WMDG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

WMDG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3153 (20 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5539
Re:WMDG
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:20 September 2022
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision dated 5 May 2022.
In place of the decision so set aside, the Tribunal decides that the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is not cancelled.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – cancellation of a visa – applicant is citizen of Samoa and of New Zealand – applicant held Class TY Subclass 444 Special Category (Temporary) visa – visa cancelled under s 501(2) of Migration Act – sexual offending – consideration of whether applicant fails character test – applicant fails character test – ministerial direction No. 90 – primary considerations – protection of Australian community – best interests of minor children in Australia – expectations of Australian community – extent of impediments if removed to New Zealand – links to Australian community – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 43
Migration Act 1958 (Cth), ss 5G, 189, 499, 500, 501
Cases
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs (2019) 272 FCR 454
R v Verdins & Ors [2007] VSCA 102
Secondary Materials
Department of Social Security – Social Security Guide, Version 1.297 – Released 15 August 2022.
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
20 September 2022

Given that these reasons must refer to offending against minors, the Tribunal issued orders under s 35 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) that the hearing be private and prohibiting the publication of the name of the Applicant. He will be known as ‘WMDG’. Certain details which might tend to identify the Applicant or members of his wider family will be anonymised. Where documents with the Applicant’s name are quoted, the anonym will be substituted.
The Applicant was born in 1985 in the Independent State of Samoa, to Samoan parents. The Tribunal finds that he is, consequently, a citizen of that country. It is not in contest that he is also a citizen of New Zealand. WMDG first came to Australia in 2000. He resided in Australia for the next nine years before departing late in 2009. WMDG returned to Australia in 2016 and was granted a Class TY Subclass 444 Special Category (Temporary) visa, which is a special visa granted to New Zealand citizens to reside in Australia indefinitely. But it is not a permanent visa. WMDG has not departed Australia since that time.
On 7 December 2019, a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Minister’) informed WMDG that the delegate was considering whether there were grounds to consider cancelling his visa under s 501(2) of the Migration Act 1958 (‘the Act’). WMDG responded to the notice. On 28 June 2022, the delegate advised that, after careful consideration of the response, the delegate had decided on 5 May 2022 to cancel WMDG’s visa under s 501(2) of the Act.
The specific ground under which the visa was cancelled was s 501(6)(e) of the Act. WMDG was advised of his right to seek a review of the 5 May 2022 decision, and he did so on 6 July 2022.
Under s 500(6L) of the Act, where a decision has been made under s 501 and the person is in the migration zone, the Tribunal must make a decision within the period of 84 days after the day on which the person is notified of the decision. Otherwise, the Tribunal is deemed to have affirmed the decision under review.
The letter of 28 June 2022 was emailed to the Applicant’s representative and, it states, hand-delivered to him. Accordingly, the 84-day clock starts on 29 June 2022 and ends on 20 September 2022.
HEARING
A hearing was held on 8 September 2022. WMDG gave evidence. He was represented by his sister, Ms SA, as a lay advocate. The Tribunal agreed, without objection from the Respondent, that Ms SA could give evidence. Ms Cassandra Polese, a solicitor of Minter Ellison, represented the Respondent, instructed by Ms Georgia Wilson of the same firm. Most of the evidence was given in English but the Tribunal was assisted by an interpreter in the Samoan language.
At the start of the hearing, the Respondent submitted that the Applicant’s advocate should not be present when he gave evidence on the basis that her presence may tend to colour WMDG’s evidence when she followed him into the witness box. The Tribunal rejected this submission from the Minister as being procedurally unfair. The Tribunal decided that a lay advocate would be significantly hampered in advocating fairly for WMDG if that person had been excluded from hearing the oral evidence given by the Applicant. However, the Tribunal did accept the Respondent’s submission that there are special features of this matter which made it desirable to depart from the Tribunal’s usual practice of hearing oral evidence from the Applicant first. It decided that Ms SA should give her evidence first, in the absence of WMDG and his other sister Ms OS and a nephew, both of whom were present in the hearing room in a supportive capacity but who were not being called to give evidence.
Ms SA suggested that the Applicant’s other sister, Ms OS, could give evidence. The Tribunal explained that this was not possible because Ms OS had not lodged a written statement with the Respondent at least two business days before the hearing. There was no earlier written statement from Ms OS in the other papers lodged with the Tribunal (see section 500(6H) of the Act).
The Tribunal admitted into evidence the following documents:
(a)Volume of ‘GD’ documents submitted by the Respondent on 15 July 2022 (Exhibit R1);
(b)Volume of Supplementary (or ‘SGD’) documents lodged on 2 September 2022 (Exhibit R2);
(c)Statement of Ms SA, dated 9 August 2022 (Exhibit A1); and
(d)Support letter from Ms Amanda Douglas, psychologist, dated 19 August 2022 (Exhibit A2).
The Respondent also lodged a Statement of Facts, Issues and Contentions dated 2 September 2022 (‘RSFIC’), to which the Tribunal had regard.
Questions before the Tribunal
The first question to determine is whether WMDG fails the character test. If the Tribunal is satisfied that he does not, then the discretion to cancel the visa under s 501(2) was incorrectly exercised, and the visa should be restored. If WMDG does fail the character test, the next question is whether the discretion should have been exercised to cancel his visa.
Does the Applicant pass the character test?
Section 501(6)(e) of the Act provides that a person does not pass the character test if a Court in Australia or a foreign country has convicted the person of one or more sexually- based offences involving a child, or found the person guilty of such an offence, or found a charge against the person proven for such an offence, even if the person was discharged without conviction (see section 501(6)(e)(i) and (ii) of the Act).
The Tribunal notes a nationally coordinated criminal history check by the Australian Criminal Intelligence Commission dated 11 October 2021 (‘ACIC Report’, GD, pp 41-42). The ACIC Report relevantly records that on 10 April 2019, WMDG was convicted of the following offences: Person sex assault by touching child under 16; Sexual activity in the presence of a child under 16 (two counts). He was sentenced to six months’ imprisonment. This offending occurred between 1 January 2018 and 26 May 2018.
Ms SA in her oral submissions confirmed that the Applicant accepted that he did not pass the character test because of these convictions.
Finding on the character test
The Tribunal finds that WMDG failed the character test because of the interaction between the provisions of ss 501(6)(e) and 501(3A)(a)(ii) of the Act. Having made that finding, the next question is whether the Minister (through his delegate) should have exercised the discretion to cancel WMDG’s visa under s 501(2) of the Act.
Should the discretion be exercised to cancel the visa?
How the Tribunal must approach this question is guided by a direction that the previous Minister has made under s 499 of the Act.
Ministerial Direction No. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under s 499(2) of the Act.
On 8 March 2021, the then Minister made a direction under s 499, Direction No. 90 (‘the Direction’); which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether the discretion to cancel the visa should be exercised. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task. It must look at any other relevant factors in the circumstances of the case.
Therefore, in deciding whether the discretion in s 501(2) to cancel WMDG’s visa should be exercised, the Tribunal must consider the primary and other considerations set out in the Direction, that are relevant to his circumstances.
PRIMARY CONSIDERATIONS
Primary consideration: Protection of the Australian community
Paragraph 8.1(2) of the Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
WMDG’s offending
Documents produced under summons reveal that WMDG appeared before the Magistrates’ Court of Queensland on a charge of Breach bail undertaking. Other documents before the Tribunal indicate that WMDG was also fined for a speeding offence on 24 May 2005 of Exceed speed limit in speed zone by at least 13 km/h and not more than 20 km/h. He was fined $150 and awarded three demerit points.
On 7 August 2005, WMDG was convicted of two other driving offences: Drive motor vehicle etc over general but under high alcohol limit and Driving without a licence. A bench warrant produced under summons indicated that WMDG was released on bail on entering an undertaking to appear before the Magistrates’ Court in September 2005; which he failed to do. In September 2005, he appeared before the Court on the charge of Breach bail undertaking. No conviction was recorded and WMDG was fined $180 and, in default, three days’ imprisonment.
In April 2019, WMDG was before the Magistrates’ Court of Victoria. He was convicted of five offences. In chronological order, he was convicted of three offences committed between January and May 2018: Sexual assault of a child under 16 years (Incident One); and two counts of the offence of Sexual activity in the presence of a child under 16 years of age (Incidents Two and Three), committed in the same period.
On the same day, he was also convicted by the Court of the offence of Sexual activity directed at another person that would experience, or will probably experience, fear or distress from seeing the activity, and the offence of Commit indictable offence on bail. The date of the last incident was July 2018. The bail offence was incurred because WMDG had already been charged with the offending in Incidents One to Three and been bailed.
Before the Tribunal was the Magistrates’ Court transcript of proceedings for April 2019. The learned Magistrate (GD, pp 43-53) did not go into detail about the offences but remarked that WMDG knew what he did was wrong, and the Applicant agreed with His Honour.
The Magistrate noted that WMDG had spent 262 days in custody prior to the Court appearance, which was eight months and 19 days. He was sentenced to six months’ imprisonment in relation to Incident One but, as he had already served longer on remand, the Magistrate ordered that to be counted as time served, and he was immediately released. However, the transcript recorded that the Magistrate asked for a comprehensive pre-sentence report.
There were special features in relation to the offending. WMDG had no prior offending. The Magistrate referred to him having an Intelligence Quotient (‘IQ’) of 58. The Magistrate placed WMDG on a Community Corrections Order (‘CCO’) for 18 months with judicial monitoring. He was ordered to have assessments for drug problems, alcohol problems and mental health problems. The Applicant’s solicitor advised the Court that WMDG would face an assessment for accommodation in a Victorian Department of Justice facility for persons with disabilities. The Magistrate was of the view that, because of WMDG’s IQ level, while the protection of the community was significant, so also was the moral culpability for the offending. The Magistrate noted that WMDG would be placed on the Victorian Sex Offender Register for 15 years.
The Tribunal generally relies on Court findings which detail the circumstances of the offences of an applicant. Because the Magistrate did not go into detail, Ms Polese took WMDG through the Police Preliminary Brief. WMDG did not deny any of the details as they were read to him and translated, and I am satisfied that the Police Preliminary Brief can therefore be relied upon to accurately reflect each incident.
Incident One
WMDG was staying overnight at the residence of his cousin and his cousin’s wife. He was staying in the same room as two of their children – a girl aged five and a boy aged six. The children were on bunks, the boy on the top bunk and the girl on the bottom one. During the night, when their parents were asleep, he kissed the girl on the lips and put his tongue in her mouth. He put his hand inside her pants and touched her on and around the outside of her vagina. He then exposed his penis and showed it to her. He fondled himself in front of her. This founded the offence of Sexual assault of a child under 16 years.
Incident Two
WMDG was again staying overnight at the same residence, and again in the same room as the same two children. During the night, when their parents were asleep, he exposed his penis to the female child and fondled himself. This founded the offence of Sexual activity in the presence of a child under 16 years.
Incident Three
Again, WMDG was staying with the same people. He knew the adults were asleep. He exposed himself to the same female child and fondled himself in front of her in the presence of her brother, who was on the other bunk. This founded the offence of Sexual activity in the presence of a child under 16 years
It appears that the offending came to light after the female victim made mentions of the incidents to a family friend and then to her grandmother. When their parents confronted WMDG about the allegations, he denied the offending and then said that he was sorry and asked for forgiveness.
WMDG was asked to attend a police station by appointment. He was interviewed in July 2018. He made admissions and said that the male child was asleep on a bunk in the same room during the offending. WMDG was remanded, entered prison in July 2018 and appeared before the Magistrates’ Court in April 2019.
Two days before he was remanded, WMDG committed another offence. I will call this the ‘Railway station incident’.
Railway station incident
The Victoria Police brief (GD, p 54) sets out the details of the offence. The Applicant was questioned during the hearing and did not contest any of the salient details. A female adult arrived at a suburban railway station in Melbourne. She went straight to the female lavatories. While she was standing in front of the mirrors, she heard a noise and noticed WMDG standing in the doorway, watching her.
The complainant walked out of the lavatories past WMDG and moved down the platform. She felt concerned because the Applicant was watching her. Shortly after, she noticed he had followed her down the platform and was standing near to her. He had exposed his penis and was masturbating.
The complainant contacted emergency services by telephone. WMDG immediately stopped masturbating. Police attended the station and located WMDG based on the description the complainant had given. WMDG was conveyed to a police station and charged with the offence of sexual activity directed at another person. He was remanded in custody to appear before the Magistrates’ Court. WMDG was sent to Ravenhall Correctional Centre.
Before the Tribunal was a short report by a corrections officer at Ravenhall dated April 2019. The officer wrote that WMDG was residing in a lodge which is provided to well-behaved prisoners as a privilege. He said (GD, p 190):
He mostly keeps to himself, is always well behaved, talks politely to the officers as well as fellow prisoners. WMDG maintains positive behaviour. He follows unit rules and always stays out of trouble.
There is no doubt that the Applicant’s offending, although confined in terms of the dates of the incidents, is very serious. His offending against his young relative by touching her and then exposing himself in front of her was done when he knew her parents were asleep and when he also knew they trusted him to sleep in the same room as their young son and daughter.
The Applicant’s significant intellectual deficit is relevant in his offending, as acknowledged by the learned Magistrate. But it is clear to the Tribunal that he knew what he did was wrong. He admitted as much to the police when he was interviewed and made admissions. It is also clear to me that when the female victim told a family friend about what had occurred, she first said WMDG kisses her while she was sleeping. Three months later, she told the same family friend she would whisper a ‘secret’, and that WMDG kisses her while she was asleep. The friend then told the victim’s mother. She also told an uncle she did not like WMDG. When the uncle asked why, it was reported that WMDG, who was present, caused a distraction to end the conversation. For a child of that age to say that something was a secret makes me satisfied that either the Applicant told her not to tell anyone else what had taken place in the bedroom, or otherwise she knew that it was something to keep from other adults because of WMDG’s conduct or intimation.
Sexual offending of any sort is serious because it axiomatically means violation, to some degree, of another person without that person’s consent. When the victim is a child, it is even more serious because the child does not, in law, have the capacity to give consent. In this case, while there was only one incident of physical touching, there were two other incidents on different dates of the Applicant exposing his genitals to a child. It would appear from the documents before the Tribunal that the male child on the top bunk was asleep during these incidents, but that is not material to the convictions for sexual activity in the presence of a person under 16.

In terms of assessing risk, the Tribunal accepts the submission of counsel to the Magistrates’ Court, that there was a medium risk of WMDG re-offending at the time of his sentencing. That appears to have also been the Magistrate’s conclusion, because he decided to impose a CCO, rather than impose more gaol time. As His Honour remarked, “It’s not the role of this court to warehouse people in correctional facilities when they shouldn’t be there”. That risk has abated somewhat by his compliance with the conditions of his CCO, including attending psychological counselling and his positive response to judicial monitoring, which led to His Honour ceasing it.
There are certain protective factors which are relevant to assessing risk. These include the Child Protection Safety Plan that is in place, and which WMDG understands; his fortnightly visits to a psychologist; separate visits to his National Disability Insurance Scheme (‘NDIS’) Support Worker; and his continuing to be on the Sex Offender Register for around another decade.
At the Directions hearing for this matter on 19 August 2022, the Tribunal queried how it was that the Applicant was not in detention and asked the Respondent’s representative at that hearing whether he was on a bridging visa or whether the Minister might have made a residence determination about him. On 22 August 2022, the Respondent’s solicitors advised the Tribunal that WMDG does not hold a bridging visa and is not subject to a residence determination and stated, “the applicant is liable to be detained in immigration detention, although he has not yet been detained.”
This is relevant because of the obligation of Department officers under s 189 of the Act, which provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. The Tribunal surmises that there might be practical reasons that the Department has not met the requirements of this part of the Act; possibly because of the special needs of WMDG, which may not be able to be catered for in a detention centre. But in that case, a residence determination would usually be made. The Tribunal can make no finding on the actions of the Department but does remark that it contributes to a conclusion that the Respondent does not consider the Applicant poses an imminent danger.
I conclude that this consideration weighs against restoring the visa, because of the nature of the offending relating to the Applicant’s female first cousin once removed. It may be that she carries some residual memory of what went on. I cannot form a view about her brother, because while he was present in the bedroom, there is no evidence he was awake. Nonetheless, in terms of the elements of the offence, that is not relevant to the fact of the conviction. It is only relevant in terms of any enduring harm.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that 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. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Ms Polese asked WMDG why did he think what he did was wrong. He responded: “They were just little kids. I don’t want to look back. I want to renew my life.”
The Tribunal asked WMDG how he thought his conduct had affected the children. He responded: “I know what I did was wrong. I don’t want to think about it. I have changed.”
WMDG was then asked about the Railway Station Incident. He said he had not seen the female complainant before. He accepted the details of the incident as read out to him in the police brief. The Tribunal asked him what he felt about what happened that day. WMDG responded: “I knew I was wrong. I did not know what I was doing. I was scared when the police came”. He agreed that, at the time, he thought what he was doing was wrong. When asked why he was scared when the police came, the Applicant said it was because he knew he would be taken into custody.
When asked what his relationship with these children now was, WMDG said he was not allowed to go to their house. He said he had had no contact with the children’s father, who I will call CT, or their mother, since his arrest.
WMDG was asked whether he understood what he was required to do by the Safety Plan instituted by Child Protection. He responded that he knew he could not visit his sisters’ houses, and instead, he would meet them either in a park or for shopping.
WMDG said that he attends church every Sunday and had attended church growing up in Samoa but did not do so when he was living in New Zealand. In terms of alcohol, WMDG said that he first started drinking at the age of 18. He said that the last time he had taken alcohol was ‘three or four years ago’. He said he did not go back to drinking alcohol or taking drugs after he was released from prison.
Ms Polese asked WMDG about an incident when he was in prison, where officers thought a container he had was being used for making “homebrew”. WMDG said he was using it to make milkshakes, but that officers thought it was for home brew.
When asked about his illicit drug use, WMDG said he used to “smoke weed, but no other drugs. A long time ago”. He said he did not smoke marijuana when he was in New Zealand, and then estimated that he last smoked it one year ago.
The Respondent asked WMDG if he knew that completing his CCO meant that he could now have alcohol. He said “No”. In respect of the Sex Offender Register, WMDG said he knew he was on the register for about another 11 years. When asked what he understood about the requirements of the Register, WMDG said he knew that he had to tell the police his address and if he got a new tattoo.
WMDG was asked about the 2008 offence for driving without a licence. He said he had never had a driver licence in Australia, though he did have a learner’s permit in Queensland at the time.
WMDG was asked about former romantic relationships. He remembered one girlfriend who he said he went out with for three years, but when two other names were suggested to him, he said he did not know them.
In terms of his current accommodation, WMDG said he lives in a Melbourne suburb in a block of nine apartments. He said that the residents all share a common laundry, but each apartment is self-contained with its own kitchen and bathroom. When asked if it was a private rental, WMDG responded, “Yes, Centrelink pays the rent”. When asked how he pays the landlord, he said that was set up automatically. In respect of other utility bills, WMDG said, “I pay $600 per fortnight for everything – water and power and wi-fi”. He said that arrangement ‘came with the apartment’.
WMDG said he talks to his NDIS Support Worker (Mr Hewa) every two weeks, “he helps me make appointments and all that stuff.”
The Respondent asked WMDG whether he saw Ms Amanda Douglas, the psychologist. He said he sees her once a week about “private stuff. I can’t tell”. Ms Polese asked WMDG whether Ms Douglas ever talked to him about his offending. He responded: “Yes. She gave me advice”, which he said, in response to a direct question from the Tribunal, he found helpful.
WMDG said he spends that part of his Disability Support Pension (‘DSP’) and employment income that is not otherwise committed on “food and clothes and things for the dishwasher”. When asked what he did with his free time, he responded, “I play PlayStation, go shopping, be happy and all that stuff”. He said he had no friends but agreed that his sisters help him with shopping. He said he liked being on NDIS but did not know what support he received through that Scheme.
The Tribunal formed a view that, on occasion, WMDG was unresponsive during his evidence, and that he gave answers that were plainly wrong, as they were at odds with other documented facts. However, I did not consider that he was being untruthful or deliberately evasive. He did not cavil with the details of the sexual offending, which were carefully put to him by the Respondent’s solicitor. He said several times that he was ashamed and knew it was wrong.
I have formed the same view as the learned Magistrate, that WMDG’s moral culpability for the offending is affected by his significant and documented intellectual deficits. However, he is not someone who did know that what he was doing was wrong. In the case of his female cousin victim, I am satisfied that he did know. His offending at the railway station is somewhat inexplicable because it was blatant, in broad daylight at a busy time of the day and appears to have been opportunistic. It certainly illustrates a person who did not understand social cues or the complete inappropriateness of his conduct.
I conclude that there is little risk of general offending. Putting to one side the Queensland traffic matters, there is no evidence of any offending by WMDG in a general sense in Australia. In terms of sexual offending, I conclude there is a moderate to low risk so long as the protective factors of regular engagement with a psychologist and the NDIS continues. The evidence of Ms SA was that she and her older sister, Ms OS, should have been more supportive of WMDG because she felt that he might not then have offended. I am not so sure this is the case. But, certainly, greater family support would be an additional protective factor. The Tribunal places no weight on the evidence that WMDG is a regular attendee at a Samoan Church near where he lives. From the evidence, he has maintained this practice for many years, and it did not prevent him from committing the sexual offences.
In the hearing, the learned Magistrate remarked that protection of the community is significant in matters of this nature, but also the moral culpability of the offender. He said (GD, p 51):
Verdins applies to [these] particular matters in so many ways given his IQ of 58. In those circumstances general deterrence plays little part in my decision in this matter particularly as there is no prior history of this nature. That’s the reason I’m imposing the sentence I am.
His Honour was referring to the Victorian Court of Appeal decision in R v Verdins &Ors [2007] VSCA 102, where the Victorian Court of Appeal stated that mental impairment was relevant to sentencing in at least five ways. These are known as the ‘Verdins Principles’.
In summary, the Verdins Principles could reduce the offender’s moral culpability (but not his legal responsibility) for the offence. This could affect the weight given to just punishment and denunciation as purposes of sentencing. The Verdins Principles can influence the type of sentence imposed and any conditions applied; reduce the weight given to deterrence as a purpose of sentencing, depending on the nature and severity of the mental impairment and increase the hardship experienced by the offender in prison. The Verdins Principles can also and justify a less severe sentence where there was a serious risk that imprisonment would have a significant adverse effect on the offender’s mental health.
It is well established that the Tribunal cannot go behind the imposition of a sentence where to do so would impugn that sentence. The Respondent rightly said that WMDG was given a sentence of six months’ imprisonment, and that imprisonment is the most serious sentencing tool available to a judicial officer. It is, therefore, clear that the Court considered the Applicant’s conduct serious.
Regrettably, the Magistrate did not set out the offending or make any findings about it, in the circumstance that WMDG had pleaded guilty, and a large portion of the hearing was concerned with the Court being satisfied that arrangements were in place for WMDG to move into a Victorian Department of Justice residence for persons with intellectual disabilities. The relevant part of the transcript is (GD, pp 49-50):
HIS HONOUR: WMDG, I won’t go into great detail about the offences. I do know from what I’ve read that you know what you did was wrong ….
WMDG: Yep.
HIS HONOUR:…and therefore you’re not going to repeat it. You’ve spent 262 days in custody. Today I’m going to release you. It will be difficult when you go back into the community to do the right thing. You will need to rely upon people to assist you and that will start from the time you leave Ravenhall.
…
HIS HONOUR: On all the charges you’re convicted and placed on a Community Corrections Order for 18 months. You will have assessment and treatment for drug problems, alcohol problems, mental health problems. You follow the directions of the people. What they’re advising is in your best interests and the community’s best interests. There’s also offending behaviour programs you’ll be directed to do and that will look at the behaviour that led to you being in custody. You’re also going to come back to see me in only one months time…for what’s called judicial monitoring. I want to make sure, and I’ll be keeping an eye on you, that you are following and doing the things you’re asked to do….I’m going to keep a close watch on (1) your behaviour and your attitude, but also, (2) the services that are being offered to you and should be offered to you. Are you prepared to sign that order?
WMDG: Yes. Yes, Your Honour.
In assessing risk, it is relevant that WMDG’s sexual offending was confined to the period between January and July 2018. There is no evidence of any prior, or subsequent, offending of any sort, except for the traffic offences referred to above. In his oral evidence, when the details of the offences were put to him by the Respondent, WMDG accepted them completely and said that he was ashamed of his behaviour.
A certain amount of WMDG’s evidence was, to the Tribunal’s mind, unsatisfactory. He had difficulty in recalling events, and his understanding of temporal periods was frequently at odds with other material. For instance, in answer to questions from the Respondent he agreed that he worked at a chicken factory. He thought he commenced work there in 2006 ‘maybe’ and said he worked there for ‘10 years’. One question later, he then agreed that he left Australia in 2009 and returned to New Zealand. He said he went there for a ‘holiday’ but could not remember where he stayed. Ms Polese noted that he did not return to Australia in 2016. WMDG responded: “Can’t remember. I stayed there for three years”. The Tribunal then told him that the movement records, which showed his arrival in and departure from Australia, showed that he left in 2009 and returned in 2016. WMDG then said: “Yes. I used to work in a Turkish bread shop, in a bakery”. He agreed that he lived with an uncle in New Zealand, but he could not remember the uncle’s name. He did not remember where he lived in New Zealand.
The Tribunal notes that inconsistency with dates and facts may be a characteristic of WMDG’s cognitive deficit. In a forensic report prepared for the Court (SGD, p 28), WMDG had told the authors that his father was previously employed as a Court typist. When the Tribunal asked this directly of Ms SA, she said her father had been a fisherman. In the same report, WMDG reported he missed his father and had not seen him since he came to Australia. However, medical reports from 2016 noted he had been back to Samoa in 2011 and/or 2016. In evidence before the Tribunal, WMDG also said he had not been back to Samoa.
WMDG also stated in response to direct questions from the Tribunal that he worked ‘full time’ at a timber packaging firm at present. He said his daily hours of work were ‘6.30 to 3.15’. Allowing an hour for lunch, that is a seven-hour 45-minute day, or 37.25 hours a week. WMDG then said that he needed to visit Centrelink once a week to report his hours of work in respect of his DSP.
The Tribunal considers that these two claims are somewhat inconsistent, because the grant of a DSP is based on a person’s inability to work. The Tribunal consulted with the Social Security Guide produced by the Department of Social Services. The guide states, at part 1.1.M.30, that a person may allow a DSP claim to be determined based on presenting medical evidence without the need for further assessment. It continues:
Manifest grants may only be made where a person….has an intellectual disability where supporting evidence clearly indicates an IQ of less than 70
The Respondent did not contest WMDG’s evidence that he attends Centrelink regularly to report his hours of work, but the Tribunal notes that the maximum hours a DSP recipient can work without losing their DSP is 29 hours a week. As there is no evidence before me that WMDG has lost his DSP, I conclude that the Applicant’s concept of ‘full-time’ work is 29 or fewer hours a week.
The Tribunal also notes that WMDG is a participant in the NDIS (GD, p 177). At the time he commenced in the NDIS, he was living in a group house, but remarks (GD, p 182) that he had been successful in private rental and would be moving into his new accommodation soon. He relevantly wrote: “One of my goals is to build my daily living skills to enable myself to live independently.”
Before the Tribunal was a letter dated 11 May 2021 from his then NDIS Support Coordinator, Mr David Merlo. Mr Merlo relevantly wrote that he links WMDG with support with assistance in self-care, psychological services, occupational therapy services and other allied health professionals. He said that WMDG is ‘proactive in engaging with his supports’.
At GD pp 201-202 was a letter from Ms Amanda Douglas, psychologist, dated 3 May 2021. Ms Douglas relevantly wrote:
WMDG was involved with the Disability Justice team, following several sexual offences committed and having been identified as an individual with an Intellectual Disability. During his involvement with the Disability Justice team, he was also living in a forensic Supported Independent Living facility. He has since moved to another environment, following the completion of his Community Corrections Order. He continues to receive psychological intervention and other supports, funded by his NDIS plan. Other supports include Occupational therapy, assistance with daily living tasks and community access support.
In my last letter, I wrote that WMDG had agreed to a psychological assessment regarding his adaptive abilities and agreed to participate in intervention that focused on understanding interpersonal relationships, boundaries, safe sexual behaviours, expression and education. Since that time, WMDG has continued to participate in psychological intervention that has focused on these areas. Collaboratively, we have worked to identify various interpersonal boundaries in a wide range of situations and have explored sexual relationships with others. We have used a variety of visual aids and alternative platforms that have allowed him to strengthen his understanding in these areas…[including] educational scenarios. For example, ‘understanding feelings associated with sexual relationships’, ‘masturbation is a private behaviour’, ‘making a space private’ and consent related topics, to name a few. WMDG participated and demonstrated appropriate understanding for all the educational topics we embarked on. We also applied the knowledge from this topic to his in vivo experiences to fortify his learning. He has been receptive to all these learnings and has agreed to continue participating in psychological intervention.
…
WMDG has a regular standing appointment once a fortnight to see [me]. He has missed a recorded number of three sessions since our commencement. The likely reasons for missing sessions relate to his intellectual difficulties of planning and time management. He has agreed to work collaboratively with his other supports to improve these areas also.
Ms Douglas wrote a further letter dated 19 August 2022 (Exhibit A2) to provide a treatment review for WMDG. She relevantly wrote that when he first presented, he had an intellectual disability and symptoms consistent with Generalised Anxiety Disorder. She wrote that WMDG had interpersonal troubles with reported and observed difficulties in (a) initiating conversation with others; (b) understanding social cues; (c) assertiveness communication deficits; (d) poor ability to instil boundaries with others and understanding boundaries with others. Ms Douglas gave as an example that WMDG reported giving large amounts of money to others upon their requests.

On returning to Australia in 2016, WMDG said he lived with his sister, Ms OS, but he could not remember for how long and where he was living in 2017 and 2018. He did agree that he was living with his sister in a rural city in Victoria. He agreed that he used to visit his cousin, CT, and his wife for weekends in 2017 and 2018.
WMDG agreed that during these weekend visits, he would sleep in the same bedroom as two of CT’s children, aged five and six. WMDG said he could not remember what his relationship was like with the children but agreed he would ‘hang out’ with the family.
WMDG was taken through the details of Incident One. He said he ‘felt sad’ and ‘felt bad’ at the time. He did not know whether the female victim would remember what happened and said he had not thought about that. He agreed the other adults were asleep. Ms Polese took WMDG through the stated facts for Incidents Two and Three, which he accepted. When asked whether CT and his wife asked him whether he had done these things in front of their children, WMDG said he could not remember.
When asked how it came to be that people found out what happened, WMDG said he did not remember. When asked directly by the Tribunal whether he remembered going to the police station, WMDG responded: “Yes, and made full admissions. Their parents went to the police”. He said he did not tell the children’s parents and then said, “I don’t want to defend it. I just want to change my life.”
There is no doubt in the Tribunal’s mind that the repetition of any sexual assault of a child would be conduct that causes very serious harm. In the circumstances of this particular case, the Tribunal must examine the risk of re-offending in general, as well as the risk of WMDG re-offending in terms of sexual crimes.
I conclude that this consideration weighs against restoring the visa, because of the nature of the offending relating to the female first cousin once removed. It may be that she carries some residual memory of what went on. I cannot form a view about her brother, because while he was present in the bedroom, there is no evidence he was awake. Nonetheless, in terms of the elements of the offence, that is not relevant to the fact of the conviction. It is only relevant in terms of any enduring harm.
Primary consideration: Family violence committed by the non-citizen
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The delegate who made the reviewable decision considered that this primary consideration was not engaged.
The RSFIC contended that this primary consideration is, in fact, engaged, saying “that is because the victims are the applicant’s cousins and therefore family members and the conduct involved coercion or control of the child victims”. When closing submissions were made, the Tribunal queried this contention, and asked Ms Polese whether the Respondent was saying that the two victims are family members. The solicitor for the Respondent said that was their contention, and that was the extent of their instructions.
The Direction provides, at paragraph 4, that ‘family violence’ means violent, threatening, or other behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples are then given, including, at paragraph 4(1)(b) a sexual assault or other sexually abusive behaviour.
What troubles the Tribunal is that the term ‘family member’ is not defined in the Direction. As the Direction is made under s 499 of the Act, resort may be had to s 5G of the Act, which has the heading ‘Relationships and family members’ (see Deng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456, at [140] ‘Deng’)).
Section 5G(2) states:
(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA.
(c) anyone else who would be a member of a person’s family or a relative of the person if someone in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
In this case, two of the victims of WMDG’s offending were his five-year-old female first cousin once removed and her six-year-old brother. In Deng, Justice Halley said, at [149] that there is a distinction between being a family member and being a relative of a person in approaching this primary consideration. His Honour said “The touchstone is being a “member of the person’s family. The specific focus on what might be characterised as the family or household unit rather than some broader concept of extended family or relations” is apparent from items (g), (h) and (i) in paragraph 4(1) of the Direction.
His Honour went on, at [156]:
Given the absence of any explicit definition of the expression in Direction 90, the seriousness with which “family violence” is treated in Direction 0- and the inclusive definition of “members of a person’s family” in s 5G(2) of the Act, I am satisfied that the expression “member of the person’s family” in Direction 90 should not be narrowly construed and should not be limited to close relatives and de facto partners of the non-citizen. Rather, in my view the expression is apt to also capture persons that might be living together in a household, providing companionship and emotional support to each other, sharing expenses or otherwise being financially dependent upon each other and in a relationship or mutual affection or obligation. It could, by way of example, extend to a child living with an uncle or an aunt for an extended period or to persons who are in an intimate relationship that are living together but to not satisfy all the criteria of a de facto relationship… Such persons would be particularly vulnerable to coercion or control by the non-citizen or fearful of behaviour of the non-citizen.
Justice Halley concluded that ultimately whether a person falls within the expression “a member of the person’s family”, for the purposes of the family violence consideration in the Direction, is a matter of fact to be determined by the decision maker.
There are certain uncontested facts in this case which support my conclusion that the child victims in Incidents One, Two and Three, although first cousins once removed, do not fall within the scope of this primary consideration intended by the Direction. WMDG did not live in the same household as the victims. His evidence is that he would occasionally visit for weekends. His sister who gave evidence, Ms SA, said that she and Ms OS were not close to this side of the family. In her evidence, Ms SA said: “That side of the family we never get to see. We just know they are here. WMDG was friends with the children’s Dad.”
When pressed on whether she knew CT or his wife, Ms SA responded: “They are from mum’s side. CT is mum’s brother’s son. We only see mum’s uncle, but not them.”
WMDG in his own evidence said that he visited CT and his wife and family, but neither of his sisters did.
My view is that when a victim is not clearly within the scope of the stipulated relationships set out in s 5G, the relevance of this primary consideration should properly be looked at through a lens of proximity, and the nature of the relationship. Is the victim of the violence someone with whom the perpetrator has either an intimate or a familial relationship in the sense of living in the same household? The example in Deng of, say, a child living with an uncle or an aunt, would fulfil the definition. It would appear to me that WMDG’s offending was opportunistic in the sense that it was unlinked to the fact that the victims were the children of his cousin. I consider that, had the parents of the victims been, say, trusted long-standing friends who had no reason to believe that they would be vulnerable if WMDG slept in their room, the offending could well have still occurred. There was no special feature of this offending because the victims were first cousins once removed.
The decision in Deng was overturned by the Full Court of the Federal Court in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115, but on grounds other than the conclusions Justice Halley came to which I have set out above.
I am not satisfied that this primary consideration is engaged. I find that it therefore weighs neutrally. Nothing in that conclusion should be taken as detracting from the nature of the sexual offending against the child victims, which the Tribunal views very seriously.
Primary consideration: Best interests of minor children in Australia affected by the decision
The Direction requires decision-makers to make a determination as to whether the cancellation of a visa is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
WMDG has no children of his own. In his oral evidence, WMDG said that his sister, Ms SA, has three adult children, aged 20, 19 and 18. They, therefore, no longer come within the purview of this primary consideration. Regarding his other sister, Ms OS, he gave evidence that she had seven children, but he did not know their ages. Other evidence before the Tribunal suggests that six of these children are minors: in age order 17, approximately 11, approximately nine, approximately eight, approximately seven and approximately four years.
WMDG formerly lived in the same household as these children. There is no evidence before me that he had other than a loving avuncular relationship with them, but he does not fulfil a parental role. I conclude, mainly because of the submissions of Ms SA, that WMDG’s minor nieces and nephews would miss him if he was deported. I make a determination that it is in their best interests that the visa is restored.
However, while I conclude that this primary consideration weighs in favour of the Applicant, that weight is not significant because of his non-parental relationship with them. For the avoidance of doubt, I do not consider the Safety Plan is significant in assigning weight because it only has a geographical effect, and the evidence supports a conclusion that he sees these minor children on a regular basis in public places. There was no evidence from Ms SA of any concern for the safety of these children.
Primary consideration: Expectations of the Australian Community
Paragraphs 8.4(1) and (2) of the Direction state:
(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, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of 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.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, among others, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. WMDG has committed serious crimes against children and a sexual offence where the complainant was a woman. The other categories are not relevant.
The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; that is, they are what the executive government has declared are its views, and not what the Tribunal may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
WMDG has committed offences against two children. In one case, it involved a physical assault. Although this offending was relatively isolated, I conclude the Australian community would view it very seriously.
While fully informed community members may take into account the Applicant’s established significant intellectual disability, that would only dilute the general view that this offending, where WMDG knew he was doing wrong, is very serious.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Other consideration: International non-refoulement obligations
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
The Respondent submitted that this consideration is not engaged. The country of reference, given the category of visa WMDG previously held, would be New Zealand. There is no evidence before the Tribunal on the facts of this case that any of the provisions of these international treaties would be engaged. The Tribunal finds that this consideration weighs neutrally.
Other consideration: Extent of impediments if removed
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face, if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language, or cultural barriers and social, medical, and/or economic support available to him if repatriated.
WMDG appears to be in good physical health, although there is evidence of some difficulties with one leg, and he confirmed to the Tribunal that he sometimes must wear a surgical stocking. He is in accommodation arranged for him in a block that also accommodates others with similar special needs. He holds an Australian DSP. He has been admitted to the NDIS. The Tribunal considers that WMDG would not face any significant language or cultural barriers if he was deported to New Zealand. While he might be lonely, there is some evidence that the aunt who originally adopted him and his sisters, and brought them to Australia, has returned to live in New Zealand. It was not clear whether she had returned to New Zealand permanently. There is a significant Samoan community in New Zealand, especially around Auckland, within which WMDG might potentially find support.
What concerns the Tribunal is the capacity of WMDG to negotiate government support to replace the support he receives in Australia if he is deported. Many things are done for him: his accommodation was arranged, and the rent is automatically deducted from his benefit. His utility bills are similarly automatically paid through a fortnightly general fee. The Tribunal asked WMDG directly if, for instance, he wanted to buy a television and if he would feel comfortable doing that. He said he would. However, the evidence of Ms SA points the other way. She visits him most weekends and takes him shopping. His other sister reportedly also takes him shopping on a less regular basis. He says his NDIS Support Worker, now Mr Hewa, makes the appointments for him that he needs.
Ms Polese submitted that it was accepted that WMDG would experience some difficulties on return to New Zealand, but that the supports available to WMDG would be ‘the same or equivalent’ in New Zealand. In the evidence was material about Whaikaha – the Ministry of Disabled People, an agency of the New Zealand Government. The Respondent also drew the Tribunal’s attention to the NZ Ministry of Health Office of the Director of Mental Health Annual Report, noting that the Ministry has an information-sharing arrangement with Australia. On page 12 of the Annual Report, under the heading ‘New Zealanders returning from Australia’, it states (SGD, p 1085):
During 2016, the New Zealand Government and the Australian Government conducted their first annual review of the information -sharing arrangement with the Australian Government around removals and deportations between Australia and New Zealand. The Ministry of Health is an ‘approved agency’ under this arrangement: it may receive advance notice of New Zealanders being deported, including their health information, to identify significant mental or physical health needs that will require a health response on their return.
While the Tribunal accepts that Whaikaha provides support for persons with disabilities in New Zealand, which may be broadly comparable to the NDIS in Australia (this is the assertion of the Respondent, but with no detail), the yardstick in the Direction is to measure what is available to the non-citizen on return to their home country against what is available to other citizens of that country.
I accept there is a suite of Government supports that would be available to WMDG in New Zealand. However, the extract from the Annual Report quoted above, and in the RSFIC, does not really say much It simply says that the Ministry ‘may’ receive advice of a returnee with special needs. There was no other material before me on what the actual Department practice is.
I consider that the impediments, if removed to New Zealand for WMDG, would be significant. He has around him in Australia, through the NDIS and his DSP, a combined architecture that supports him financially and gives him accommodation. He has employment here. Crucially, he has built rapport with a psychologist, which contributes to a better appreciation of what is appropriate prosocial conduct, and what is not. His two sisters are here. His only other close relatives are his father in Samoa and two brothers, one in Samoa and one in American Samoa.

WMDG’s IQ is 58. This places him in the 0.3 percentile of the general population (SGD, p 44). This immutable fact is a special feature which leads me to find that, whatever is the level of welfare and other supports available to him in New Zealand, he would have significant difficulty navigating them. I am not confident that he could, for example, open a bank account or arrange a lease for accommodation. Without familial support, he may have difficulty shopping for everyday needs. WMDG expressed the view that he did not want to go back to New Zealand because there were ‘people who took drugs’ there. My considered view is that, with his vulnerabilities, he would be likely to fall back into alcohol abuse and illicit drug use, and therefore an increased likelihood of offending.
This consideration weighs strongly in favour of restoring his visa.
Other consideration: Impact on victims
The Tribunal interprets this part of the Direction as meaning evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. There is no such evidence before the Tribunal, so this consideration weighs neutrally.
Other consideration: Links to the Australian community
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal 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 the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
The Applicant first came to Australia in 2000 when he was adopted by his aunt, following his mother’s premature death and his father remarrying. He was then aged 15. From then until 2009, when he was aged 23, he resided in this country. He then departed for New Zealand, returning in 2016 aged 30. He has two sisters who live here. He has nephews and nieces here. Of his direct family outside Australia, as mentioned above, his elderly father and one brother live in Apia; he has another brother who lives in American Samoa, and the aunt who adopted him currently resides in New Zealand.
The Respondent accepted that WMDG’s sisters would be affected if their brother’s visa was not restored. The Minister submitted he could keep in touch with them by electronic means, or they could visit him in New Zealand. The Tribunal notes that Ms SA has had significant health issues, including a kidney transplant, but there was no evidence before me that the Applicant’s sisters could not travel.
WMDG said he had no friends here; although he is a regular churchgoer, neither he nor Ms SA gave any evidence about any friends he has made in the Samoan Church community in Victoria he attends.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501(2) would significantly compromise the delivery of a major project or important service in Australia.
In Australia, WMDG had a job catching chickens, and then another involved in fitting steel windows. He says he now works at a place which does timber packaging. This employment background is to his credit, given his other challenges. However, I do not consider this record rises to the type of employment or services envisaged which would engage this sub-consideration.
The Tribunal agrees with the Respondent’s submission that this consideration weighs in favour of restoring the visa, and so finds. The weight given is relatively strong due to the reliance that WMDG has on his sisters in his domestic living.
SUMMATION
The Tribunal must weigh all the considerations it has assessed under the Direction individually and cumulatively. It must also take into account any other relevant factor it has identified. No other factor has emerged, nor has been suggested by either party.
In respect of the primary considerations relating to the protection of the Australian community and the expectations of the Australian community, both weigh against restoring the visa. I have found that the family violence primary consideration is not relevant. The remaining primary consideration relating to the best interests of minor children in Australia weighs in favour of WMDG but not determinatively, because he does not perform a parental or day-to-day role in their lives.
Of the other considerations, those relating to non-refoulement obligations and impact on victims have been found not to be relevant. The considerations relating to the extent of impediments if removed weighs strongly in favour of restoring the visa, because of the special features of WMDG’s intellectual disability. The consideration relating to links with Australia also weighs in his favour.
The Tribunal cannot find other than that the offending relating to Incident One is very serious. The other offending relating to the children, while not involving physical conduct, was reprehensible and undermined their entitlement to feel safe and protected by an adult they knew. However, the Tribunal has been reassured by extensive measures that were put in place by the learned Magistrate in relation to WMDG, which appear to have had a positive outcome. The uncontested evidence is as follows. He no longer drinks alcohol. He does not smoke cannabis. He has secure accommodation and employment. In addition, he seems to have come to an understanding about acceptable boundaries of his behaviour, a comprehension underpinned by the Safety Plan and the requirements on the Sex Offender Register, which will persist for more than a decade. When coupled with his significant intellectual deficit, and how that static feature would affect him if deported, the Tribunal decides that the discretion not to cancel the visa in section 501(2)should be exercised. The consequence is that the decision under review will be set aside.
DECISION
Pursuant to section 43(1)(c) of the AAT Act, the Tribunal sets aside the reviewable decision dated 5 May 2022 to cancel the Applicant’s visa. In its place, the Tribunal substitutes a decision that the visa is not cancelled.

I certify that the preceding 140 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................
Associate
Dated: 20 September 2022

Date of hearing:

8 September 2022

Lay Advocate for the Applicant:

His sister, Ms SA

Advocate for the Respondent:

Ms Cassandra Polese

Solicitors for the Respondent:

Minter Ellison

[2022] AATA 3153

20 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	8 September 2022
Lay Advocate for the Applicant:	His sister, Ms SA
Advocate for the Respondent:	Ms Cassandra Polese
Solicitors for the Respondent:	Minter Ellison