updates and photographs. DS provides updates on her brother QT and expresses how much she is missing the Applicant. The Applicant promises that if he remains in Australia he will be able to see DS and the other children every week to which she replies, “[y]es I really hope that’s the case”.
Screenshots of the Applicant’s online banking show he was regularly transferring modest amounts of money of between $20 and $200 to XA and DS between March 2021 and January 2023.
Text message between XA and the Applicant demonstrate a close relationship and exchanging photos and daily updates. She indicates a desire to visit the Applicant and preparedness to do what is required to ensure that takes place.
In relations to QT, Anna Wood, a Child, Adolescent and Family Therapist writes in a letter dated 15 February 2023 that:
[QT] is an llyr old boy who currently lives in residential care…[The Applicant] is the primary attachment figure for [QT]. Although [the Applicant] is not [QT’s] biological father, [the Applicant] raised [QT] and his three sisters until his incarceration in 2021.
[QT] has no contact with his biological mother and father. Due to having no extended family that are willing and/or able to care for him, [QT] has since been placed on a long-term guardianship of the state and will reside in residential care until the age of 18 years.
Many children in care think about their families every day. Research shows that continued contact with significant attachment figures has a positive impact on how they see themselves, and their sense of self value and identity.
…
In [QT’s] therapy sessions, he speaks constantly of [the Applicant] and the memories that they created as a family. Since working with [QT] I have advocated for him to gain phone contact with [the Applicant], with the intention of moving to face-to-face contact… since recommencing communication with [the Applicant] there has been a notable improvement in [QT’s] behaviours and general outlook in his home environment.
[the Applicant’s] deportation would mean that [QT] would again be left with limited family connections, which will negatively affect his mental health.
[errors in original]
QT has sent messages through a staff member at the residential facility he currently resides indicating he wished to speak to the Applicant. In a message to the Applicant dated 6 December 2022 Ms Wood writes:
The house manager where [QT] lives noted that he could not stop smiling after his conversation with you and that "it was as though a weight has been lifted from him". Hopefully the wheels will be set in motion for weekly phone calls soon…
Tomorrow night I will attend [QT’s] graduation. I was hoping you could write him a little letter to him, which I can add to a card and present to him on the night. This is the second best option for him to feel your presence there. I would also like to purchase him some lollies from you. What lollies did you guys like to eat together?
It is appropriate to have regard to the age of the children where their best interests are contended to weigh in favour of revocation, however age is only one factor to consider and is be viewed in conjunction with other relevant considerations.[37] The Respondent contends that as XA will attain the age of majority within days of this decision, and as DS is at the upper end of her teenage years their interests should be afforded significantly less weight.[38] I am mindful not ‘double count’ the interests of XA and have substantially taken her interests into account under Primary Consideration 3.
[37] Cooley and Minister for Immigration,Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 4561, [105]-[111]
[38] RSFIC, [51]
This approach is consistent with the reasoning of the Full Court of the Federal Court in XXBN v Minister for Immigration, Migrant Services and Multicultural Affairs, where it was held that ‘where a matter is relevant to two or more mandatory relevant considerations, a decision maker is not usually required to take the matter into account repetitiously.’[39]
[39] [2022] FCAFC 74, [53]
Overall, I am satisfied that it is in the best interests of each of the Applicant’s minor children that the mandatory cancellation of the visa is revoked. The evidence indicates that he has been the sole carer for the children and remained so until the children were taken into care in 2021. The evidence strongly supports a finding that until that time the Applicant was a present and effective parent with a close relationship to each of the children. The correspondence which is in evidence between the Applicant and his two eldest daughters indicates a caring and supportive relationship and that his daughters rely on him for practical and emotional support. The written feedback provided by QT’s therapist demonstrates the Applicant remains a central figure in QT’s life. The Applicant contends he has continued to support his children financially, and the modest sums of money transferred by the Applicant to his children are confirmation of having done so.
The Applicant gave evidence of having maintained regular contact with the children following his arrest. The children are presently in the care of the state and are accommodated separately. Consistent with the Applicant’s contention, there is no evidence of there being other relatives who play an active role in their care or are prepared to do so in the future. The Applicant argued strongly and convincingly that should he leave Australia, the children will be without a family. I also acknowledge the central role of the Applicant in maintaining the children as a family unit including whilst they have been physically separated by their differing care arrangements.
In considering the evidence, I am satisfied that it is in the best interests of each of the Applicant’s children that the cancellation of the Applicant’s visa is revoked and this primary consideration is afforded significant weight in favour of revocation.
PRIMARY CONSIDERATION 5 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
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.
In FYBR v Minister for Home Affairs[40] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 99.
[40] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. The Respondent submits that the Australian community would expect a person convicted of such serious offences would not be permitted to remain in Australia.[41]
[41] RSFIC, [56]
Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weight against revoking the cancellation of the Applicant’s visa.
OTHER RELEVANT CONSIDERATIONS
The legal consequences of the decision under section 501 or 501CA
International non-refoulement obligations will generally not be relevant where the Applicant has not raised such obligations for consideration and the circumstances do not suggest a non-refoulement claim is enlivened.
Extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand in the context of what is generally available to other citizens of that country.
The Applicant’s father, brother and adult son reside in New Zealand.[42] The Applicant has indicated that he has limited contact with his surviving siblings and other members of his extended family and has not visited New Zealand since 2008. He expects his family would ‘totally disown’ him given the nature of his offending.[43]
[42] G2/53
[43] G2/57
The Applicant is of working age and there is no evidence he suffers from any health conditions which would prevent him from establishing himself or maintaining a basic living standard in New Zealand. He has indicated that he suffers from depression and anxiety though it is expected he would be able to access adequate treatment in New Zealand, where medical care and social services are comparable to what is available in Australia. However, I acknowledge that these conditions would likely be exacerbated by the isolation and emotional hardship he would experience if he was removed from Australia and his children.
I am satisfied that the Applicant would experience significant emotional hardship upon his return to New Zealand, but would not be prevented from maintaining basic living standards or access services comparable to other citizens of New Zealand.
Overall, it is appropriate that this consideration be given limited weight in favour of revocation.
CONCLUSION
In determining whether there is another reason to revoke the cancellation of the Applicant’s visa, I am required to balance the considerations which weigh against the Applicant with those considerations which do not.
The Applicant’s offending was abhorrent and very serious, and the protection of the Australian community weighs heavily against his application. The weight afforded to this consideration is tempered by it being an isolated offence, the Applicant’s guilty plea and – with the exception of receiving a $150 fine in 2008 – his not having offended since 1992. The expectations of the Australian community also weigh against the revocation of the mandatory cancellation.
There are four minor children who are affected by this decision. Until his offending, the Applicant was central to maintaining the children together as a family unit. Correspondence between him and his children indicates he will continue to work towards the children being in his and each other’s lives, even in circumstances where he is afforded limited contact. He was the primary carer for each of the children and his continued presence in Australia weighs heavily in favour of revocation. In caring for the children, including those to whom he is not biologically related – the Applicant has made a significant contribution both to the Australian community and the children themselves.
His eldest daughter will soon turn 18 and will no longer be under the protection of the state. With the exception of the Applicant, XA has no adult relatives who she can rely on for support. Even taking into account the nature of the Applicant’s offending, the best interests of the minor children and the strength, nature and duration of his ties to Australia weigh heavily in favour of revocation and are afforded significant weight.
Should he be removed to New Zealand, the Applicant would face emotional hardship, but he would be expected to be able to overcome any practical impediments to re-establishing himself. Therefore, I afford this consideration limited weight in favour of revocation.
On balance, I am satisfied that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The reviewable decision, being the decision of the delegate dated 16 January 2023 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of

............................[Sgd]............................................
Associate
Dated: 18 April 2023

Date(s) of hearing: 20 and 21 March 2023

Date final submissions received: 21 March 2023

Applicant: In person

Solicitors for the Respondent: Mr. K Kim, Clayton Utz

Date(s) of hearing:	20 and 21 March 2023
Date final submissions received:	21 March 2023
Applicant:	In person
Solicitors for the Respondent:	Mr. K Kim, Clayton Utz