WCFW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3797
•18 October 2021
WCFW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3797 (18 October 2021)
Division:GENERAL DIVISION
File Number: 2021/5223
Re:WCFW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:18 October 2021
Place:Perth
The decision of the delegate of the Minister dated 8 July 2021 not to revoke the mandatory cancellation of the Applicant's Special Category (Class TY) (Subclass 444) visa pursuant to s 501CA(4) of the Act is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of the Migration Act – decision not to revoke the mandatory cancellation of the Applicant’s visa – preliminary issue – whether representations made in accordance with reg 2.52(2)(b) of the Migration Regulations – Applicant fails the character test – Direction 90 considered – Applicant is a citizen of New Zealand – Applicant convicted of two counts of indecently dealing with a child who is a lineal/de facto relative – victim gave evidence at the hearing – victim supports the revocation of the cancellation of visa – there is not “another reason” to revoke the visa cancellation – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(3), 501CA(4), 501CA(4)(a), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 504(1)
Migration Regulations 1994 (Cth) reg 2.52(1), 2.52(2), 2.52(2)(b)
CASES
Arachchi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3146
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DBX16 v Minister for Immigration and Border Protection [2021] FCA 238
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 66; [2009] AATA 47
Minister for Home Affairs v HSKJ (2018) 266 FCR 591; [2018] FCAFC 217
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545; [2018] FCA 594
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(c)(i), 8.2(3)(c)(ii), 8.2(3)(c)(iii), 8.2(3)(d), 8.3, 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.2, 9.4.1(2)(a), 9.4.1(2)(a)(ii)
REASONS FOR DECISION
Deputy President Boyle
18 October 2021
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 8 July 2021[1] not to revoke the mandatory cancellation of the Applicant's Special Category (Class TY) (Subclass 444) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1, G3/11.
The Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test by reason of his substantial criminal record and he was serving a full-time term of imprisonment for an offence against a law of a State.
The application is made pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (AAT) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
Substantive issue
The substantive issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.[2]
[2] The Act s 501CA(4)(b)(ii).
Preliminary issue
A preliminary issue is whether the Applicant made representations seeking the revocation of the cancellation decision by the Minister, pursuant to s 501CA(4), within the 28-day limit provided under reg 2.52(2) of the Migration Regulations 1994 (Cth) (Migration Regulations). The determination of this issue is critical, as the Applicant making representations “in accordance with the invitation”[3] is a condition precedent to the power to revoke the cancellation of the visa under s 501CA(4).
[3] The Act s 501CA(4)(a).
BACKGROUND
The Applicant is a 37-year-old citizen of New Zealand. He first arrived in Australia in 2001 and has travelled back to New Zealand for short periods on three occasions since. He most recently entered Australia on 24 August 2011.[4]
[4] R1, G24.
On 12 March 2020 the Applicant was convicted in the District Court of Western Australia of two counts of “indecently dealt with a child who is a lineal relative” for which he received cumulative sentences of 12 months’ and four months’ imprisonment.[5]
[5] R2, 103.
On 2 June 2020 the Applicant’s visa was mandatorily cancelled pursuant to section 501(3A) of the Act.[6] On 3 June 2020 the Applicant signed an acknowledgment that he had received the notice of cancellation.[7]
[6] R1, G26.
[7] R1, G28/161.
On 2 July 2020 the Minister’s department (Department) received an email from Elaine Toovey,[8] Resettlement Manager at Acacia Prison, attaching the Applicant’s request for revocation and Personal Circumstances Form dated 22 June 2020.[9]
[8] R1, G6/37.
[9] R1, G6/40.
On 18 January 2021, Ms Toovey sent an email to the Department which stated that:
[Applicant] was informed that his application for revocation was late and not accepted, he has now written to the minister and a few other people complaining that he gave it to me on time and I have scanned it as per my normal process however the document went to draft and went a day late apparently.[10]
[10] R1, G11/99.
On 18 January 2021 the Department sent an email to Ms Toovey seeking further evidence that the Applicant had handed his revocation request to a corrections officer within the 28-day limit.[11]
[11] R1, G11/98–9.
On 22 January 2021, Ms Toovey sent an email to the Department which stated that:
I have been asked to re-engage with you guys as I was not specific enough with my email. As I explained previously it is no fault of [the Applicant] that his application was late, I processed it as I normally do and scanned it to myself, this was on the 29th June. I have attached the appointment he had and can confirm he attended. I thought I have scanned the document to [the Department] at that time also but found it in my draft box (in my email) on the 2nd of July so resent it. I have included his original application also so I am asking due to this being no fault of Mr [omitted] can he have the opportunity to have his application accepted or given 28 days to re-submit.[12]
[12] R1, G10/94.
On 28 January 2021 the Department emailed the Applicant an acknowledgment of receipt of a revocation request.[13]
[13] R1, G13; R1, G14.
On 8 July 2021 the delegate decided not to revoke the cancellation pursuant to s 501CA(4) of the Act. That decision was delivered by hand to the Applicant at Yongah Hill Immigration Detention Centre on 27 July 2021.[14]
[14] R1, G31.
On 30 July 2021, the Applicant applied to the AAT for review of the delegate’s decision.[15]
[15] R1, G2.
THE HEARING AND THE EVIDENCE
The application was heard on 29 September 2021. The Applicant appeared on his own behalf and the Minister was represented by Mr S Cummings of Sparke Helmore Lawyers. The following documents were admitted into evidence:
(a)Email of the Applicant dated 23 September 2021 (A1);
(b)Handwritten letter by the Applicant’s daughter dated 15 June 2021 (A2);
(c)Typed statement of the Applicant’s daughter, undated, received by the Tribunal 20 September 2021 (A3);
(d)Letter of support from Mr D C dated 21 April 2021 (A4);
(e)Statement of support from Mr P K dated 5 August 2021 (A5);
(f)Statement of support from Ms H C, undated, received by the Tribunal 20 September 2021 (A6);
(g)Statement of Ms L W dated 5 August 2021 (A7);
(h)Letter from Mr F D, undated, received by the Tribunal 20 September 2021 (A8);
(i)Statement of Mr X C, undated, received by the Tribunal 20 September 2021 (A9);
(j)Statement of Mr D H, undated, received by the Tribunal 20 September 2021 (A10);
(k)Section 501G documents (R1); and
(l)Documents produced under summons (R2).
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)The Applicant’s daughter;
(c)Mr D C;
(d)Mr F D; and
(e)Mr X D.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) …
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…
(Original emphasis.)
Section 501CA of the Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that:
[a] person or body must comply with a direction under subsection (1).
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the mandatory cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Section 504(1) of the Act provides:
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: …
Regulations 2.52(1) and 2.52(2) of the Migration Regulations maursuant to the power under s 504(1) of the Act provide:
(1)This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2)The representations must be made:
(a) for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and
(b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.
Preliminary issue – Did the Applicant make representations seeking revocation of the cancellation within the 28-day limit provided for under reg 2.52(2)?
While this was an issue raised (quite properly) by the Minister, it is the Minster’s position that the Applicant did make representations within the 28-day period required by reg 2.52(2)(b). The Minister submits that the Applicant was notified of the cancellation of his visa on either 2 June 2020 when the decision was made, or, at the latest, by 3 June 2020 when he signed a receipt document.[16] It is not disputed that the Applicant completed and signed the Personal Circumstances Form dated 22 June 2020,[17] which is the Department’s form by which representations in accordance with an invitation to make representations under s 501CA(3) of the Act are made. It is also not disputed that he met with Ms Toovey and finalised those representations on 29 June 2020. That was confirmed by the Applicant at the hearing.[18]
[16] R1, G28/161.
[17] R1, G7.
[18] transcript at 27.
It is also not disputed, and I accept, that Ms Toovey, as she explained (see [12] above), received the finalised representations on 29 June 2020 and, through error on her part, failed to email the representations to the Department on that day. It was not until 2 July 2020 (one or two days outside the 28-day time limit, depending on when the Applicant received the decision) that she realised that she had not sent the representations to the Department on 29 June 2020 as she thought she had. She then emailed the representations to the Department on 2 July 2020.
In Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] the Full Court found at [51] that the applicant in that case:
… could not use any email or facsimile facilities at the prison to send his representations because the prison authorities either did not have those facilities or would not make them available to him. All he could do was to give the representations he had already written to the prison authorities and entrust to them the task of communicating them to the Minister as and when they saw fit. He had no control whatsoever over the timing of when the prison authorities might choose to send his representations to the Minister.
And at [55] that:
The applicant made his representations when he gave them to the Corrective Services officers to be sent to the Minister. That was well within the 28-day time period allowed under the Regulations.
[19] [2020] FCAFC 196.
The circumstances in the present case are materially the same as those in Stewart. I agree with the Minister’s submission that, based on the Full Court’s above reasoning, the representations were made by the Applicant within the prescribed time and were made in accordance with the invitation under s 501CA(3).
Substantive issue
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[20] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [21] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...” That is so in the Applicant’s case.
[20] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 66; [2009] AATA 47.
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [20] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant does not have an extensive criminal record. The Applicant’s History for Court – Criminal and Traffic produced by the Western Australian Police Force (WA Police) under summons shows his convictions to be as follows:[21]
[21] R2, 103–4; see also R1, G4.
Court
Result date
Offence
Offence date
Result
Perth District Court of Western Australia
12 March 2020
Indecently dealt with a child who is a lineal/ de facto relative
31 December 2017
Reportable offender; four months’ imprisonment (cumulative) from 12 March 2020
Perth District Court of Western Australia
12 March 2020
Indecently dealt with a child who is a lineal/ de facto relative
31 December 2017
Reportable offender; 12 months’ imprisonment (concurrent) from 12 March 2020
Perth Magistrates Court
2 June 2015
No authority to drive – never held and disqualified
19 March 2015
$1,000 fine; motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court
17 June 2013
Breach of bail (fail to appear soon after)
11 May 2012
$300 fine
Perth Magistrates Court
17 June 2013
No authority to drive – suspended
3 April 2012
$400 fine; motor driver’s licence disqualified for nine months
Perth Magistrates Court
28 July 2005
Common assault
4 December 2004
Six month conditional release order; $400 undertaking
Perth Magistrates Court
28 July 2005
Give false personal details to police
4 December 2004
$100 fine
Perth Court of Petty Sessions
16 October 2004
Breach of bail
Unknown
$100 fine
Perth Court of Petty Sessions
16 October 2004
Exceed 0.08% but less than 0.09% BAC
9 November 2002
$400 fine; disqualified from holding or obtaining a motor driver’s licence for three months
The convictions which are obviously of most concern, are those for indecently dealing with a child who is a lineal/de facto relative for which the Applicant was sentenced to 12 and four months’ imprisonment. It was these convictions which caused the mandatory cancellation of the Applicant’s visa.
The facts of those offences were set out in Bowden DCJ’s sentencing comments as follows:
Each of those offences carries a maximum penalty of 10 years’ imprisonment. And each of those offences alleged that you unlawfully and - sorry, that you indecently dealt with your daughter, being a lineal relative and knowing of course that she was a lineal relative. Count 1 alleged that you touched her vagina, count 2 alleged that you touched her breasts. Insofar as the facts are concerned, in relation to count 1, I sentence you on the basis that the offence occurred in around about March or April 2018, when the victim was either 12 or 13.
She was lying down on a yoga mat, half asleep. You were also lying on the yoga mat. You put your hand inside her pants, touched her vagina and moved your hand on her vagina for relatively brief period of time. And in relation to count 2, I sentence you on the basis that again, it happened at the junkyard or what’s been referred to as the junkyard, on a different occasion. Again, everyone was sleeping on the yoga mats, you touched her breasts on top of her clothing and squished it.
Now, evidence was also given by your daughter of other occasions upon which you had touched her vagina. It's important you understand that I'm not sentencing you for any of those occasions. You weren't charged with them. It was introduced as what's known as context evidence. So I'm not punishing you for what you haven't been charged with. I'm only sentencing you for the two offences that you have been convicted of.[22]
[22] R1, G5/33.
Bowden DCJ noted in the above passage that the Applicant’s daughter had given evidence that the Applicant had touched her vagina on other occasions. The Applicant was cross-examined about this at the hearing and admitted that he had touched his daughter’s vagina “maybe like five times”.[23]
[23] transcript at 64.
Although as Bowden DCJ noted, he was not sentencing the Applicant for the other occasions when he touched his daughter’s vagina, I am required to consider the Applicant’s criminal offending or other conduct. Accordingly, the Applicant having touched his daughter’s vagina on four other occasions, in addition to the occasion which resulted in his conviction, is conduct to be taken into account under this consideration.
The Applicant was also cross-examined on the facts of the other offences and prior conduct. He was asked about an incident that occurred between 14 December 2018 and 7 January 2019 which was the subject of a Statement of Material Facts produced under summons by the WA Police.[24] That Statement of Material Facts described an incident in which the Applicant had “slapped” his daughter and her younger brother on the back. When she confronted the Applicant about slapping her, he “grabbed the victim [the Applicant’s daughter] by the throat and pushed her to the side”. The Applicant denied the accuracy of the statement and denied that he had slapped his daughter on the back, that she confronted him or that he grabbed his daughter by the throat.[25]
[24] R2, 106.
[25] transcript at 56.
The Applicant was also cross-examined on another claimed incident in that same period which was the subject of another Statement of Material Facts produced by WA Police.[26] That Statement of Material Facts alleged that the Applicant:
… grabbed the victim around the neck and pulled her towards him.
The Accused elbowed the Victim in the mouth. As a result, the Victim sustained a small lump on her lip, which bled.
[26] R2, 107.
The Applicant was cross-examined on this incident. His evidence was:
… I didn’t elbow my daughter in the mouth, I bumped into her. It wasn’t an elbow and I didn’t mean to do it.
…
… she wasn’t bleeding from her mouth. I didn’t even see a lump on her lip.[27]
[27] transcript at 56.
When asked why his daughter might have made up these stories, the Applicant’s evidence was that at times his daughter thought the he was “made of money” and that she wanted him to buy her an iPhone.[28]
[28] transcript at 57.
The Applicant’s daughter was cross-examined about these incidents. In both cases her evidence was that what she told the police, as reflected in the Statements of Material Facts and read to her at the hearing, was true, and that the events as described did happen.[29] In closing, Mr Cummings for the Minister submitted that:
… the [A]pplicant’s daughter comes here today wanting to get you to not deport the [A]pplicant. She’s got no reason to say what she did in terms of her confirming the truth of those reports which gives weight to her statement that those matters are true. You would also see those two documents as being a contemporaneous recording of a complaint made to that effect.
[29] transcript at 84–5.
I agree with that assessment. The Applicant’s daughter, although still a minor child, gave clear and, in my view, frank and credible evidence. I accept her evidence that the assaults on her by her father happened as described in the Statements of Material Facts.
The Applicant was also asked about the assault in December 2004 which resulted in the Applicant’s conviction in 2005 for common assault. A Statement of Material Facts produced under summons by WA Police described the assault as follows:
… the complainant and defendant have lived in a defacto relationship [no children] for some time. The incident is subject to Domestic Violence Incident Report [omitted].
…
Between the hours of 1:50pm and 2:05pm, on Sunday the 4th of December 2004, the defendant and complainant left the defendant's father's address in [omitted].
Several metres down the road, at the corner of [omitted] Street and [omitted] Street, the defendant and complainant became involved in an argument.
The defendant become angry and pushed the complainant several times into the side of a nearby telephone box. The defendant slammed the complainant’s head against the glass windows of the telephone box, before pushing her to the ground and kicking her.
The complainant has managed to get to her feet, walk a short distance, before the defendant pushed her with force into the side of a nearby fence.
…
When questioned over the matter, the defendant denied the offence stating that, 'he wouldn't hit his woman.'[30]
[30] R2, 116–17.
When cross-examined on this incident and his subsequent 2005 conviction for common assault, the Applicant’s evidence was that he could not remember whether he had pled guilty to that charge and denied that the incident occurred as set out in the Statement of Material Facts. His evidence was that it was his ex-partner who:
… was hanging off my shirt, [because] she thought I was going to leave her and I wasn’t … so I grabbed her by the wrist and I was trying to pull her off me and when I did her wrist hurt her back in the chest and she fell over.[31]
[31] transcript at 58–9.
While the Applicant denied the details of the incident as described in the Statement of Material Facts, the record shows that the Applicant was convicted of common assault in 2005 and the Applicant does not dispute that, whatever the details of the incident were, the victim of that assault was his then partner.
In sentencing the Applicant on the indecent dealing charges, Bowden DCJ made the following observations on the nature of the Applicant’s offence of touching his daughter’s vagina:
… she was crying. Her evidence was on another occasion she had reprimanded you - or made it clear that she didn't want you to indulge in this sort of behaviour.[32]
…
And the courts have made it clear time and time again that vulnerable, young children are entitled to look to the courts for protection. You were her father. Your responsibility was to care for her, not to abuse her.[33]
[32] R1, G5/34.
[33] R1, G5/35.
His Honour also noted that the Applicant had chosen to plead not guilty which necessitated his daughter having to give evidence at the trial. His Honour observed that:
It would have been a different sentencing scenario in my view if there had have been a plea of guilty, and there had have been an apology, or remorse exhibited towards your daughter so that she got the message that you well and truly understand the inappropriateness of your behaviour. But in circumstances where there's been a plea of not guilty, it just seems to me that I am entitled to reach a conclusion that you haven't shown any remorse.[34]
[34] R1, G5/35.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the Applicant’s offending has been both violent (common assault on his then partner) and of a sexual nature (indecent dealing with a child),[35] has been against women and children[36] and has involved family violence as that term is defined in para 4(1) of Direction 90.[37] Accordingly, the Applicant’s offending must be viewed as very serious.
(b)(Paragraph 8.1.1(1)(b)) – the Applicant’s conduct was not of the type described in this consideration.
(c)(Paragraph 8.1.1(1)(c)) – the only significant sentences, and the only custodial sentences imposed by the courts, were those for the indecent dealing with a child who is a lineal/de facto relative. As Bowden DCJ noted, the maximum sentence for those offences was 10 years’ imprisonment (see [40] above). While the sentences imposed were at the lower end of the scale of possible sentences, these offences must be viewed as very serious by operation of para 8.1.1(1)(a)(ii), “regardless of the sentence imposed” and by operation of para 8.1.1(1)(a)(iii), “regardless of whether there [was] … a sentence imposed.”
(d)(Paragraph 8.1.1(1)(d)) – the Applicant’s offending could not be characterised as frequent. The most recent offences of which the Applicant was convicted were clearly more serious than his prior convictions. In that sense there is an increase in seriousness, however, it would be difficult to characterise that as a “trend of increasing seriousness.”
(e)(Paragraph 8.1.1(1)(e)) – the Applicant has a relatively limited number of convictions over a 17-year period. While it is difficult to discern any cumulative effect of the Applicant’s repeat general offending, the cumulative effect of his behaviour towards his daughter is as I describe at [92(b)] below.
(f)(Paragraphs 8.1.1(1)(f) and 8.1.1(1)(g)) – not relevant.
[35] Direction 90 para 8.1.1(1)(a)(i).
[36] Direction 90 para 8.1.1(1)(a)(ii).
[37] Direction 90 para 8.1.1(1)(a)(iii).
I am satisfied that the Applicant’s offending was very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(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 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 non-citizen 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).
…
The Tribunal in CZCV and Minister for Home Affairs[38]summarised the task for the Tribunal as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[38] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[39] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[39] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Minister submits that the Applicant’s offending involved very serious sexual offences against an individual with whom he enjoyed a position of trust, his daughter, and that should the Applicant’s conduct be repeated, the consequences for the victims of the Applicant’s conduct are likely to include serious physical and psychological harm.
The Minister further submits that it is readily foreseeable that, should the Applicant reengage in similar conduct against other children, any victims of his further offending would be likely to suffer similarly devastating impacts. In those circumstances, according to the Minister, any risk of the Applicant committing further sexual offences is unacceptable.
I am mindful of the specific nature of the serious sexual offences of which the Applicant was convicted in that they involved indecently dealing with a lineal/de facto relative. While the offences of which he was convicted involved his daughter, in considering both the likelihood of the Applicant reoffending and the harm likely to be caused if he were to reoffend, consideration cannot be limited to a repeat of that specific offence, namely a sexual offence against a lineal/de facto relative. Obviously, the opportunity for, and therefore the likelihood of, a repeat of that specific offence will be limited. The relevant consideration, however, is the likelihood and impact of the Applicant offending in a similar way in the future, that is, committing a sexual offence against a child.
The nature of the harm which is caused by sexual assaults on children is obvious and serious; “ordinary human experience” tells us so.[40] We need look no further than the victim of the Applicant’s offending, his daughter, for an example of the harm that such offending causes. She is still receiving counselling.[41] The Applicant in cross-examination conceded that the harm caused to his daughter by his offending was going to be long-term.[42]
[40] See DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 at [86]–[87]; Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 at [44].
[41] transcript at 83.
[42] transcript at 64.
As his Honour in sentencing the Applicant observed:
I have received a victim impact statement from your daughter. And as everybody in the court, your counsel and prosecutor acknowledge, the victim impact statement is extremely emotional as far as your daughter is concerned. She's said that she's found the whole circumstances – not only the circumstances of your offending but also the circumstances where she was required to go to court, upsetting and an emotional experience.[43]
[43] R1, G5/34.
I find that the nature of harm that could result if the Applicant were to commit offences of the type that he has in the past is serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of reoffending (8.1.2(2)(b))
The Applicant did not provide a formal Statement of Facts, Issues and Contentions. There are, however, a number of statements made by the Applicant in these proceedings and in the representations made to the Minister in response to the invitation under s 501CA(3) of the Act which are potentially relevant to this consideration.
It is, in my view, significant that it is only in the most recent of his statements that the Applicant has admitted committing the index offences. In his statement made for these proceedings on 23 September 2021,[44] the Applicant admits to having committed the offences against his daughter and says that “it was wrong of [him] to plead not guilty to the charges” and that he is “truly sorry to the courts, the judge, and everyone involved in my case and especially my daughter who was the victim”. The timing of this belated epiphany must be questioned.
[44] A1.
In his representations to the Minister made in the Personal Circumstances Form dated 22 June 2020,[45] the Applicant, while not specifically denying the offending, was evasive and, in my view, failed to accept responsibility for what he did. It must be remembered that at the time of his making the representations in June 2020, he had already put his daughter through the trauma of having to relive the incidents of indecent dealing in his trial and had subjected her to cross-examination, the thrust of which was that she had fabricated the incidents.[46] In referring to his offending in the representations of June 2020, the Applicant made the following statements:
I was sentenced to the crime I’m currently in prison for. I pleaded not guilty. How ever I understand the trauma that has had on my children and family.
I have been accused of something terrible against my child. All of our lives have been shattered and we will never be able to be a family again.[47]
[45] R1, G6.
[46] transcript at 61, 83.
[47] R1, G6/57.
The above statement that he had been “accused of something terrible” is a glimpse into his lack of understanding and a lack of acceptance of what he did. It is not that he “has been accused of something terrible”, or even that he was convicted of doing “something terrible”; it is that he did “something terrible”. The Applicant was cross-examined about the use of the phrase “I have been accused of something terrible against my child” in his Personal Circumstances Form (emphasis added). Somewhat disconcertingly, his evidence was that:
If you want my honest opinion, right, Elaine [Toovey] kind of made me – she goes, “Just write this”, so I did.[48]
[48] transcript at 69.
It would be of great concern if corrections officers charged with assisting prisoners in preparing representations to the Department were telling prisoners what to say. In the present case, however, I do not accept the Applicant’s evidence that he used that phrase because Ms Toovey told him to. The phrase that he used was consistent with the Applicant’s then repeated, false denial that he had not committed the offences against his daughter.
The Applicant continued to deny having committed the offences against his daughter while he was in prison.[49] In cross-examination the Applicant was taken to the Western Australian Department of Justice (DOJ) Level of Service Risk Need Responsivity report created 5 May 2020 which, under the heading General Risk/Need Factors noted that:
[The Applicant] is a 35 year old male who is currently serving his first term of imprisonment for sex offences which he categorically denies.[50]
[49] transcript at 65.
[50] R2, 33.
The Applicant was then taken to a DOJ Classification Review created 31 March 2021 which noted:
[The Applicant] was assessed and recommended for participation in the following:
SEX OFFENDING (Deniers Programme) - Refuse to transfer. On interview 03/03/2021, [the Applicant] declined to participate in the Sex Offending (Deniers Programme) at Bunbury since he considered it far for him and he has concerns of being transferred there relating to his protection requirement.[51]
[51] R2, 15.
When asked at the hearing why he had declined to participate in the program, the Applicant’s evidence was:
No, I didn’t deny the course. I deny going to Bunbury Prison for the welfare of my safety and it was too far away. I have friends who wanted to come and visit me and I said I might – you know, if I go to Bunbury you won’t be able to come that far, so – and I was worried about my safety going there from stories I’ve heard about Bunbury Prison so I wasn’t going to put myself in that situation and have anything to do with violence that will go onto my record or anything like that. So I denied that, I never denied my program course.[52]
[52] transcript at 67.
I note that in his most recent statement submitted in these proceedings, that being the email dated 23 September 2021,[53] the Applicant says that “I could not do any counselling in prison as it was unavailable”. That statement is incorrect. A program was available, however, the Applicant’s priorities lay elsewhere.
[53] A1.
The Applicant’s denial of his offending appears to have extended to what he told those who he called to give character evidence on his behalf. When Mr D C was asked what he understood of the Applicant’s criminal offending, his evidence (relying on what the Applicant had told him) was that:
… he was accused of forcefully grabbing his daughter around the neck and choking her. Obviously he – he obviously denied that exact action, I think it was – yes, it wasn’t quite like how it was portrayed, in my opinion, from what I heard. So – but nevertheless, regardless, you shouldn’t touch your kids and I think he knew that and I think he understood that…[54]
[54] transcript at 88.
Another witness, Mr X C, gave the following evidence at the hearing as to what he understood the Applicant’s offending to be:
WITNESS: Well, my understanding is that it was – some of it’s fabricated.
COUNSEL: As in, like, someone had made something up and trumped up charges or - - -?
WITNESS: Yes, that is my understanding.[55]
[55] transcript at 94.
Clearly the Applicant had been dishonest in telling Mr D C and Mr X C what he had done to his daughter and even (apparently) that he had not only been accused, but had been convicted, of indecent dealings with his daughter.
The Applicant was also asked what research he had done or what enquiries he had made about availability of sex offender courses. His answer was:
I haven’t done any researches because I’ve been focused on all this paperwork and it’s just too much for me. It’s just – it’s a lot to take in. Now I’ve got so much paperwork, I’m not used to this stuff, and I’m trying to keep up with things, I’m trying to keep up with you guys as well and it’s – it’s just hard doing all this paperwork.[56]
[56] transcript at 69.
The Applicant was also taken to the DOJ Level of Service Risk Need Responsivity report created 5 May 2020 and to the risk of reoffending assessment made in that report[57] which was that he was “assessed as a medium risk of general reoffending on the LS/RNR in view of his prior history of offending, poor ties to family members, and association with procriminal others”.
[57] R2, 38–9.
In cross-examination, the Applicant was also asked about a DOJ Treatment Assessment Report created on 7 May 2020[58] which assessed the likelihood of his reoffending as follows:
[The Applicant] has categorically denied committing the index offences as such his offending could not be explored in any useful details.
Based on the Static-99R and Stable-2007 combined, [Applicant’s] composite assessment places him in Level III for supervision and intervention. Individuals placed in Level III are considered to be Average risk of sexual reoffending. His static risk factors include: prior conviction for non-sexual violence and four or more prior sentencing dates. His dynamic treatment needs include: significant social influences, capacity for relationship stability, hostility toward women, general social rejection, impulsive, poor problem solving skills, and deviant sexual preference.
…
Based on the current assessment, [the Applicant] presents as a medium risk of general reoffending on the LS/RNR and an average risk of sexual reoffending on the Static-99R and Stable-2007 combined. In view of this and in line with [the Applicant’s] stance of categorical denial, it is recommended he complete the Sex Offending Deniers Program. Should [the Applicant’s] stance in relation to his index offences change during the course of the above mentioned program, he may engage in Sex Offending Medium Program to address his treatment needs.[59]
[58] R2, 84–7.
[59] R2, 86–7.
All that the Applicant could say in response to these assessments was that he disagreed with them.
In response to further questions as to why he had not undertaken any sex offender treatment programs, and had in fact declined such a program, the Applicant maintained the answer that it was not correct to say that he had declined a program, he had rather declined to be shifted to Bunbury because of his visitors having to travel too far and his concerns for his safety. That, in my view, is not an acceptable reason. The Applicant demonstrates a lack of proper priorities, poor understanding of his offending, as well as a lack of concern about addressing his offending or identifying the cause of his offending behaviour. Whatever the characterisation of his attitude, the end result is that the Applicant has not engaged in any relevant rehabilitation.
Asked to say why he would not reoffend, the Applicant in the representations dated June 2020 said:
Nil offending in the future. I have been accused of something terrible against my child. All of our lives have now been shattered. And we will never be able to be a family again.[60]
[60] R1, G6, 57.
As noted above, the Applicant’s description of his being “accused of something terrible” indicates a failure on his part to accept responsibility for what he did.
In his most recent statement made 23 September 2021,[61] the Applicant claimed that:
I have done wrong in the past and I have acknowledged my mistakes and made sure never to make those mistakes again.
…
If I was given the chance to stay in this country and prove to my children that I am a great father like I’ve always been I would take the opportunity with open arms.
[61] A1.
The Minister contends that the Applicant is an unacceptable risk of reoffending. Until recently, he perpetuated the narrative that he had not committed the offences of which he was convicted (which resulted in the cancellation of his visa) and that he has continued a pattern of victim blaming. The Minister also points out that the Applicant has undertaken no relevant rehabilitation courses and contends that, in light of the very serious nature of the Applicant’s offending, the devastating harm that could be caused to his victims if the Applicant were to offend again and the tangible risk of recidivism, the protection of the Australian community weighs very heavily against revocation.
I agree with the Minister’s assessment. The Applicant has, as the Minister contends, until recently denied the index offending which not only caused further trauma to the victim by making her give evidence and be cross-examined, but also caused unnecessary cost and waste of resources for the state. The Applicant has undertaken no rehabilitation and I cannot be satisfied that he is anything other than (as assessed in the DOJ reports referred to above), a medium risk of general reoffending and an average risk of sexual reoffending. Given the nature of the harm that is caused by sex offending against children of the type that the Applicant has engaged in, the Applicant poses an unacceptable risk.
This consideration weighs heavily against the revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effect of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; …
(Original emphasis.)
The Applicant has engaged in family violence. Obviously the two convictions for indecent dealing with his daughter fall under the definition of family violence, however, other behaviour of the Applicant falls to be considered under this heading as well. The assault on his daughter described in [43]–[48] above constitutes family violence, as do the other four occasions (on the Applicant’s evidence) when he sexually abused his daughter by touching her vagina but was not charged (see [40] and [41] above). The assault in December 2004 on his then de facto partner which resulted in his common assault conviction in 2005 is also an incident of family violence.
Looking at the specific considerations identified in para 8.2(3) of Direction 90:
(a)(Paragraph 8.2(3)(a)) – the Applicant’s family violence has been relatively frequent, certainly of late. Since late 2004 there have been eight incidents; assault on his partner in December 2004 (see [49] above), the assault on his daughter in December 2018–January 2019 (see [43] above), the two indecent dealing incidents for which he was convicted and the four other times that he admits to having indecently dealt with his daughter (see [41] above).
(b)(Paragraph 8.2(3)(b)) – the cumulative effect of this repeated behaviour is, in my view, indicative of the Applicant’s character, his sexual proclivity and his preparedness to abuse a position of trust.
(c)(Paragraph 8.2(3)(c)) – as noted above, there is no evidence that the Applicant has engaged in any discernible rehabilitation. In relation to each of the sub-paras in para 8.2(3)(c):
(i)The Applicant consistently denied having committed the index offences. It appears on the evidence presented in these proceedings, that it was only in the last several months that the Applicant finally admitted that he had committed the offences against his daughter. That was well after he had put his daughter through the added and unnecessary trauma of having to give evidence and be cross-examined at his trial. It was not until his latest statement, made in September 2021, that the Applicant stopped referring to his position as him being “accused of something terrible” (see [67] above), rather than making an honest admission to having committed the offences.
(ii)If the Applicant did understand the impact that his offending has had on his daughter, then his repeated denial of guilt and putting his daughter through the trauma of giving evidence indicates a lack of care for that impact. His continued denial or wrongdoing, until relatively recently, also calls into question the level of his understanding of the impact of his offending.
(iii)The Applicant’s evidence at the hearing was that he did not know why he committed the index offences against and sexual behaviour towards his daughter.[62] He has taken no steps to address the factors which contributed to his offending and he has not even taken any steps, or at least no steps to which he drew my attention, to identify why he offended as he did in the past.
[62] transcript at 63.
The above lack of insight and understanding, along with the failure to take any steps to identify the underlying causes of his serious offending behaviour augurs badly for the Applicant’s rehabilitation.
The family violence that the Applicant has engaged in is serious and this consideration weighs heavily against revocation of the cancellation of his visa.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In his Personal Circumstances Form, the Applicant identified six minor children as being relevant to this consideration.[63] They are his two children, three nieces and a nephew.[64] At the hearing, however, the Applicant advised that one of his nieces identified in the Personal Circumstances Form, was 17 years old, turning 18 this year.[65] His evidence was that the second oldest of his nieces “is 16 or 15”.[66] The Applicant could not be any more specific.
[63] R1, G6/48, 50.
[64] R1, G6/50.
[65] transcript at 34.
[66] transcript at 34.
His evidence in relation to his nephew and nieces was that he had not seen them for “about four years” and was not able to even say whether they went to school each day.[67] He provided no financial or other support to these children.[68] His brother, the father of the nieces and nephew, is no longer in a relationship with the children’s mother. The children live with their mother and sometimes their maternal grandmother.[69]
[67] transcript at 35.
[68] transcript at 35.
[69] transcript at 35.
The Applicant appears to have no meaningful relationship with his three nieces: one of whom, according to the Applicant, is 17 turning 18, another may be 16 and the third, the Applicant believes, is 12 years old.[70] The same applies to the Applicant’s nephew, aged 14. The Applicant admits that he provides no support, financial or otherwise, and has not seen these children for four years. In an attachment to the Personal Circumstances Form completed by the Applicant in June 2020, he asserted that:
I know It would be an impact on my nieces and nephews for me to leave Australia as I was a close relative and good uncle to them. They have never had a problem with me at all as I've always been their [sic] for them where I could and help them with anything they needed sometimes they would call me their second dad and they would always put tears In my eyes, and that being said relates to the effect on them If I had to be removed from Australia.[71]
I had a good relationship with my nieces and nephews and I always gave them money and presents, I treated them with gifts at times when they were good, I looked at them like my own children. I saw them when I could as I was working a lot. Every time I saw them they will get so excited. They are all beautiful kids and very polite. They always told me I was like another father to them as I will always pay attention to them. They will always tell me that I was their best uncle ever. They have other uncles but they nether paid attention to them like I did. I always had time for them before anything else, my kids love them and have always been close to them. I love them Just as much I love my children. I didn't see them for a while as they moved house but then I spent time looking for them as my kids asked me to as they missed their cousins. I found out were they had moved to and I didn't hesitate to go visit them with my children and they were so happy to see us and there was a lot of emotions as they were reunited with their cousins again. I don't it [sic] for the sake of my children and my self to. Each and every one of them has the same relationship with me as they are all pretty much the same as my children. Good kids.[72]
[70] transcript at 34–5.
[71] R1, G6/54.
[72] R1, G6/55.
The above statements are hard to reconcile with the Applicant’s evidence at the hearing which was that he had not seen them for four years, did not know with any certainty how old they were and did not know whether they regularly attended school. There was no evidence from the nieces, nephew or their parents or other family members supporting the Applicant’s claims. What is clear is that whatever role the Applicant played in his nephew’s and nieces’ lives, he no longer plays any significant role, if any role at all. He does not suggest that he would play any positive parenting role in the future and there is no evidence, other than the Applicant’s somewhat hyperbolical claims set out in [98] above, that there would be any negative impact on the children if the Applicant were to be removed to New Zealand.
Insofar as the Applicant’s nephew and nieces are concerned, I do not find that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
The Applicant has two children, his daughter who was the victim of his offending who is now 16 years old, and his son who is now 14 years old. Their mother now lives in New Zealand.[73] The Applicant and the children’s mother ceased their relationship in 2010/2011 (the Applicant was not sure of the year). According to the Applicant she stayed in Australia for a period after they broke up, became involved in crime and as a result, went to New Zealand “because too many people were looking for her” in Australia.[74]
[73] transcript at 36.
[74] transcript at 36.
In his Personal Circumstances Form the Applicant wrote:
My relationship with my kids is very strong and it is a bond that can't be broken. My kids are my first priority, they are my best friends and my life.
My relationship with my daughter is close, my daughter is my first born, she looks up to me as a role model. I support her in anything she loves doing, such as sports, singing, and also she loves rap style music, I have written multiple rap songs for her and she came 1st in a talent quest competition. My daughter's personality is down to earth. She tells me off some times, she picks on me, nudges me, pulls my cheeks, she does anything to get my attention. Sometimes she can get bossy so I try not to push her buttons so she doesn't get angry. I'm my daughter’s father I have been with my kids since they were born, she needs me to be around, and her mother hasn't been around for the last 8 years. My kids live with their grandparents, I see my kids every weekend and call them every day to see if they are ok and if they needed anything I could help them with and also to see if they are behaving for their grandparents and being good in school and doing all the right things…
…
So my relationship with my daughter Is like a brother and sisters bond and that such things does not get broken, and I know my daughter misses me and needs me right next to her. When my daughter is feeling down I'm always the on to be there to pick her up.
My relationship with my son is tight as well, he looks up to me like I'm his super hero, I always put my kids first before anything I love them and they mean the world to me, I cherish every moment of it. I'm the only man figure in my sons life so I enjoy teaching my son activities such as basket ball, soccer, rugby, skating, swimming, piano, I play xbox with him ect. I and my son are best friends. We always have a great time together and I always try and be the best father I can be for him and my daughter, I love my kids. We laugh and joke with each other all the time, my son has a very great sense of humour and can take a joke, his personality is absolutely amazing, he also turns to me If he needs to talk to someone and that person was me, I tell my kids that I'm always here for them no matter what. The role I play in my kids lives is of a supporting father I always make sure what they need they get at any time. I love my kids more than life itself, I always teach my kids to be the best person of them selves. I and my kids relationship is always open so we can discuss anything with each other and that's what a family is. My son Is the same as his sister they both need me. I could never Imagine leaving my children It would be a nightmare and it would kill me as to be kicked out of this country I wouldn't be able to see them again with out disrupting their lives for them to travel back and forth to see me.
(Without alteration.)
The Applicant’s evidence at the hearing was that his son lives with his maternal grandmother and his daughter “stays with her boyfriend and his parents”.[75] For the previous eight or nine years, ever since the Applicant and the children’s mother separated in 2010 or 2011, the children had lived with their grandmother. The children did not live with the Applicant at any time after the Applicant and their mother separated.[76] There was, or is (it was not clear) a Family Court order in place pursuant to which the children’s grandmother had primary custody of the children and the Applicant was allowed to visit and have the children overnight on weekends. The Applicant was paying some child support to his mother-in-law, however, that stopped when he was arrested. The Applicant accepted that prior to his arrest his mother-in-law “was paying the majority of the kids’ living expenses”.[77]
[75] transcript at 36.
[76] transcript at 37.
[77] transcript at 39.
The Applicant’s daughter’s evidence was that she lives with her boyfriend and his parents but that her grandmother is still her legal guardian. Her boyfriend’s parents live “right around the corner” from her grandmother.[78]
[78] transcript at 86.
The Applicant’s daughter provided a statement.[79] A letter sent by the Applicant’s daughter to the Applicant was also admitted into evidence.[80] In the letter to her father,[81] the Applicant talks about her rapping and how she hoped to see the Applicant soon. In her statement,[82] the Applicant’s daughter said that she would “still love to have [her] dad in [her] life”. She said that it would upset her not to be able to see her dad again (i.e. if he were deported) and that she “was always so close with [her] dad”. She did say, however, that she is “also confused and a little scared of how it would be if [she] saw [her] dad again”. She said that she is “still healing and trying to get better from what happened” and that she “wouldn’t want to be with [her] dad alone at the moment”.
[79] A3.
[80] A2.
[81] A2.
[82] A3.
The Applicant’s daughter’s evidence was also that her younger brother, the Applicant’s son, lived with his grandmother (and grandfather) and a younger half-brother who was a child of their mother with someone other than the Applicant.
The Applicant was also asked about whether his children’s grandmother, their legal guardian, would allow the children to see the Applicant if he were released back into the community. It was the grandmother who had (as far as the Applicant was aware) sought the restraining order[83] by which the Applicant was restrained from contacting or attempting to contact the children for two years from 5 February 2019 to 4 February 2021.[84] The Applicant could not say what his mother-in-law’s attitude would be to him being able to see his children. His evidence was as follows:
[83][83] R2, 123.
[84] transcript at 46.
COUNSEL: … If you got your visa back today and you went to your mother-in- law’s house and said, “Can I see my daughter?” Do you think she would say, “Yes”?
APPLICANT: Probably not but I don’t think I’m allowed to go to her house, so - - -
COUNSEL: Why is that?
APPLICANT: I don’t know, I think she’s got a restraining order on me, so - - -
…
COUNSEL: Do you think that – do you accept that you may have to go to court to arrange for contact with your children?
APPLICANT: Would I agree to go to Family Court?
COUNSEL: Do you think that is likely – that is what’s likely going to happen, given what you said about your mother-in-law not supporting you seeing the kids?
APPLICANT: Maybe but I’m willing. I am willing to do anything now. If it goes to Family Court then, yes, I’ll do anything.[85]
[85] transcript at 40.
Even before his arrest on the indecent dealing charges on 22 March 2019, the Applicant’s contact with his children was limited. His evidence was that since the time of his separation from their mother, they lived with their maternal grandmother and he saw them only on weekends. That was for eight or nine years. For the month or so leading up to his arrest in March 2019, the Applicant was prevented from having any contact with the children by the restraining order issued at the request of the children’s grandmother.
In relation to each of the factors identified in sub-paras 8.3(4)(a)–(h) of Direction 90:
(a)While the Applicant is obviously the children’s father, for significant periods, in the case of the Applicant’s son, for the majority of his life, the Applicant’s contact has been inconsistent and, in large part, limited to weekend visits. The children’s grandmother seems to have done most of the parenting over the eight or nine years leading up to the Applicant’s arrest in March 2019, and thereafter all of the parenting.
(b)Given the nature of the Applicant’s offence against his daughter and the previous violent behaviour towards her, it is difficult to see that the Applicant would play a significant, positive influence in her life. I am also mindful of the fact that the Applicant’s daughter is now living with her boyfriend’s parents, largely outside the Applicant’s extended family. It is difficult to see the Applicant playing any meaningful parental role in the short period before his daughter turns 18. In this regard I note the Applicant’s daughter’s following evidence at the hearing:
COUNSEL: Do you know what your grandma’s views are at the moment about you seeing your dad if he gets to stay in the country?
WITNESS: My nan thinks that some – at the moment, until I am fully better, to not talk to my dad as much because it brings me down sometimes and puts me in a really bad mood, and she wants me to work on my mental health and see counsellors first before I do talk to him. But she said it’s up to me and what I want to do.[86]
[86] transcript at 85.
There is little evidence, other than the Applicant’s statement from his Personal Circumstances Form set out at [102] above, of the role that the Applicant has played, or is likely to play, in his son’s upbringing if he is allowed to remain in Australia. He has only spoken to his son once by phone since July this year. His contact with his son has been limited to speaking to him on the phone if he happens to be with his sister when she has spoken to the Applicant.[87] The Applicant has spoken to his daughter by phone perhaps six times since July this year.[88]
[87] transcript at 41.
[88] transcript at 41–2.
It does seem on the evidence presented, that the parenting role has been adequately provided to the Applicant’s son by his maternal grandparents for the last eight to ten years and there is nothing to suggest that would not continue. Again, there is little evidence upon which I could make a finding that the Applicant would be likely to play a positive parental role in his son’s life.
(c)The impact that the Applicant’s offending against his daughter has had on her has been discussed above. She still receives counselling and, as she herself said, she is scared of being alone with the Applicant. The Applicant’s selfishness in pleading not guilty and putting his daughter through the trauma of a trial in which she had to recount her father’s indecent dealings and be subjected to cross-examination in which her honesty was contested, has also, predictably, had a significant impact on her.
(d)As a result of the restraining order issued in February 2019, the Applicant had no contact with his children for two years. Since that order ceased to have effect in February this year, the Applicant has had contact with his daughter through Facebook and by telephone.[89] There is no reason why the Applicant could not stay in touch with his children through social media and by telephone which has been the only means of contact for the last several years. I also note the Applicant’s daughter’s evidence at the hearing when asked whether she would visit her father if he were to be returned to New Zealand, that:
I don’t know because there’s a court order that says I’m not allowed to leave Australia until I’m 18, I think, and I’m not sure what – if – I probably would but I would like it if he was here.[90]
(e)As noted in [109(b)] above, the parenting roles have, for the last several years, been totally provided by the children’s grandparents. The maternal grandmother remains the children’s legal guardian and even before that, the grandparents largely fulfilled parenting roles for both children.[91]
(f)As noted above, the Applicant’s daughter provided a letter of support to the effect that she did not want him deported. She did, however, even in that letter of support, say that she was “confused and a little bit scared of how it would be if [she] saw [her] dad again” and that she “wouldn’t want to be with [him] alone at the moment”.[92] The Applicant’s son did not provide any statements.
(g)The Applicant’s children, his daughter in particular, have obviously been subjected to family violence by the Applicant.
(h)There is clear evidence that the Applicant’s daughter has suffered, and continues to suffer, emotional trauma arising from the Applicant’s conduct.
[89] transcript at 80 (Applicant’s daughter’s evidence).
[90] transcript at 80.
[91] transcript at 86.
[92] A3.
While I accept that the Applicant’s daughter, who is the victim of the most serious of the Applicant’s offending, with some reservation, wants her father to stay in Australia, it is difficult to see objectively how the best interests of the Applicant’s children would be served by the Applicant’s visa being reinstated. I do not consider that the Applicant’s nieces’ and nephew’s best interests would be served by the Applicant remaining in Australia. Other than the Applicant’s claims that he is close to them, there was no evidence from those children or their parents or guardians to substantiate that the Applicant plays any part, or any meaningful part, in their lives.
Based on the Applicant’s daughter’s statement that she would rather her father stayed in Australia, I find that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa. For the reasons set out above, however, only very minor weight should be given to this consideration.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition ... 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. In particular, the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Tribunal also refers to the principles set out in para 5.2 of Direction 90 as set out in [25] above.
As noted at [23] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[93] at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65[94] (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs.[95]
[93] [2021] AATA 1143.
[94] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
[95] [2019] FCAFC 185; (2019) 272 FCR 454.
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
I respectfully agree with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[96] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
[96] [2020] AATA 3953.
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
158.Justice Stewart in FYBR (FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
159.Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
79.…The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
160.Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes omitted.)
Due to the application of the “norm”, as it is now referred to, in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa.
I must, however, determine what weight should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) Direction 90 (see [112] above) which provides that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f).
In the present case, sub-paras (a): family violence and (c): serious crimes against women or children including crimes of a sexual nature are relevant. On the basis of the Applicant’s offending falling within the categories described in the above sub-paras, moderate weight should be given to this consideration. In so finding, I am not “double counting” these aspects of the Applicant’s offending, but rather taking into account specific factors identified by Direction 90 as being relevant to this consideration.[97]
[97] See Arachchi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3146 at [138]–[142].
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests
International non-refoulement obligations (para 9.1)
The Applicant does not specifically raise any non-refoulement claims. In his Personal Circumstances Form, in response to the question of whether he had any concerns or fears about returning to New Zealand, the Applicant said:
I've had run INS with guys back in high school who I believe are associated with gang members back in New Zealand. I've always feared them and what they would do to me If I had to return to New Zealand.
I came to Australia to get away from all of that and for the safety of my self and family and start a better life and to not get caught up in any of that stuff, also I didn't want to raise my children around all that environment as they might be a threat to my kids as well. That explains pretty much why I've been In Australia to avoid being hurt or anything else bad that could happen to me.[98]
(Without alteration.)
[98] R1, G6/61.
Under the heading “Reasons for Revocation” in the Personal Circumstances Form the Applicant advised that:
For the sake of my kids. I came to Australia as a 17 yr old. My mum thought that Australia was the place for me to go due to bullying stand over drug culture and gang’s who were trying to recruit and I didn’t want any part of that. I now consider myself Australian and would not like to go back to New Zealand.[99]
(Without alteration.)
[99] R1, G6/42.
It is questionable whether the above fear, even if it were well-founded, would give rise to any non-refoulement obligations on the part of Australia. That issue becomes academic because I find that the Applicant has no reasonable basis for the fear that he will be bullied or that he would be the subject of any adverse attention by New Zealand gangs. In cross-examination his evidence was that he had been bullied at school by students who “were sons of people who were in gangs, so that kind of scared me a bit”.[100] That, he conceded, was 20 years ago. Asked whether he thought that those bullying issues were “sort of over now” the Applicant’s evidence was that he “can’t say”.[101] The following exchange took place:
[100] transcript at 47.
[101] transcript at 47.
COUNSEL: You’re not a kid anymore, though. You can’t be bullied, can you?
APPLICANT: No.
COUNSEL: If anyone hassled you, you’d just call the police, wouldn’t you?
APPLICANT: If that’s the right way of going about it, yes, I probably would, yes.
…
COUNSEL: You don’t have any reason to think that the people who bullied you in high school 20 years ago are still on the lookout for you?
APPLICANT: I’m not sure.
TRIBUNAL: [WCFW], the question is have you any reason to believe that that’s the case?
APPLICANT: I believe that there’s a possibility they still could be in New Zealand in the same area.
TRIBUNAL: That’s not quite the same. That’s not answering the question. Is there any basis for you to believe that these people will pursue you if you went back to New Zealand?
APPLICANT: I don’t know, Mr President.
TRIBUNAL: Well, again, listen to the question. The question is, is there any basis for you to believe that they would? It’s either a yes or no answer?
APPLICANT: I’d say yes, yes.
TRIBUNAL: There is basis for you to believe that they will pursue you?
APPLICANT: Well, they did in the past and if they’re still there probably yes. I’m not going to say no, I’m just being honest.
TRIBUNAL: But that’s just your belief based on the way they treated you 20 years ago when you were children?
APPLICANT: That’s just my belief, yes.
TRIBUNAL: There is nothing that’s happened in the last 20 years which would support any conclusion that they are likely or will pursue you?
APPLICANT: I don’t know, Mr President.[102]
[102] transcript at 48.
I am satisfied that there is no logical or reasonable basis for the Applicant’s claimed belief.
The consideration of non-refoulement is not relevant in the present case.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy.
The Applicant did not identify that he suffers from any physical or psychological medical condition.[103] He would not face any language or cultural barriers in establishing himself in New Zealand and he has his parents and four siblings living in New Zealand. His evidence at the hearing was that he speaks to his brothers and sisters, all of whom live in Hamilton, once or twice a week.[104] A number of those siblings (and a soon-to-be brother-in-law) are involved in the construction industry in which the Applicant has worked for the majority of his employment history. The Applicant’s evidence was:
TRIBUNAL: Would your brother [omitted] or [omitted] be able to – or even [omitted] for that matter, do you think that they would be able to assist you in getting employment or otherwise try to find accommodation or to find employment if you were to go back to Hamilton?
APPLICANT: I would say so, yes.[105]
[103] R1, G6/60.
[104] transcript at 51.
[105] transcript at 52.
The only other matter raised by the Applicant which might have been relevant to this consideration was the Applicant’s claimed belief that he would be bullied if he were to return to New Zealand. For the reasons set out above, I have found that there is no basis for or substance to this claimed fear of bullying.
I am satisfied that the Applicant would have little trouble in establishing and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand). This consideration does not weigh in favour of revocation of the cancellation of the Applicant’s visa.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Insofar as a consideration broader than the impact on victims is required, then aspects of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) are dealt with elsewhere. One aspect has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke the cancellation) is also considered below in the consideration of the Applicant’s links to the Australian community under para 9.4 of Direction 90 and in considering the best interests of minor children under para 8.3. Insofar as the impact on those members of the Australian community is to be considered, I have done so under those considerations.[106]
[106] See Arachchi at [185]–[186].
Insofar as this paragraph requires consideration of the impact of a decision under s 501CA(4) on a victim of the Applicant’s offending, this is a relatively rare case in that we do know what the attitude of the primary victim of the Applicant’s offending is. The Applicant’s daughter, with some reservation, as I noted above, does want her father to stay. There is no evidence of the attitude of other victims of the Applicant’s offending or the other members of the community likely to be directly affected by a decision, in particular the children’s grandmother and guardian who, as the Applicant conceded, is not supportive of his application.
Based on the desire for the Applicant to stay in Australia, as expressed by the primary victim of the Applicant’s offending (being his daughter), this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. Given that the Applicant’s daughter does have some reservations, and has stated that she is not sure how she will handle meeting her father again, and given that she will be an adult within the next couple of years and will be able to travel to see the Applicant in New Zealand if he were to be deported, only minor weight should be given to this consideration.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(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 noncitizen 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.
The Applicant has lived in Australia since 2001 having arrived as a 16-year-old with his father. He therefore was not a “young child” when he arrived in Australia. He was educated in New Zealand.
The first of the Applicant’s more serious offences, the assault on his then partner, occurred in December 2004, which, while a relatively short time after his arrival, could not be said to be “soon after arriving in Australia”.
Other than his two children, the Applicant identified five uncles and aunties, seven nephews and nieces and 10 cousins as living in Australia.[107] Other than his four nephews and nieces (one of whom either is, or is nearly an adult) discussed above, the Applicant provided no evidence of or in relation to these other family members. In his Personal Circumstances Form he identifies all his close living relatives (both parents and five siblings as living in New Zealand.[108] At the hearing the Applicant did note that his brother, the father of his nephew and nieces, had now returned to Australia. No evidence was provided as to this brother’s view on whether the Applicant should be allowed to remain in Australia. No evidence was provided as to the Applicant’s brother’s residential status. He is identified by the Applicant in his Personal Circumstances Form as a New Zealand citizen.[109]
[107] R1, G6/56.
[108] R1, G6/56.
[109] R1, G6/56.
In relation to his positive contribution to Australia, the Applicant identifies his employment, stating that he has always worked hard and that he has never been on social security payments, that he has helped the homeless and given money to charity and donated to Green Waste.[110] He identifies three employers from 2015 to 2020 where he worked as a kitchenhand, brick chipper or a labourer. No employment before 2015 was listed.
[110] R1, G6/60.
The main evidence of social links with Australian citizens, Australian permanent residents, are the statements and letters of support provided to the Applicant, and in some cases, oral evidence of those who gave such letters or statements. Clearly there are members of the community who have enough regard for the Applicant to want him to stay. The statements of support must be read, in some cases at least, in light of the fact that those giving them may have been mislead as to the nature and extent of the Applicant’s offending.
I also accept that there would be an emotional impact, particularly in the case of his daughter and son, if the Applicant were to be deported. As far as the evidence indicated, there would not be any financial impact on any member of the community of the Applicant’s visa were to remain cancelled.
The Minister accepts the Applicant has made positive contributions to the Australian community through his work as a labourer, brick chipper, chef/kitchenhand and through charity,[111] and that he has spent most of his life in Australia, having arrived 20 years ago as a 16-year-old.[112]
[111] Direction 90 para 9.4.1(2)(a)(ii).
[112] Direction 90 para 9.4.1(2)(a).
I find that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa but, for the reasons set out above, the Applicant’s links to the community are not particularly strong and only minimal weight should be given to this consideration.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is 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.
Neither party made any submissions on this consideration and I find that it is not relevant to the present case.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[113] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[114]
[113] (2018) 74 AAR 545; [2018] FCA 594.
[114] (2018) 266 FCR 591; [2018] FCAFC 217.
Colvin J’s judgment in Suleiman was recently considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[115] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[115] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
I note that the third principle that Wigney J identifies is that “one or more primary considerations may outweigh other considerations”. While he does couch this principle in terms of “may outweigh”, the reference to a “primary consideration” potentially outweighing “other considerations” is perhaps ambiguous. When his Honour refers to “other considerations”, is he referring to “other considerations” as that term is used in Direction 90 (i.e. Direction 90 para 9) or is he referring to the other considerations, both primary (i.e. Direction 90 para 8) and “other” (i.e. Direction 90 para 9) other than that primary consideration?
The other potential issue that Wigney J’s use of the term “other considerations” raises, is that are we to take him as saying that one or more primary considerations (i.e. a consideration under para 8 of Direction 90) only can outweigh the “other considerations”, even if you take his reference to “other considerations” as being to the other primary (Direction 90 para 8) considerations and the “other considerations” under para 9? I think not. I understand the weighing/balancing exercise to be one by which the decision-maker takes into account all of the considerations, primary[116] and other[117] (mindful of the fact that, generally, primary considerations are to be given greater weight) and, having allocated a weight to each consideration, to place those that favour revocation of cancellation or the granting of a visa on one side of the scale and place those that weigh the other way on the other side of the scale and determine which category has the greater weight. I think that it is not correct to compare one particular consideration, such as the interests of minor children or impediments to establishing a living standard, and to say that one, usually protection of the community, outweighs that particular consideration. The exercise is not one of comparing any one consideration against another, it is an exercise of giving appropriate weight to each consideration and then balancing all of those which weigh in favour of revocation against those which weighing against revocation and deciding which category has the greater weight.
[116] Direction 90 para 8.
[117] Direction 90 para 9.
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, for the reasons set out above (see [38]–[88]), I find that this consideration weighs heavily against the revocation of the cancellation of the Applicant’s visa.
The second primary consideration, family violence, for the reasons set out in [91]–[94] above, weighs heavily against the revocation of the cancellation of the Applicant’s visa.
In relation to the third primary consideration, I find that the best interests of minor children, for the reasons set out in [96]–[111] above, would be served by the Applicant being allowed to stay in Australia. However, only minor weight should be given to this third primary consideration.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. For the reasons set out at [119] above, moderate weight should be given to this consideration.
In relation to the relevant “other considerations” identified in Direction 90, the consideration of the extent of impediments, while relevant, for the reasons set out at [127]–[130] above, does not weigh in favour of revocation of the cancellation of the Applicant’s visa.
The consideration of the impact on victims as directed by para 9.3 of Direction 90, insofar as it encompasses the impact on members of the community other than victims, is covered by considerations of other paragraphs of Direction 90. Insofar as para 9.3 calls upon the Tribunal to consider the impact of a decision under s 501CA(4) of the Act on victims, the view of the most impacted of the Applicant’s victims, his daughter, is recognised by my finding that this consideration weighs in favour of revoking the cancellation of the Applicant’s visa. However, for the reasons set out at [134] above, only minor weight can be given to this consideration.
The consideration of the links to the Australian community weighs in favour of revocation of the cancellation of the Applicant’s visa, however, for the reasons set out in [137]–[144] above minimal weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against the revocation of the cancellation of the Applicant’s visa, I find that the considerations against revocation outweigh those in favour of revocation. Accordingly, I find that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 8 July 2021 not to revoke the mandatory cancellation of the Applicant's Special Category (Class TY) (Subclass 444) visa pursuant to s 501CA(4) of the Act is affirmed.
I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 18 October 2021
Date of hearing: 29 September 2021 Applicant: In person Counsel for the Respondent: Mr S Cummings Solicitors for the Respondent: Sparke Helmore Lawyers
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