VRRQ and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 9
•2 January 2025
VRRQ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 9 (2 January 2025)
Applicant/s: VRRQ
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8389
Tribunal: Senior Member A Mercer
Place:Melbourne
Date:2 January 2025
Decision:The Tribunal affirms the decision under review.
...............................[SGD].........................................
Senior Member A Mercer
Catchwords
MIGRATION – cancellation of Applicant’s permanent Subclass 101 (Child) visa – sexually based offence involving a child – BVR – Direction 110 – Protection of the Australian community
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
HWLJ v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 1039
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40Secondary Materials
Minister for Immigration and Multicultural Affairs (Cth), Direction No 110: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (21 June 2024) Exhibit HB 1 – Hearing Book containing Minister’s and Applicant’s submissions and documents
Statement of Reasons
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)(the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This matter concerns an application for review of a decision by a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class AH Subclass 101 Child visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test and, if he does not, whether there is another reason the cancellation of his visa should be revoked.
BACKGROUND
The Applicant was born in Zimbabwe in August 1998. His parents separated when he was approximately two years old and both re-partnered. The Applicant has two half siblings on either side. The Applicant lived mostly with his mother and stayed with his father during holidays, until his father migrated to Australia in 2008. In approximately 2011, he was sent to live with his uncle and aunt and their family, as both his parents had by then migrated from Zimbabwe. He subsequently attended boarding school.
The Applicant was granted a Class AH Subclass 101 Child visa offshore, and arrived in Australia as the holder of this permanent residence visa on 20 December 2016. Upon his arrival at age 18, he joined his father, step-mother and half sibling in regional Victoria.
In August 2017, the Applicant consented to a safe contact family violence order in relation to his half-brother for a period of six months after an incident involving a physical fight with his half-brother. The Applicant left home (stating he was kicked out) in or about June 2018 after concerns about his behaviour; in particular, his alcohol use. He was then in year 12 but did not complete his secondary schooling.
The Applicant went to Melbourne after leaving regional Victoria. He tried twice more to complete year 12 as an adult, but did not succeed due to his drinking and unstable accommodation.
He commenced a traineeship in a state government department but was dismissed due to his drinking.
On 5 December 2021, in the Victorian Bail and Remand Court, the Applicant received a $1,000 fine for the following offending:[1]
(i)Failure to answer bail;
(ii)2 counts of being drunk in a public place
(iii)Resist police officer
(iv)2 counts of contravening a conduct condition of bail
(v)3 counts of unlawful assault
[1] HB1, G5, Attachment A, National Criminal History check, 21 September 2023.
On 7 June 2022, in the Magistrates’ Court of Victoria, the Applicant received an aggregate sentence of eight months’ imprisonment and an 18-month community corrections order,[2] for the following offending:
(i)4 counts of sexual assault
(ii)Sexual activity directed at a person
(iii)4 counts of committing an indictable offence while on bail
(iv)4 counts of contravening a condition of bail
(v)Burglary
(vi)Theft from a shop
[2] HB1, G5, Attachment C Notice of Order Made in Magistrates Court at Melbourne, 7 June 2022.
He also received a conviction and discharge for two counts of being drunk in a public place.[3]
[3] HB1, G5, Attachment C Notice of Order Made in Magistrates Court at Melbourne, 7 June 2022.
On 25 July 2022, the Applicant’s visa was cancelled pursuant to s 501(3A) of the Act.[4] The Applicant was notified of the cancellation and invited to make representations about revocation. He did so on 12 August 2022.[5]
[4] HB1, G5, Attachment Z, 25 July 2022.
[5] HB1, G5, Attachment D, 12 August 2022.
On 22 January 2024, the Applicant made an application for a Class XA Subclass 866 Protection visa.
A delegate of the Minister refused to grant the Applicant a Class XA Subclass 866 Protection visa on 28 February 2024 on the basis that he was not owed protection by Australia.[6] The Applicant sought review of that decision with the Administrative Appeals Tribunal (as it then was) and on 15 May 2024, the Tribunal (differently constituted) set aside the refusal decision and remitted the matter back to the Department with a direction that the Applicant satisfied s 36(2)(a) of the Act (that is, that he was owed protection by Australia).[7]
[6] HB1, G5, Attachment W, 28 February 2024.
[7] HB1, G5, Attachment W1, 15 May 2024.
On 10 October 2024, a delegate of the respondent decided not to revoke the cancellation of the Applicant’s Class AH Subclass 101 Child visa.[8] The Applicant was notified of this decision on the same date via email to his then representatives, the Asylum Seeker Resource Centre.
[8] HB1, G6 (d), 10 October 2024.
On 19 October 2024, the Applicant applied for review of that decision at the Tribunal.[9]
[9] HB1, G1, 19 October 2024.
On 29 October 2024, the Applicant was refused a Protection visa under s 501(1) of the Act.[10] He did not seek review of that decision with the Tribunal.
[10] HB1, T2, 29 October 2024.
The Applicant currently holds a Bridging R Visa (BVR) granted to him on 7 November 2024, which is subject to a range of conditions.[11]
[11] HB1, T3, 7 November 2024.
The Applicant attended a hearing at the Tribunal on 10 December 2024 but failed to attend a resumed hearing on 11 December 2024. Mr K Sypott, of the Australian Government Solicitor, represented the Minister at the hearings on 10 and 11 December 2024.
On 12 December 2024, the Tribunal wrote to the Applicant by email and Express Post to confirm that Bridging Visa R (BVR) amendments, discussed at the hearing on 10 December 2024, had now come into operation and to request that he provide any additional written submissions he wished to make about these amendments by close of business on 20 December 2024.
On 24 December 2024, the Applicant provided the following response by email (a copy of which he also sent to the Minister’s representative):
…
My submission
(1)The Minister cannot direct me to interact with Zimbabwe, nor can he/she remove me to Zimbabwe.
(2)However, these amendments would allow the Minister to quash my protection finding and I will [sic] forced to facilitate my removal (failure to do so would result in criminal charges, and possibly jail time).
(3)I will be legally exposed to criminal charges and sanctions if a non-revocation decision is made.
(4)The 'third country' would know my criminal record, which why I expect that the third country would refoul me to Zimbabwe, where I will obviously face persecution.
…
LEGISLATIVE FRAMEWORK
Under s 501(6)(e) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:
(e)A court in Australia or a foreign country has:
(i)Convicted the person of one or more sexually based offenses involving a child; or
(ii)Found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …
The transcript of the proceedings of the Magistrates Court of Victoria at Melbourne dated 7 June 2022,[12] records that one of the Applicant’s sexual assault victims was aged 17, which constitutes sexually based offending involving a child (regardless of whether the offence itself has the age of the victim as one of its elements).[13] The Tribunal is therefore satisfied that the Applicant has been convicted of a sexually based offence involving a child, and thus falls within s 501(6)(e)(i).
[12] HB1, G5, Attachment B, 7 June 2022.
[13] HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 (per Abraham J) at [43].
Given this, the Tribunal finds that the Applicant does not pass the character test and his Subclass 101 Child visa is subject to mandatory cancellation.
Accordingly, the Tribunal must determine whether, pursuant to s 501CA(4)(b)(ii), there is:
…
another reason why the original decision should be revoked.
…
THE DIRECTION
Under s 499(1) of the Migration Act 1958 (Cth) (the Act), the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (‘the Direction’) on 21 June 2024. It is expressed to apply to the Administrative Appeals Tribunal (AAT) in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction (as noted above, this now applies to the Administrative Review Tribunal).
Clause 5.2 of Direction 110 provides principles to provide a framework to approach decision making. These are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[14]
[14] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.[15]
[15] Direction 110, cl 7.
THE APPLICANT’S REQUEST FOR REVOCATION OF THE CANCELLATION OF HIS VISA
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
The Applicant made a written request to have the mandatory cancellation of his Subclass 101 (Child) visa revoked on 12 August 2022.[16] In summary, he asked for the cancellation to be revoked on the basis that his sexual offences were linked to his alcohol abuse and dependency problem, and that the Community Corrections Order (CCO) he had received would give him an opportunity to address this, and to participate in offending behaviour problems. He stated that he took responsibility for his crimes but believed a large contributing factor was his alcohol dependence which he was now trying to address through registering for appropriate programs while in jail. He further noted that his ability to undertake appropriate programs had been hampered by the fact that he had been transferred between jails and there were waiting lists in each facility for the relevant programs.[17]
[16] HB1, G5, Attachment D, 12 August 2022.
[17] Ibid.
The Applicant also pointed to his family ties to Australia, noting that his father, step-mother and half-brother were all Australian citizens. He noted that his mother, in Zimbabwe, was unemployed and could not support him, whereas he had more opportunities in Australia. The Applicant said that the mistake he made was abusing alcohol to deal with the feelings of isolation when he migrated to Australia, instead of joining a sports club or undertaking other community activities, but that he was now trying to address this. If he returned to Zimbabwe, he would not have access to alcohol and drug treatment services. He added that he was doing a furniture making course in jail and hoped to become a carpenter if released back into the community.[18]
[18] HB1, Attachment D, 12 August 2022.
At hearing on 10 December 2024, the Applicant resiled from some of the above points, and made some additional ones. In summary, he reiterated that he was genuinely remorseful for his offending and had continued to take steps to address his alcohol use and its underlying causes, via regular appointments while in immigration detention, and since his release with an Alcohol and Other Drugs (AOD) counsellor and a psychologist. He indicated that he had developed effective strategies to minimise his drinking and was unlikely to reoffend because of this, and also because he was subject to regular monitoring and meetings as part of the conditions of his BVR, his CCO, and because he was a registered sex offender, because he was now working five days per week, and because he did not want to return to jail. The Applicant also stated that he had close family ties to Australia (principally his father) and that he feared being removed to Zimbabwe or a safe third country. In relation to Zimbabwe, he stated that he feared being persecuted because he was bisexual (a fear considered well founded by the AAT, differently constituted, in May 2024),[19] and was concerned that he would struggle economically if returned there. In relation to being removed to a third country, the Applicant said that he feared that recently passed legislation indicated he might be removed to Papua New Guinea, or another third country, where he would know no one and have no support, and that he might be removed from that country to Zimbabwe, despite the fact that he had a protection finding in respect of Zimbabwe from the AAT.
[19] HB1, Attachment W1, 15 May 2024.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.[20]
[20] Direction 110, cl 8.
The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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.[21]
[21] Ibid cl 8.1(1).
The Tribunal is directed to 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.[22]
[22] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[23]
[23] Ibid cl 8.1(2).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[24]
Criminal offending
[24] Ibid cl 8.1.1(1)(a).
The Applicant’s convictions are set out in the paragraphs below.
In summary, the offences to which the convictions relate are as follows (this information is drawn from the records of the Victoria Police and the Magistrates Court at Melbourne and was not disputed by the Applicant):
8 August 2019
The Applicant approached a 24 year old woman, who was not known to him, at a tram stop in the Melbourne CBD, and rubbed her back outside her clothing with his left hand for about 30 seconds, then rubbed her upper and mid-thigh area for approximately 10 seconds. When she moved away, the Applicant was spoken to by three Protective Service Officers (PSOs) and arrested for being drunk in a public place.[25]
30 October 2021
[25] HB1, G5, Attachment I2.
The Applicant broke into a supermarket with a liquor store, in Prahran, in the early hours of the morning and stole food and alcohol to the value of approximately $60. He was caught by the police shortly after leaving the premises.[26]
20 January 2022
[26] Ibid, Attachment I8.
The Applicant was drunk at a public music festival in St Kilda while on bail. He was intoxicated and fell into the crowd and caused a disturbance. The Applicant groped a female passerby between her legs on the area of her genitals over her clothing. He subsequently groped another female passerby by reaching up her skirt and touched her skin adjacent to genitals and buttocks and touched her on her underwear. Finally, the Applicant bumped into another female, lingered near her and stared at her, then 5 minutes later, he approached her from behind, wrapped his hand around her right hip and buttocks, moving his hand across the front pelvis area over her clothing. He then walked away. All three females reported these incidents to police at the event. One of the females was aged 17 at the time of the incidents.[27]
2 February 2022
[27] HB1, G5, Attachments I3, I4.
The Applicant was arrested by the police in the early hours of the morning after being found asleep in a 7-11 store in Prahran. Upon being woken up, the police found that the Applicant was drunk, which was in breach of several conditions of his bail, including to abstain from alcohol, being subject to a curfew between 9pm and 5am, and not to commit any offences (including being drunk in public). He was issued with penalty notices.
9 February 2022
The Applicant was located by police on a tram in Preston, initially unconscious and heavily intoxicated, again in breach of his bail conditions. He initially resisted following the orders of the police but then complied. An ambulance was called and he was released into the care of the ambulance officers.[28]
11 February 2022
[28] HB1, G5, Attachment C, 17.
The police were called to an apartment in St Kilda in the early hours of the morning after a female called them and alleged that the Applicant had met her in the CBD and taken a taxi with her back to her apartment complex, where he followed her into a public bathroom in the foyer and exposed himself to her, asking her if she wanted some of his juice. She left the cubicle and slammed the door but took a photo of the Applicant, who ran off. The female in question had an acquired brain injury, was substance affected and used a walking frame.
Subsequently, the Applicant was located by police asleep and drunk in the foyer of a bank building in St Kilda and was arrested as he was again in breach of his bail conditions.[29]
Sentencing remarks, 7 June 2022
[29] Ibid, Attachment I7.
Magistrate Falla observed that the Applicant’s offences were committed when he was heavily intoxicated, and he had made poor decisions and acted reprehensibly, causing many young women to be extremely fearful. She also observed that it appeared likely that without intervention and/or treatment, he would continue to offend, and the risk of this was high if he continued to use alcohol. She convicted and discharged the drunk in a public place offences, and in relation to the other charges, she imposed an aggregate sentence of eight months’ imprisonment, and directed that the applicant serve an 18 month community corrections order with conviction upon his release. He was also directed to undergo assessment treatment for alcohol abuse or dependency, a mental health assessment and treatment, offending behavioural programs and specifically the Specialised Offender Assessment and Treatment Service (SOATS) program and any other programs aimed to reduce the offending behaviour. The Magistrate also placed the Applicant on the Sex Offenders Register for eight years.[30]
[30] HB1, G5, Attachment B, 7 June 2022.
Given that the Applicant’s sexual offending involved a child (aged 17) and a woman with an acquired brain injury, who was visibly disabled as she used a walking frame, the Tribunal regards this offending as very serious, as indicated by paragraphs 8.1.1(1)(a)(ii), (b)(ii) of Direction 110.
The Tribunal considers that this is reflected in the fact that the Magistrate imposed a custodial sentence on the Applicant for the offences, albeit a relatively short one of eight months, and imposed an 18 month CCO and placed the Applicant on the Sex Offenders Register for eight years.[31]
[31] HB1, G5, Attachment C; A6 and A24.
There was no direct evidence before the Tribunal regarding the impact of the offending on any victims, such as victim impact statements. In an undated statement to the Department,[32] the Applicant indicated that he was not aware of any victim impact statements, nor why there were none.
[32] HB1, G5, Attachment H2, pp 128–136.
However, the Tribunal notes the remarks of the sentencing Magistrate, who stated that the Applicant’s actions would have caused his victims to feel fearful and unsafe. In his written statements and his oral evidence at hearing, the Applicant acknowledged this and expressed remorse for the fear, distress and trauma that his actions would have caused his victims.
The Tribunal notes that the Applicant was also convicted of offences relating to breaching bail conditions, being drunk in a public place, and stealing. While not condoning these offences, it does not regard them as being as serious as the sexual offences for which the Applicant was convicted.
It is not disputed that the Applicant committed multiple sexual (and other) offences between 2019 and 2022, a period during which he was drinking heavily and regularly. There is, however, in the Tribunal’s view, no trend of increasing seriousness in the Applicant’s offending. Moreover, the Tribunal acknowledges that the Applicant has not offended since his release from immigration detention approximately two months ago.
There is no indication that the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending. In fact, the Applicant provided the Department (and the Tribunal) with considerable information about his offending, his sentence and the various programs with which he has been involved.
There is no indication that the Applicant has reoffended after being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending to their migration status.
The above factors, and the Applicant’s acknowledgement of the likely effect of his offending on his victims, weigh somewhat in favour of not cancelling the Applicant’s visa.
However, overall, the Tribunal considers the sexual offences for which the Applicant was convicted to be very serious and this weighs in favour of not revoking the cancellation of his Subclass 101 (Child) visa.
OTHER CONDUCT
The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
Apart from the criminal offences discussed above, there is no evidence of serious behaviour or conduct of concern in relation to the applicant, apart from the references in Ms Bovenkerk’s report,[33] confirmed by the Applicant at hearing, that he took cash from his father and then step-mother, as well as taking his then step-mother’s anti-epilepsy medication on several occasions. He also had a physical fight with his half-brother which resulted in a 6 month safe contact family violence order against him in mid-2017 but no conviction. While not condoning these incidents, the Tribunal does not consider them to be serious character concerns, given the Applicant’s relatively young age, the fact that he received a diversion, and the confined nature of this conduct, which ceased when he left the family home.
RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE NON-CITIZEN COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT
[33] HB1, Attachment U, p 498, paragraph 105.
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[34]
[34] The Direction 110, cl 8.1.2(1), (2)(a)–(b).
(1)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.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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 requires an assessment of the nature of the harm, should the Applicant engage in further criminal or other serious conduct.[35] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[36] There is no statutory constraint on the way that risk is assessed by the decision-maker, other than the requirement of a rational and probative basis for the assessment.[37]
[35] Direction 110, cl 8.1.2(2)(a).
[36] Ibid cl 8.1.2(2)(b).
[37] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[38]
[38] Direction 110, cl 8.1.2(2)(a).
The Tribunal considers that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very serious, given his past offending includes sex offences involving (amongst others) a child and a disabled person. This weighs in favour of not revoking the cancellation of his Subclass 101 (Child) visa.
Likelihood of the non-citizen engaging in further criminal or serious conduct
(a)Rehabilitation
The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence.
Prior to the hearing, the Applicant provided evidence of:
·payments to a psychologist Ms Alessia Mattia for sessions on 6 October 2023, 20 October 2023, 17 November 2023, 16 February 2024, 1 March 2024, 5 April 2024, 10 April 2024, 24 April 2024;[39]
·copy of his relapse prevention plan, developed with Alcohol and Other Drugs (AOD) counsellor with Access Health & Community, May 2024;[40]
·letter from Hayden Witting, Youth AOD Clinician at Access Health & Community, 11 June 2024, stating that the Applicant first connected with the service in December 2022 and had maintained regular appointments, initially weekly and then gradually shifting to monthly as his treatment progressed. As a part of his treatment and assessment, the Applicant had completed a total of 41 sessions, in which he had explored his patterns of substance abuse, craving identification management skills, emotion regulation and motivation building strategies. Mr Witting states that the Applicant told him that he had not consumed alcohol since February 2022 and strongly wished to learn to control his alcohol consumption in the future. Mr Witting states that in his opinion, the Applicant had been committed to engaging with the service and developing himself in his recovery from alcohol abuse. The Applicant is stated to be open, willing and talkative in his sessions and had expressed remorse for his drinking behaviour and its impacts on himself, his family and the wider community. Mr Witting states that the Applicant’s treatment plan includes monthly telehealth sessions, with a focus on craving management, resilience and goal-oriented life skills.[41]
[39] HB1, G5, Attachment M; A17.
[40] HB1, Attachment A15.
[41] Ibid, Attachment A18.
The Applicant also provided a copy of his Community Corrections Order assessment and recommendations, dated 20 May 2022.[42] This indicates that the Applicant was assessed as suitable for an 18 month CCO to commence on release from prison, with recommended conditions of supervision, treatment and rehabilitation targeting alcohol abuse and/or dependency, monitoring for substance abuse to prevent relapse, an offence-specific program through the Forensic Intervention Service (FIS) and a mental health assessment by Forensicare.
[42] Ibid, Attachment A8.
The Applicant provided a Forensicare Mental Health Community Corrections Screening Program report by Senior Social Worker Amy Meiklejohn,[43] 20 May 2022, in which Ms Meiklejohn refers to a Court Integrated Services Program (CISP) report by Gradey Moyle dated 21 January 2022, in which the Applicant self-reported a history of depression and anxiety diagnosed by a GP in 2019, although he had thus far been unable to access psychological treatment due to financial difficulties. She further noted that the Applicant was not presently receiving mental health treatment in custody, but had indicated willingness to engage in it and to attend alcohol rehabilitation and that he had been assessed for placement in Odyssey House. Ms Meiklejohn observed that the Applicant would be at risk of a return to alcohol use in the absence of treatment, and should he continue to be isolated and suffer from poor mental health, he would be likely to relapse into problematic alcohol use. She concluded that the Applicant had a mild mental health problem, required ongoing mental health care which should be a condition of his CCO.
[43] Ibid, Attachment I.
Also provided by the Applicant, was a report dated 9 February 2024 by a forensic psychologist in private practice, Ms Marlese Bovenkerk.[44] Ms Bovenkerk notes that the Applicant self-referred himself for assessment and participated in two appointments over four hours. In addition, Ms Bovenkerk referred to a range of other documents provided by the Applicant, including support letters from other services, documents arising from his criminal convictions (including charges, sentencing remarks and assessment for a CCO), notice of visa cancellation from the Department, the Applicant’s Ambulance Victoria records, and information from various sources on the human rights situation in Zimbabwe for the LGBTI community.
[44] HB1, Attachment A1.
Amongst other things, Ms Bovenkerk noted that the Applicant disclosed experiencing sexual abuse as a young child but that he indicated that he did not know how much it had affected him. She further noted that by adolescence, he had already begun to isolate himself to not allow anyone to get close to him, and that he had not had any long term intimate relationships with people of either sex to date, although he had come to realise that he was bisexual. She further noted that his lack of parental contact had affected him and his ability to form relationships.
Ms Bovenkerk stated that the Applicant told her that he had previously been diagnosed with anxiety and depression by a GP. She noted that he had sought out counselling while in jail and in immigration detention.
Ms Bovenkerk noted that the Applicant reported a longstanding history of alcohol abuse that had largely begun as a means of gaining confidence in social situations (especially those involving girls and women). While he had experimented with various other drugs, he was not dependent on them and his main problem related to his alcohol abuse. She noted that the Applicant was engaged in AOD counselling on an ongoing basis to address this.
In tests that she conducted, she concluded that the Applicant ‘displayed improving insight and judgment into his mental health and his behaviour, demonstrating capacity to reflect on his past circumstances, which contributed to his poor decision-making in the context of limited coping strategies and alcohol intoxication’.
Specifically, she assessed that the Applicant was suffering from mild depressive symptoms which appeared more related to his situation and adjustment issues. She further assessed that the Applicant displayed moderate anxiety symptoms, and also displayed some characteristics of Borderline Personality Disorder; namely, schizoid, avoidant, dependent and anti-social characteristics. She considered that there was little evidence to indicate that the Applicant had previously experienced manic or hypomanic episodes typically associated with Bi-Polar disorder. She concluded that ‘overall… [the Applicant’s]… profile displayed evidence of a number of personality disturbances and clinical symptoms related to anxiety, depression, and trauma, which would be impacting his mood and functioning with high levels of alcohol abuse to manage his distress’.
Testing also indicated that there was a very high probability that the Applicant has ADHD but it had not been definitively confirmed.
Ms Bovenkerk also noted that due to his history of alcohol-related blackouts, the Applicant had been referred for further assessment related to a potential Acquired Brain Injury (ABI) but failed to attend that appointment.
In relation to a risk assessment of the applicant, Ms Bovenkerk considered that overall, taking into account a range of factors set out for risk assessment, the Applicant was at moderate risk of sexual offence recidivism, a risk that would increase if he were to relapse into alcohol use and disengage from his treatment providers. Risk factors included his difficulties with ‘psychological and social adjustment domains, including his significant intimacy deficits, problems within his interpersonal relationships, poor coping skills, and long-term unemployment. Collectively, these factors are considered to increase his vulnerability towards sexual reoffending’. In contrast, protective factors were considered to include ‘the absence of sexual deviancy, the applicant’s willingness and commitment to engage with mental health and alcohol treatment, his current abstinence from alcohol, and support from his father, and lack of association with antisocial peers’. She noted that if he were able to participate in offence-specific treatment, this would also likely further mitigate the applicant’s risk profile.
Ms Bovenkerk found that it would be premature to opine that the Applicant was fully rehabilitated given he had remained in immigration detention and had not yet had the opportunity outside of a controlled environment to prove his ongoing abstinence from alcohol, which was a significant contributor to his offending. She noted that the Applicant also presented as a ‘psychologically complex individual, with his personality features and associated interpersonal style requiring long-term engagement in treatment to improve his general functioning’ [at paragraph 215].
Of particular note, Ms Bovenkerk stated at paragraph 223 of her report that the Applicant indicated that his father would support him but that the Applicant would not be able to reside with him upon his release from detention as he was a registered sex offender and his father was a National Disability Insurance Scheme (NDIS) provider, and this was pertinent given that the Applicant previously offended during a period when he experienced ‘unstable psychosocial circumstances.’
She concluded that the Applicant would benefit from ongoing psychological treatment of his mental health, including addressing his symptoms of depression, anxiety and trauma, noting that he was continuing to see a forensic psychologist and an AOD counsellor. She recommended that he be screened for possible alcohol related brain impairment. She noted that the Applicant had ‘shown initiative and commitment to engaging in treatment whilst detained in immigration detention and with ongoing treatment per the above recommendations, his psychiatric conditions would improve and his risks continue to mitigate as he develops appropriate skills to manage his symptoms and abstain from alcohol. [He] acknowledges that wrongfulness of his behaviour and is motivated to address his criminogenic risk factors in order to reform himself and become a productive member of the Australian community, where he is free to openly express his sexual identity’ [at paragraph 231].
The Applicant also provided a report dated 1 July 2024,[45] with a supplementary report dated 16 July 2024,[46] from his psychologist Ms Mattia, who stated that the Applicant requested a report on 17 June 2024, having first engaged with the service in October 2023 and having attended a total of ten sessions by videoconference on a mostly fortnightly basis, the latest being 24 April 2024. She stated that he ‘reported both intrinsic and extrinsic motivation for engaging in treatment, noting he took full responsibility for his offending behaviour and was motivated to utilise sessions to increase his self-esteem and reduce his self-reported social anxiety symptoms. He stated by doing so, he would likely be successful in reducing his need for alcohol use in future to manage such symptomatology and thereby reduce his risk of reoffending…’ [para 16].
[45] HB1, Attachment A2.
[46] Ibid, Attachment A3.
Ms Mattia further noted that as sessions progressed, the Applicant appeared to gain insight into the risk factors associated with his alcohol use and consequently his offending behaviour; however, he was observed to struggle in feeling confident he could manage such risk factors in future, outside his present controlled environment of detention [at paragraph 17].
Ms Mattia tested the Applicant upon intake and assessed him as suffering from mild depression, anxiety and stress, plus low mood most likely related to his present circumstances [at paragraph 21]. He scored low for alcohol and drug use, but this was based on his enforced abstinence for 12 months in detention and/or jail.
Ms Mattia expressed that the Applicant’s progression in treatment was considered to be positive, but that further treatment was warranted in order to continue exploring his future goals and ensuring that his risk of alcohol use and reoffending were both reduced [at paragraph 25].
Ms Mattia set out the family and migration history of the Applicant, noting his difficulties after his parents separated and he lived with his uncle in Zimbabwe, then his adjustment difficulties in regional Victoria on reuniting with his father, step-mother and half-brother in Australia, and his discovery of alcohol as a way of dealing with these difficult emotional issues, leading to dropping out of school, being thrown out of home and moving to Melbourne where he had unstable accommodation, intermittent low level work and continued to drink heavily and attend nightclubs to try to pick up women [paragraphs 27 to 38]. She also noted that the Applicant had come to realise, and act upon, the fact that he was bisexual, but was conflicted about this due to his fear that it would not be accepted in his home country and/or by his family [paragraph 40].
Ms Mattia further noted that the Applicant felt that his father, in particular, had placed high expectations on him, that he struggled with perfectionism, and that using alcohol was also a relief from this [paragraphs 43-44].
She indicated that treatment of the Applicant had included cognitive behaviour therapy (CBT), Acceptance and Commitment Therapy (ACT), substance abuse intervention and offence-specific psychoeducation and discussion regarding consent and empathy [paragraphs 45-46]. Further long-term goals were identified as joining social clubs, sporting clubs, continuing his education, gaining employment and forming a meaningful intimate relationship [paragraph 49].
Ms Mattia found that the Applicant engaged meaningfully in discussions concerning consent and victim empathy [paragraph 51]. Moreover, he specifically talked about the effect his offending likely had on his victims, acknowledging that they may have experienced fear, have trust issues and/or PTSD [paragraph 52].
She concluded that the Applicant presented with symptoms of depression, anxiety, alcohol use disorder and a personality disorder, with several vulnerable personality traits (including avoidant, borderline and antisocial).
She recommended that he would benefit from continued engagement in psychological intervention to assist him to manage his symptomatology and treatment goals, and would benefit from review by a psychiatrist in relation to his mental health conditions. She also stated that he would benefit from monitoring and ongoing psychological intervention upon release into the community, in order to be supported to appropriately implement the strategies he had learned [paragraph 66].
In her supplementary report of 16 July 2024, Ms Mattia clarified that the Applicant indicated that he would shortly cease treatment, but that this was said in the context that he understood that if released on a CCO, he would attend another psychologist, not that he would cease treatment altogether.
In two undated written statements, the Applicant identified the underlying issue behind his alcohol abuse as being social isolation, social anxiety, shyness, depression, anxiety and loneliness.[47] He indicated that he was ashamed and remorseful for his offending and wanted to address his alcohol use, offending behaviour, and the underlying causes of both, to avoid reoffending and lead a more productive and positive life.[48]
[47] HB1, Attachment H2, p 129, and Attachment I9, p 182.
[48] Ibid, Attachment H2, p 131.
At hearing, the Applicant gave evidence that he was in jail for seven months, having had his sentence shortened by one month as he had spent a period in isolation. He was originally taken into custody in February 2022, pleaded guilty and did not seek bail while awaiting sentencing. He was released from jail in September 2022 and then immediately taken into immigration detention. He was released from immigration detention on 10 October 2024 and was issued a BVR, which was subject to a range of conditions, including an overnight curfew and a monitoring ankle bracelet.[49] Subsequently, he was issued with a new BVR on 7 November 2024, which was also subject to a range of conditions, but which no longer imposed a curfew or a monitoring ankle bracelet on him.[50]
[49] Respondent Tender Bundle, Attachment T2.
[50] HB1, Attachment T3.
The Applicant’s oral evidence at hearing was that while in jail, he tried to access programs or courses to address his sexual offending and his alcohol use, but that it was difficult to complete such courses or programs as he was moved between different facilities during his sentence, and his sentence was relatively brief and there were generally waiting lists to participate in these courses and programs.
The Tribunal accepts that when the Applicant entered immigration detention, he took the initiative to make contact with an AOD counsellor and a psychologist to address his offending and his drinking, and to attempt to address their underlying causes and to minimise his chances of lapsing into alcohol abuse again and/or reoffending. The Applicant provided documentary evidence, including reports, of his treatment with his AOD counsellor, Mr Witting, and his two psychologists, Ms Bovenkerk (seen for two extended sessions) and Ms Mattia (seen on an ongoing basis). They all refer to the Applicant’s willingness to engage with them and to address his various issues. As noted above, however, Ms Bovenkerk identified that the Applicant had a moderate risk of reoffending and that this would be higher still if he used alcohol and/or found himself in unstable and/or stressful circumstances (such as being in insecure accommodation and/or employment).
At hearing, the Applicant told the Tribunal that since being released from immigration detention on 10 October 2024, he had commenced his 18 month CCO. He had met with his supervisor and had been linked up with a new AOD counsellor from the Australian Community Support Organisation (ACSO), whom he saw weekly. The Applicant said that he was not able to continue to see his former AOD counsellor, Mr Witting, as the service for whom Mr Witting worked was for people 25 and under, and he was now 26 years old. The Applicant further indicated that he was waiting to be linked to a psychologist through the CCO, which would either be Ms Mattia or a new psychologist. The Applicant said that his father had assisted him to pay for his sessions with Ms Mattia while he was in immigration detention and that it was expensive to continue to pay a psychologist in private practice, so he was unsure whether he would continue to see Ms Mattia or instead see another less expensive psychologist. However, he indicated that it was his intention to continue to see a psychologist to address his personal issues and to minimise his risk of relapsing into alcohol abuse and/or reoffending. The Applicant clarified that his last session with Ms Mattia was in September 2024 shortly before his release from immigration detention.
In cross-examination, the Applicant gave evidence that he did not drink while in jail or in immigration detention but that since being released from immigration detention, he had been drinking again on weekends. He estimated that he would have five or six standard drinks in a session, usually at a bar or nightclub, and stated that he generally stuck to beer (rather than cheap wine, which he had previously drunk when his drinking was at its most severe). When questioned about his confidence that he would not relapse into heavy alcohol use again, and thus increase his risk of reoffending, the Applicant said that he had considered remaining completely abstinent upon his release from immigration detention but that his counsellors to date had not suggested that he must do so. However, it was something that they planned to discuss in future. He said that he had focussed on developing strategies to manage his drinking (being the relapse prevention plan and ongoing counselling) and so far, he had been able to avoid drinking heavily. The Applicant told the Tribunal that one of the issues he had been addressing was ‘black and white’ thinking; that is, thinking that he was either a heavy drinker or could not drink at all, while the counsellors had effectively told him not to put such pressure on himself, and that if he did drink, he needed to use the strategies he had discussed with them to manage this safely.
In response to questions about the fact that alcohol use and attending bars and nightclubs had been listed as triggers by Ms Bovenkerk in her report, and in his relapse prevention plan developed with Mr Witting, the Applicant maintained that so far, he was confident that he could control his drinking, and that he was not attending bars or nightclubs with the primary aim of drinking heavily to pick up women, but to socialise and to dance.
The Applicant also indicated that he had a strong incentive not to relapse into alcoholism as he did not wish to return to jail, and because he was currently working five days per week on a casual basis, and he hoped to soon secure a room in a rental property. He confirmed that he was currently living at a motel in a Melbourne suburb but that he had been informed by his CCO supervisor that he was eligible for a grant to cover the bond and first month of rent if he found suitable rental accommodation. The Applicant confirmed Ms Bovenkerk’s assertion that he was unable to live with his father because his father was an NDIS provider and could not have someone on the Sex Offenders Register live in his house.
The Applicant said that he was subject to considerable monitoring as a result of his BVR conditions (which included daily telephone reporting to the Department), his CCO (which included weekly appointments with his supervisor and his AOD counsellor, and which would in the near future include regular appointments with a psychologist) and being on the Sex Offenders Register for eight years (including not being able to live or work with children). The conditions of his BVR, CCO and Sex Offenders Register status required him to inform the relevant authorities of any change of address.
Overall, the Tribunal considers that the Applicant has made genuine efforts while in jail and immigration detention to address his personal issues, notably, but not only, his alcohol use, and that he did not drink for approximately two years while in jail and immigration detention. He has undertaken AOD and broader psychological counselling on a regular basis, at his own expense, and is continuing to do so (noting that he is currently waiting to be linked to a psychologist via his CCO service) and the reports from his treating professionals indicate that the Applicant is actively participating in his treatment, has developed insight into his behaviours, and that he is trying to both address the underlying causes and to implement strategies to minimise the chances of relapsing into alcoholism and/or reoffending. The Tribunal accepts that the Applicant is sincere about this. The Tribunal gives these efforts, and the Applicant’s relatively young age (indicating that he has the potential for change) some weight in favour of revoking the cancellation of his Subclass 101 (Child) visa.
However, the Tribunal is concerned about the durability of the Applicant’s rehabilitation efforts, for the following reasons:
·he has only been out of immigration detention for approximately two months, which is a short period on which to assess the extent to which he does or does not face a risk of relapse and therefore a risk of reoffending;
·he has chosen to drink again. Moreover, he has chosen to do so in circumstances which have been identified as being stressors which could or would contribute to risky drinking and offending in the past, including unstable accommodation and lack of emotional support from family, friends and/or a partner;
·he has had a number of failed attempts to give up drinking heavily in the past. Drinking heavily is acknowledged by the Applicant, and the professionals who have interacted with him, to be a major cause of his offending in the past.
While acknowledging that there is nothing illegal about the Applicant’s current level of alcohol use, it is nevertheless of concern to the Tribunal that he has resumed drinking given his previous problems with heavy drinking and its link to his offending.
While the Tribunal acknowledges the sincere efforts made by the Applicant to seek treatment, his belief that he now has effective strategies to manage his drinking, and the stabilising factor of his current employment five days a week, it remains concerned that the Applicant has the potential to resume heavy drinking again (particularly given the stress of his uncertain immigration status and his limited support from family or friends), which would elevate his risk of reoffending beyond the moderate risk identified by Ms Bovenkerk in her February 2024. The Tribunal also gives weight to Ms Bovenkerk’s observation that this risk was heightened by alcohol use (not only by alcohol abuse) (Tribunal’s emphasis in italics).
The Tribunal considers that the Applicant is at moderate risk of reoffending and at higher risk of doing so if he resumes drinking heavily. The Tribunal gives this factor weight in favour of not revoking the cancellation of his Subclass 101 (Child) visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.[51]
[51] Direction 110, cl 8.2(1).
While the 6 month safe contact family violence order that the Applicant agreed to in mid-2017 (referred to at paragraph 61 above) technically constitutes family violence, the Tribunal does not give it weight in favour of not revoking the cancellation as the physical fight between the Applicant and his half-brother appears to be a one-off incident which occurred when the Applicant was approximately 19 years old.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
The Applicant’s father resides in Melbourne, Australia and is an Australian citizen. The Tribunal accepts that after a period of estrangement, the Applicant and his father have re-established contact and that the Applicant’s father has provided financial support to the applicant while he was in detention. The Applicant’s father also provided a statutory declaration in support of the Applicant’s visa cancellation being revoked. The Tribunal accepts that it would cause emotional distress to the Applicant’s father if the applicant’s visa cancellation was not revoked, although this might be somewhat mitigated by the fact that it is not clear when or if the Applicant will be removed from Australia and that he currently has the right to reside here as the holder of a BVR.
Even if the Applicant were to be removed from Australia, the Tribunal considers that his father would be able to maintain contact by such methods as telephone, messaging applications and video conferencing, methods which are commonly used now by family members in different countries or locations. There is no suggestion that the Applicant’s father was dependent on the Applicant for care or financial support, and the Tribunal notes that the Applicant’s father has a current partner and another son resident in Australia and would therefore not be without family support if the Applicant was forced to leave Australia.
The Tribunal accepts that the Applicant also has an Australian citizen step-mother, his father’s current wife. On the Applicant’s own evidence at hearing, he is not particularly close to her. The Applicant also has a former step-mother and a younger half-brother (now aged approximately 20) who reside in Perth, both of whom are Australian citizens, and with whom the Applicant does not have contact.
Overall, the Tribunal considers that the adverse effect on the Applicant’s father if the Applicant’s visa cancellation is not revoked weighs in favour of revoking that cancellation.
Other ties with to the Australian community
As noted above, the Applicant arrived in Australia in 2016 at the age of 18. He is now 26 years old and has not left Australia since his arrival.
On his own evidence, the Applicant does not have close friends in Australia and does not have a partner or any children here. Apart from the gym, he is not a member of any sporting or cultural groups or any religious organisation. The Applicant’s secondary education is incomplete due to his issues with alcohol and unstable accommodation, although he hopes to undertake a Certificate IV in Construction and an online IT degree in future. The Applicant’s employment history in Australia is sporadic and minimal, although the Tribunal accepts that he has been working regularly on a casual basis through an agency in unskilled labouring and picking and packing jobs since being released from immigration detention approximately two months ago. The Applicant has been in receipt of Centrelink Special Benefit payments and these will be adjusted or suspended depending on his reported employment income.
As noted above, the Applicant presently lives in a motel but hopes to find a room to rent with the assistance of his CCO service provider.
As also noted above, the Applicant arrived in Australia as an adult in 2016, albeit a young adult, aged 18. His problematic drinking started in 2017 and escalated from that time, and was the main contributing factor to his offending between 2019 and 2022. There is little in the way of countervailing contribution to the Australian community to weigh against these factors.
Overall, the Tribunal considers that while the Applicant has been in Australia for a reasonably long period (some eight years), he does not have strong personal ties here, apart from his father. Nor does he have strong employment ties to Australia. The Tribunal also finds that the Applicant’s offending started quite soon after he moved to Australia (within three years of his arrival as a young adult).
The Tribunal considers that these factors weigh in favour of not revoking the cancellation of his Subclass 101 (Child) visa.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
The Tribunal is satisfied that there are no minor children of the Applicant, or related to the applicant, in Australia who would be affected by his visa cancellation. It finds that this factor is neutral in considering whether or not to revoke the visa cancellation.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[52]
[52] Direction 110, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[53]
[53] Direction 110, cl 8.5(1).
In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In applying these principles, and given the fact that several of the Applicant’s crimes were against young women (one aged 17, so a child, and one disabled, so vulnerable), the Tribunal considers that the Australian community would expect the Applicant’s visa to be cancelled, and finds this consideration weighs in favour of not revoking the cancellation.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[54]
[54] Ibid, cl 9.1.
There are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·unlawful status;
·the likelihood of becoming subject to detention and/or removal;[55]
·refusal of other visa applications and cancellation of other visas;[56]
·a prohibition on applying for other visas;[57] and
·periods of exclusion and special return criteria may apply.[58]
[55] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.
[56] Ibid s 501F.
[57] Ibid s 501E.
[58] Ibid s 503, Special Return Criteria (SRC) 5001.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[59] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[60]
[59] Ibid s 15.
[60] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]–[122].
The Tribunal is satisfied that the Applicant would normally be subject to removal as soon as practicable under s 198, and to be detained under s 189 until then. However, the Applicant is subject to a protection finding pursuant to s 197C by virtue of the earlier Administrative Appeals Tribunal (as it then was, and differently constituted) decision 2403701 of 15 May 2024, so cannot be removed to Zimbabwe.
As a result of the recent High Court case of NZYQ v MICMA [2023] HCA 37, the Applicant cannot be detained where there is ‘no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future at the time of the Tribunal’s decision’, at [54]. As noted above, the Applicant was granted a BVR on 10 October 2024, which was subject to a range of conditions, including an overnight curfew and the requirement to wear a monitoring ankle bracelet. The Applicant was granted a new BVR on 7 November 2024, which does not have the curfew or monitoring bracelet conditions. However, it requires the Applicant to report daily to the Department by telephone, notify of changes to his address, employment and of any material changes to his circumstances, restricts his employment in certain sectors, forbids him from living or working with children or contacting any of his victims, and requires him to (in summary) cooperate with any efforts by the Australian government to remove him from Australia.
The Tribunal is satisfied that the Migration Amendment Act 2024 (Cth), passed on 29 November 2024, and came into operation on 5 December 2024. In summary, s 76AAA of the new legislation provides for a person’s BVR to cease if:
·that person has permission to enter and reside in a foreign country;
·that foreign country is a party to third country reception arrangements with Australia; and
·the person:
odoes not have a protection visa application on foot that has not been finally determined; or
othe person cannot be removed to that country because of a protection finding in relation to that country; or
othe person is under 18.
This means that where a protection finding has been made in respect of a person for a particular country, and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country. Other provisions in the Migration Amendment Act require the person to cooperate with steps for their removal to a foreign country and the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (which came into operation on 4 December 2024) creates a criminal offence if the person does not cooperate with these steps.
At hearing and in his post hearing submissions, the Applicant expressed concern that he would be removed to a ‘safe third country’ such as Papua New Guinea, where he knew no one and would have no support. He also feared that he could be removed from any safe third country to Zimbabwe, despite the fact that he has a protection finding in relation to Zimbabwe made in Australia by the AAT (as it then was).
The Tribunal must make its assessment of the legal effect of not revoking the cancellation of the Applicant’s Subclass 101 (Child) visa at the time of this decision. At this time, the amending Acts have now commenced; however, there is no evidence before the Tribunal as to what (if any) arrangements have been made with third party countries, it is unknown what countries might be party to any such arrangements, and it is unknown if the Minister would seek permission for the Applicant to enter and reside in any other country. No submissions about these matters were made by the Minister.
Nevertheless, it is clear that it is the intention of the Australian government to enter into safe third country arrangements and to remove non-citizens with criminal convictions who fail the character test, including BVR holders, and the Applicant falls within this cohort. While it cannot be said that it is clear when or if the Applicant will be removed from Australia to a safe third country, it is now possible that he may be. The Applicant expressed considerable concern about this possibility, and the Tribunal accepts that if he were to be removed to a safe third country, he would have no family support (as his family is either in Australia, Zimbabwe, South Africa or the United Kingdom, none of which are likely to enter into safe third country arrangements with Australia), and that where he may not speak the language or have any obvious means to support himself (particularly since he has had a limited education and work history in Zimbabwe and Australia). It is also not known whether the Applicant, who is bisexual, might be removed to a country where being a member of the LGBTI community could expose him to discrimination or harm, although the Tribunal considers this to be unlikely as any third country would have to be assessed as ‘safe’ in order for the Applicant to be removed.
The Tribunal accepts that while not revoking the cancellation of the Applicant’s visa will not result in his detention, and that currently he will remain in the community as the holder of a BVR, it is now possible that he could be removed to a third country at some time in the future. The Tribunal further accepts that this uncertainty would have an adverse psychological effect on the Applicant, in a situation where he already has vulnerable mental health.
Another adverse consequence of the cancellation not being revoked is that there are significant restrictions on the Applicant being able to apply for another visa. As his Subclass 866 Protection visa has been refused, and he did not seek review of that decision, he is now subject to s 48A of the Act and would not be able to apply for another protection visa while in the migration zone (Australia) unless the Minister considers that it is in the public interest to lift the bar under s 48B. Moreover, an application for any visa other than a protection visa would be subject to s 501E – the Applicant could not make an application in the migration zone for any visa, other than a BVR, as prescribed by r 2.12AA of the Regulations. The Applicant would have to be invited to make such an application.
These factors weigh in favour of revoking the cancellation of the Applicant’s visa.
In relation to the legal effect of the Applicant remaining in Australia on a BVR in the meantime, the Tribunal notes that a BVR allows the visa holder to remain in Australia and ceases on the Minister giving notice that the Minister is satisfied that the visa holder’s removal from Australia is reasonably practicable, or the holder has breached a condition to which the visa is subject. In addition, failing to comply with the conditions on the BVR may result in the Applicant committing offences under the Act, and, if convicted, the Court must impose a sentence of imprisonment of at least 12 months (s 76DA).
The Applicant’s most recent BVR granted 7 November 2024 contains the same conditions as the BVR of 10 October 2024, with several additional conditions. In total, the following conditions apply:
·8303 – no violent or disruptive activities
·8513 – notify of residential address
·8514 – no material changes to the conditions in relation to which the BVR was granted
·8541 – must assist with removal
·8542 – report for removal from Australia
·8543 – facilitate removal from Australia
·8551 – obtain approval for certain occupations (those involving chemicals of security concern, aviation, maritime or facilities that handle security-sensitive biological agents)
·8552 – notify change in employment details
·8553 – must not be involved in activities prejudicial to security
·8554 – must not acquire specified goods (weapons, explosives)
·8555 – obtain approval before undertaking specified activities
·8556 – must not communicate with specified entities or organisations
·8560 – obtain approval to acquire chemicals of security concern8561 – must attend interview if directed
·8562 – must not take up specified employment
·8563 – must not undertake specified activities
·8612 - notify details of persons who reside with the holder
·8614 – notify of travel
·8615 – notify of associations and memberships
·8616 - notify contact with certain individuals or organisations
·8622 – must not work with minors
·8623 – must not approach school or childcare centre
·8624 – must not contact victim or victim family member
·8625 – notify changes in personal details
·8626 – notify of changes in online details
The conditions relating to a curfew and electronic monitoring that were on the Applicant’s original BVR have been removed (presumably as a result of the High Court decision in YBFZ v MICMA [2024] HCA 40); however, breaches of particular conditions still constitute offences under various provisions of the Migration Act and/or may result in cancellation of the Applicant’s BVR (for instance, failure to report as directed without a reasonable excuse may result in a penalty of five years imprisonment or 300 penalty units, or both, as does working in a prohibited field, breaching the condition not to approach a school or daycare centre, and contacting any victims of the Applicant’s offences).
The Tribunal notes that the curfew and monitoring conditions have been reintroduced by the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) (‘the BVR Amendments’) which applied from 10.13am on 7 November 2024. The BVR Amendments require conditions 8621 (monitoring device), 8617 (receipt and transfer of sums over $10,000), 8618 (incurring debts of over $10,000 or becoming bankrupt) and 8620 (curfew) to be imposed where:
·the visa is granted because there is no real prospect of the person being removed; and
·the Minister is satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; and
·the imposition of these conditions is reasonably necessary and reasonably appropriate and adapted for the purposes of protecting any part of the Australian community from serious harm by addressing that substantial risk.
The Tribunal notes that a BVR holder can seek review of imposition of these conditions from the Minister, and has Tribunal review rights as well.[61] There is no indication that these conditions will in fact be imposed on the Applicant’s BVR, and even if they are, he will have the right to seek review of any such decision.
[61] S 76E of the Act and r 2.25AD of the Migration Regulations 1994 (Cth).
In practical terms, the Applicant’s BVR permits him to live in the community, does specifically not prevent him from working (except in certain fields or with certain materials) and he has access to health care via his health care and Medicare cards. The Tribunal acknowledges that holding a bridging visa of any kind (including a BVR) may be a deterrent to some employers, as it is not a substantive visa, but it considers that the Applicant’s criminal record also affects his employability, and that in any case, he has been able to find at least casual employment since being released from immigration detention.
At hearing, the Applicant said that he found the daily reporting condition to be quite oppressive. However, the Tribunal notes that he is able to report by telephone, and it has not prevented him from working five days per week on a regular basis. It further notes that the Applicant is subject to similar reporting or contact requirements as part of the terms of his CCO and because he is a registered sex offender.
However, the Tribunal acknowledges that the loss of Australian permanent residence is the loss of a valuable right, not least to the Applicant’s sense of security and certainty.
Accordingly, and on balance, the Tribunal considers that the legal effects of not revoking the cancellation on the Applicant weigh in favour of revoking the cancellation.
Extent of impediments if removed
Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
·the Applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to the Applicant in their country.
At present, the Applicant cannot be removed from Australia to Zimbabwe due to the protection finding made by the AAT in May 2024 in respect of him. Although the amending legislation relating to removal to a safe third country has now come into effect, there is no evidence before the Tribunal that the Australian government has made any third country agreements at present. If the Applicant’s Subclass 101 (Child) visa remains cancelled, he will remain in the community as the holder of a BVR for the moment. He will not be removed from Australia, unless other events occur, such as a decision that a protection finding would no longer be made under s 197D, or a foreign country gives the applicant permission to enter and reside in that country and his BVR ceases. No country has been specified for removal, and an assessment of impediments the Applicant might face is difficult to make in the absence of a country being identified. However, for the reasons set out in paragraph 138 above, the Tribunal accepts that although he is a young man in good physical health, the Applicant would have no family support or obvious means of support from other sources (including employment) if removed to a safe third country, and might well face language and cultural barriers depending on the country. It is also possible that he would not have access to the counselling and mental health supports that he has been able to access in Australia, and the Tribunal accepts that this would have a detrimental effect on his mental health.
The Tribunal therefore gives this factor some weight in favour of revoking the cancellation of the Applicant’s Subclass 101 (Child) visa.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal notes that Direction 110 indicates that this factor is generally only given weight where a decision would significantly compromise the delivery of a major project or important service in Australia. It was conceded by the Applicant that this was not the case with him. While the Tribunal accepts that the Applicant is working 5 days per week at present, this is casual, unskilled labour, and does not fall within the category of a major project or important service in Australia.
Accordingly, the Tribunal considers that this carries no weight in favour of revoking the cancellation of the Applicant’s Subclass 101 (Child) visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[62]
[62] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[63]
[63] [2023] FCAFC 138, [28].
In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations.[64] Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[65]
[64] Direction 110, cl 8.1(1).
[65] Ibid [27].
In the circumstances of this case, including consideration of the Applicant’s efforts at rehabilitation, the Tribunal considers that the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations. The protection of the community, that the Applicant’s conduct constituted sexual offending against women (including a child and a vulnerable, disabled person) and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation. The Applicant’s ties to Australia carry moderate weight in favour of revoking the cancellation. The best interests of minor children weighs neither for nor against revoking the cancellation in this case. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the Applicant were he to be removed to a safe third country carry moderate weight in favour of revoking the cancellation.
The Tribunal concludes that the primary considerations of the protection of the Australian community, and the expectations of the Australian community, which weigh strongly in favour of not revoking the cancellation, outweigh the considerations in favour of revoking the cancellation; namely, the strength, nature and durations of the applicant’s ties to Australia, the legal consequences of the decision and the extent of impediments if the Applicant is removed from Australia.
The Tribunal considers that this conclusion is in line with the principles set out in paragraph 5.2 of Direction 110, given that subparagraph 5.2(2) expressly states that the safety of the Australian community is the highest priority of the Australian government, and that the principles emphasise the interests of the Australian community over those of the individual applicant. In this case, the two primary factors that weigh against revoking the cancellation are those relating to the safety of the Australian community and the expectations of the Australian community. The only primary consideration which weighs in favour of the Applicant is his ties to Australia. However, the Tribunal does not consider that this factor, taken on its own or cumulatively with the legal consequences of the decision and the extent of impediments to the Applicant if removed from Australia, outweigh the primary considerations that weigh in favour of not revoking the cancellation of the Applicant’s Subclass 101 Child visa.
Having weighed up the factors, the Tribunal considers that the mandatory cancellation of the Applicant’s Subclass 101 (Child) visa should not be revoked, and the decision under review should be affirmed.
DECISION
The decision not to revoke the cancellation of the Applicant’s Subclass 101 (Child) visa under section 501CA(4) of the Act is affirmed.
I certify that the preceding 167 (one-hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Mercer
.................................[SGD].......................................
Associate
Dated: 2 January 2025
Date of hearing: 10 December 2024
Solicitors for the Applicant: Unrepresented
Solicitors for the Respondent: K Sypott, Australian Government Solicitor
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