Wright and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2680
•30 July 2024
Wright and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2680 (30 July 2024)
Division:GENERAL DIVISION
File Number:2024/2912
Re:Logino Fala Wright
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Hon J Rau SC
Date:30 July 2024
Place:Adelaide
The decision under review is affirmed.
............................[sgnd]...............................
Senior Member Hon J Rau SCCATCHWORDS
MIGRATION – mandatory cancellation of Special Category (Class TY) (subclass 444) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – Applicant convicted of indecently dealing with a child under the age of 13 years – offending involved a serious breach of trust – Applicant’s partner is Australian citizen – Applicant’s two biological daughters are Australian citizens – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
30 July 2024
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 7 May 2024,[1] not to revoke the mandatory cancellation of his Class TY, Subclass 444 Special Category (Temporary) visa (“the Visa”). The visa was cancelled on 19 July 2023 under section 501(3A) on the basis that the Applicant did not pass the character test.[2]
[1] Exhibit 3, G-Documents, G4: Decision made by Delegate under s 501CA(4), 25.
[2] Ibid Attachment C: Notice of Visa Cancellation under s 501(3A), 41-7.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction for ‘indecently deals with a child under 13 years’.[3] He was sentenced to 12 months imprisonment commencing from 27 June 2023.[4]
[3] Ibid Attachment A: National Criminal History Check, 39.
[4] Ibid.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 11 July 2024. The Applicant was self-represented and the Respondent was represented by Mr James Fyfe of Minter Ellison.
The Applicant initially appeared by video via Microsoft Teams, from New Zealand.[5]
[5] He voluntarily returned to New Zealand on 1 July 2024.
The Applicant ultimately gave evidence by telephone, however, as the network service for video appearance was unsatisfactory. He generally responded to questions in a direct manner. He insisted that his conviction was based on a lie. He claimed to be the innocent victim of a false charge. He had suffered and continues to suffer, under the pall of undeserved odium, associated with this conviction.
The Applicant did not call any witnesses. This was unfortunate, at least in the case of his current partner, A V. When asked why she was not called, he said that she works 3 days per week, and she is the only income earner, and “she can’t be here at the moment”. The Tribunal would have been happy to accommodate her convenience had a request to do so been made. It was not. Her direct, tested evidence regarding the Applicant’s 2 daughters, Child C and Child D, and about the prospect of their relocation to New Zealand, would have been very helpful to the Tribunal.
Background Facts
The Applicant was born in 1983 in [X], a dependant territory of New Zealand, in the southern Pacific Ocean.[6]
[6] Exhibit 3, G-Documents, Attachment H: Personal Circumstances Form, 72.
The Applicant is 41 years of age and he is a citizen of New Zealand.[7]
[7] Ibid.
When the Applicant was 8 years old, he relocated from [X] to Samoa with his parents.[8] He lived with his grandparents.[9]
[8] Exhibit 5, Respondent’s Supplementary Document, 10.
[9] Ibid.
When the Applicant was 8 years old, he re-located to New Zealand to live with his two older siblings.[10]
[10] Ibid 11.
The Applicant attended school until year 8, in New Zealand.[11]
[11] Ibid.
In 1996, the Applicant returned to Samoa due to feeling homesick and missing his parents.[12]
[12] Ibid.
The Applicant completed year 11.[13]
[13] Ibid 11 ,23.
In 2000 – 2002, the Applicant studied boiler making.[14]
[14] Exhibit 5, Respondent’s Supplementary Document, 11.
In 2005, the Applicant studied diesel mechanics.[15]
[15] Ibid.
The Applicant has had a consistent work history in various labour jobs in [X], New Zealand and Australia.[16] In Australia he has most recently worked as a FIFO “driller”, in the mining industry.
[16] Ibid.
In 2005, the Applicant met his first partner.[17] It is unclear when the relationship ended. They have a daughter together, namely [Child A]. Child A was born in 2008.[18] Child A is not an Australian citizen,[19] nor is she currently living in Australia.[20]
[17] Ibid.
[18] Exhibit 3, G-Documents, Attachment H, 74.
[19] Ibid 76.
[20] ibid 77.
The Applicant said that he thought that Child A may now be in Tonga. He has no contact with her. The Applicant stated that he has not been in touch with Child A since she was born[21] and he would not be living with Child A if he returned to the Australian community.[22]
[21] Ibid 77.
[22] Ibid 76.
In 2008, the Applicant met S.N (the Applicant’s former wife) and he subsequently married her[23] in [X], in 2010.[24]
[23] Exhibit 5, Respondent’s Supplementary Document, 12; Exhibit 3, G-Documents, Attachment H, 74.
[24] The Applicant’s oral evidence.
On 8 July 2008, the Applicant temporarily visited Australia. He left on 25 July 2008.[25]
[25] Exhibit 3, G-Documents, Attachment B: Movement Records, 40.
On 11 February 2012, the Applicant arrived in Australia[26] with S.N.[27] The Applicant was 28 years old at that time.
[26] Ibid.
[27] Exhibit 5, Respondent’s Supplementary Document, 23; Exhibit 3, G-Documents, Attachment H, 74.
On 13 May 2013, the Applicant was convicted in the Penrith Local Court (NSW) of ‘negligent driving (not occasioning death/ghb)’, ‘learner not accompanied by driver/police officer/ tester’ and ‘drive with middle range PCA’. The Applicant received a total fine of $1400 and disqualified from driving for 6 months.[28]
[28] Exhibit 3, G-Documents, Attachment A, 39.
At some point between about 2 November 2016 and November 2018, the Applicant committed an indecent act on a young girl who was in his care. The victim was aged about 7 years at the time.[29] The Applicant had known the victim since she was about 5. He was a family friend, having played rugby with her father for 3-4 years. He and his former wife had even lived with the victim’s family as their guests, for about 1 year. He told the Tribunal that he considered the victim to be “like a daughter”. The victim and her family are also a part of the small [X] community in Perth.
[29] Ibid Attachment D, 49-51.
The Applicant vehemently denies the offending. He was close to the victim’s family before the allegations were made. When asked about the victim’s complaint against him, he said that he had no idea why “it came into her head to say those things”.
On 9 June 2017, the Applicant was convicted in the Joondalup Magistrates Court (WA) of ‘no authority to drive (never held)’. The Applicant received a fine of $150 and disqualified from driving for 3 months.[30]
[30] Ibid Attachment A, 39.
In the context of this case, I place little weight on the Applicants’ driving offences.
On 19 June 2017, the Applicant left Australia to visit his father in Samoa.[31]
[31] Ibid Attachment B, 40.
On 8 July 2017, the Applicant returned to Australia.[32]
[32] Ibid.
On 28 September 2018, the Applicant took his parents back to Samoa after their Australian visit.[33]
[33] Ibid.
On 3 October 2018, the Applicant returned to Australia.[34]
[34] Ibid.
On this return, the Applicant failed to declare his prior convictions on the incoming passenger card.[35] A.V,[36] on behalf of the Applicant, provided an explanation for his failure, which states: “… Wright has actually informed the officer at the time that he had driving convictions and was told that he was not required to declare that information and was instructed to write his initials next to the correction.”[37]
[35] Ibid Attachment L: Incoming Passenger Card, 97.
[36] Applicant’s current partner.
[37] Exhibit 3, G-Documents, Attachment N: Email from the Applicant’s authorised recipient, 101.
I place little, if any weight, on the Applicant’s failure to make a full declaration in these circumstances.
On 30 December 2018, the Applicant left Australia to again visit Samoa.[38]
[38] Ibid, Attachment B, 40.
On 22 January 2019, the Applicant return to Australia.[39]
[39] Ibid.
On this return, the Applicant again failed to declare his prior convictions on the incoming passenger card.[40] A.V, on behalf of the Applicant, provided an explanation for his failure, which states: “… Wright returned to Australia, he again informed the officer at the time of his traffic convictions and was told the same thing. Hence, why he had ticked 'no' on his declaration form.”[41]
[40] ibid Attachment L, 96.
[41] Ibid Attachment N: Email from the Applicant’s authorised recipient, 101.
Again, I place little, if any, weight on the Applicant’s failure to make a full declaration in these circumstances.
In April 2019, S.N travelled back to Samoa to a adopt a child, namely [Child B].[42] Child B is a relative of S.N’s. S.N and Child B did not return to Perth until 2022.[43]
[42] Ibid Attachment G, 70; Exhibit 5, Respondent’s Supplementary Document, 23.
[43] Ibid Attachment G, 70.
During this three-year period of separation, the relationship between the Applicant and S.N came to an end.[44] The Applicant commenced a relationship with his current Partner, A.V.
[44] Exhibit 5, Respondent’s Supplementary Document, 23.
In the Applicant’s Personal Circumstances Form, he stated that he has not had any opportunity to have a relationship with Child B because S.N discovered his relationship with A.V.[45] He told the Tribunal that he did however make some financial contribution to support them when they were in Samoa. He also contributed to the mortgage payments on a jointly owned property. Contrary to this evidence, his Counsel told the sentencing Judge in his child abuse trial in June 2023 that “unfortunately he’s tried to give financial aid and support to the family but it’s ultimately rejected”.[46] He told the Tribunal he no longer has this property.
[45] Exhibit 3, G-Documents, Attachment G, 70.
[46] Exhibit 5, Respondent’s Supplementary Document, 12.
I note also that his Counsel told the sentencing Judge that: “…he’s had no contact with his adopted child at all… is because Ms [S.N] was, my instructions are, made aware of the allegations and has prevented any contact between Mr Wright and his adopted child”.[47]
[47] Ibid 12.
The Applicant confirmed that he has no contact with Child B and will not be living with Child B,[48] if he is returned to the Australian community.[49]
[48] Exhibit 3, G-Documents, Attachment G, 70; Exhibit 5, Respondent’s Supplementary Document, 23.
[49] Ibid Attachment H, 76.
On 7 June 2020, the Applicant began his relationship with A.V (his current partner).[50] She is an Australian citizen. The Applicant has 2 children with A.V, namely [Child C, aged 3] and [Child D, aged 2 (almost)].[51]
[50] Ibid 75.
[51] Ibid 76-7.
On 4 March 2021, the Police made the first attempt to arrest the Applicant.[52]
[52] Exhibit 7, Summonsed Materials produced by WA Corrective, 44.
The Police attempted to arrest the Applicant on multiple occasions without success.[53]
[53] Ibid 40-4.
On 23 May 2021, the Applicant was eventually arrested and charged with 3 counts of ‘indecently dealing with a child under 13 years’.[54]
[54] Exhibit 5, Respondent’s Supplementary Document, 32.
Details of the three charges are, as follows:
“(1) On a date unknown between 2 November 2016 and 31 November 2020 at [location] Logino Fala Wright indecently dealt with [victim], a child under the age of 13 years, by touching her vagina.
(2) On a date unknown between 2 November 2016 and 31 November 2020 at [location] Logino Fala Wright indecently dealt with [victim], a child under the age of 13 years, by touching her vagina.
(3) On a date unknown between 2 November 2016 and 31 November 2020 at [location] Logino Fala Wright indecently dealt with [victim], a child under the age of 13 years, by touching her thigh.”[55]
[55] Exhibit 5, Respondent’s Supplementary Document, 2, 20.
On 24 May 2021, the Applicant appeared at Joondalup Magistrates Court[56] and subsequently was released on bail, with conditions imposed.[57] These conditions prevented him having unsupervised contact with any child under 16. The practical consequences of these conditions meant that the Applicant has not lived with A.V since his arrest on 23 May 2021. He has never lived with Child C or Child D.
[56] Ibid 39.
[57] Exhibit 3, G-Documents, Attachment D, 52.
The Applicant told the Tribunal that when he was on bail, he either lived with his brother, or in his car.
Child C was born in 2021.[58]
[58] Ibid Attachment H, 76.
Child D was born in 2022.[59]
[59] Ibid.
On 24 May 2023, the Applicant was convicted on Count 1 of ‘indecently deals with a child under 13 years’. He was acquitted on Counts 2 and 3.[60]
[60] Exhibit 5, Respondent’s Supplementary Document, 6, 20.
On 26 June 2023, A.V provided a letter of support to the Court.[61]
[61] Exhibit 3, G-Documents, Attachment I, 85-6.
On 27 June 2023, in the District Court of WA , the Applicant was sentenced to 12 months imprisonment. [62] The court also imposed a permanent violence restraining order for the protection of the victim.[63]
[62] Exhibit 3, G-Documents, Attachment D: Sentencing Remarks of the District Court of WA, 54; Exhibit 5, Respondent’s Supplementary Document, 6.
[63] Ibid Attachment D, 54-5.
The sentencing remarks of Staude DCJ relevantly include the following passages:
“On 24 May this year following a trial you were convicted by the verdict of a jury of one count of indecently dealing with a child under the age of 13 years. That offence was count 1 on the indictment. You were acquitted of two other indecent dealing charges.
Count 1, of which you were convicted, alleged that on a date between 2 November 2016 and 3 November 2020 you indecently dealt with [the victim], a child under the age of 13 years, by touching her vagina.
…
Her evidence was in the form of a child witness interview and evidence given in court that was prerecorded. In her evidence she described the acts alleged in counts 1 and 2 as occurring on an occasion when she slept over at a house that you occupied with your then wife, [S.N]. She, that is, [the victim], described both incidents of touching in exactly the same manner but as occurring at two different times. She rejected a suggestion that she was conflating so that there was only one such incident.
…I am required to make findings of fact for the purposes of sentencing, taking into account the jury's verdicts. On the basis of the jury's verdicts of not guilty on counts 2 and 3 and my own appreciation of the evidence I have concluded that the offence of which you were convicted did not occur as part of a course of conduct that involved numerous similar acts but was isolated and opportunistic.
I am unable to find when the offence was committed with any precision except that it was committed while your former wife was living with you, that is, prior to her returning to [X] in April 2019. The jury can be taken not to have been satisfied beyond reasonable doubt that there were two incidents of touching of the child's vagina.
…
What I find, therefore, is that on an occasion when the child was seven years of age or younger and you were living with your former wife, the child stayed overnight as she would do from time to time, you and your wife being good friends of her parents and being very fond of her. You were treated as uncle and aunt.The offence was committed whilst the child was lying on a mattress on the floor of your and your wife's bedroom. On her account of which the jury was satisfied beyond reasonable doubt, you came into the room and put a blanket on the child and then asked if you could take her pants off. You removed her pants and underwear and touched her vaginal area. There was no penetration of the vagina.
I find that you told the child not to tell anyone what had occurred. Although the child initially described the incident as lasting 10 to 20 minutes her evidence in cross-examination was that it was quick, that is, a matter of seconds.
The maximum penalty for this offence is 10 years' imprisonment. The principal sentencing considerations in matters of this kind are denunciation of sexual offending against children; vindication of the victim; and personal and general deterrence. I find that the child was in a particularly vulnerable position by reason of her young age and her relationship to you. I find that you occupied a position of trust in relation to her.
The offending in this case, although limited to one occasion of touching the vaginal area, was a breach of trust given the responsibility that you had for the welfare of the child while she was under your roof. The offence is also aggravated by your telling the child not to tell anyone about it so as to conceal your wrongdoing.
You are 40 years of age having been born in [month] 1983. You have no prior record whatsoever. You came to Australia in 2012 and to Perth from Sydney in 2014. Your former wife came with you to Australia. In April 2019, as I've mentioned, she returned to [X] to adopt a child. She did not return from [X]. During the time that you were separated your relationship came to an end. You have no contact with her or your adopted child.
In 2020 you commenced a new relationship from which you have two children aged two years and 10 months respectively. Your bail conditions have prevented you from living at home with your family.
You completed school to year 11. You have been in regular employment since then. Prior to your arrest you were working as a drill operator. Up until now you have been employed as a trades assistant. You are in good health although you have suffered from depression since your arrest. You do not have any substance use problems.”[64]
[64] Exhibit 3, G-Documents, Attachment D, 49-55.
As previously mentioned, the Applicant maintains that he is an innocent man, notwithstanding his conviction by a jury.[65]
[65] Ibid Attachment G, 70.
His conviction has split the small [X] community in Perth. He has had no contact with them since.[66]
[66] Exhibit 5, Respondent’s Supplementary Document, 13-14.
The Applicant told the Tribunal when asked about whether he felt remorse: “how can I be remorseful for something that I didn’t do?”.
I note that the Applicant is a reportable offender for the purposes of the Community Protection (offender reporting) Act 2004 (WA).[67]
[67] Exhibit 3, G-Documents, Attachment D, 54.
In answer to a question from the Tribunal, the Applicant denied that he was subject to any order, or other supervision by child protection authorities in WA. He did however mention being the subject of a “PSSO” and “red flags”.
On 19 July 2023, the Applicant was notified by the Department of Home Affairs that his visa was cancelled under s 501(3A).[68]
[68] Ibid Attachment C, 41-7.
The Applicant was invited to make representations about revoking that cancellation decision.[69]
[69] Ibid.
On 27 July 2023, the Applicant made a request for revocation and provided reasons.[70]
[70] Ibid Attachment G, 67-70.
The Applicant also provided a Personal Circumstances Form.[71]
[71] Ibid Attachment H, 71-84.
On 7 May 2024, the Delegate decided not to revoke the cancellation decision.[72]
[72] Ibid G4: Decision of by Delegate, 25; G5: Statement of reasons for decision, 26-37.
On 11 May 2024, the Applicant applied for review of the Delegate’s decision by the Administrative Appeals Tribunal (AAT).[73]
[73] Ibid G2, Application for review of decision, 4-13.
On 16 May 2024, the Applicant signed a ‘Request For Removal From Australia’ form, requesting the Department of Home Affairs/Australian Border Force to remove him from Australia as soon as possible after his release from prison.[74]
[74] Exhibit 1.2, Respondent’s Statement of Facts, Issues and Contentions, Annexure B.
On 24 June 2024, the Applicant provided the Tribunal with the following documents in support of his application:
(a)Character Reference Letter of Mr E.T (a friend of Mr Wright) (undated)
(b)Letter of Mr B.M – from Holyoake (dated 30.05.2024)
(c)Determination of Post Sentence Supervision Order from Prisoner Review Board (dated 23.05.2024)
(d)Individual Management Plan from Department of Justice (WA)
(e)Record of Completion – Plan For Personal Management (dated 14.11.2023)
(f)Certificate of Completion – Active Parenting Course (dated 14.09.2023)
(g)Statement of Attainment – Plan for Personal Management (dated 12.12.2023)
(h)Statement of Attainment – Apply Workplace Health and Safety Concepts (dated 28.02.2024)
On 26 June 2024, the Applicant was released from prison and taken into immigration detention.
On 1 July 2024, the Applicant was voluntarily relocated to New Zealand.
The Applicant does not have any known alcohol or substance abuse issues.[75]
[75] Exhibit 5, Respondent’s Supplementary Document, 11.
Judge Staude noted that the Applicant has suffered from depression following his arrest.[76] In the Applicant’s Personal Circumstances Form, he has not listed any medical or psychological conditions that he is suffering from or receiving any treatment for.[77] The Applicant is generally in good health.[78]
[76] Exhibit 3, G-Documents, Attachment D, 52
[77] Ibid Attachment H, 83.
[78] Exhibit 5, Respondent’s Supplementary Document, 11.
The Applicant has 2 brothers and 2 sisters.[79] The Applicant stated that one of his brothers is currently living in Australia. A sister was residing in New Zealand and another in [X].[80] The Applicant however denied now having any relatives still living in New Zealand. The Applicant provided basic information regarding other relatives in Australia, but without details. These include 3 uncles/aunts, 10+ nieces/nephews, and 10+ cousins.[81]
[79] Exhibit 3, G-Documents, Attachment H, 80.
[80] Ibid.
[81] Ibid.
When asked about these relatives by the Tribunal, the Applicant was rather vague. He said that some of his uncles/aunts were living in Victoria and he did not have much contact with them. Some of his nieces/nephews lived in Victoria and some in Perth. He was unsure how many were under 18 years of age. He had occasional contact with them by phone. He did not name any, or recall birthdays. He would see them occasionally at [X] community gatherings in Perth. It seems that his connection to them has been minimal. It can continue, such as it is, electronically from New Zealand.
If the Applicant were to be released into the community, he plans to get married to A.V, and to live with her and their two children. He wants to own a house together with AV.[82]
[82] Ibid 75.
The Applicant was active in the small [X] community in Perth.[83] His victim is also a member of this community. He is permanently restrained from being in contact with her.[84]
[83] Ibid 83.
[84] Ibid.
If the Applicant were to regain his visa, his connection with that community is unlikely to be restored, due to his conviction.[85]
LEGISLATIVE FRAMEWORK
[85] Ibid.
Does the Applicant Pass the Character Test?
The Applicant was sentenced by the District Court of WA to a term of 12 months imprisonment,[86] with a non-parole period of 6 months.[87]
[86] Ibid Attachment A, 39.
[87] Ibid Attachment D, 54.
The Tribunal finds that the Applicant does not pass the character test because he was convicted of ‘indecently deals with a child under 13 years’. The fact of this conviction, as distinct from his guilt, is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[88]
[88] On 21 June 2024, the former applicable direction, Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than Other Primary Considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[89]
“…Direction 65 [now Direction 110] 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.”[90]
[89] [2018] FCA 594.
[90] Ibid [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
Primary Consideration 1 – Protection of The Australian Community
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has only one very serious conviction. The Applicant emphatically denies this offending. The Tribunal is not however, able to look behind the findings of the jury.
The details of the Applicant’s offending, as found by the court are detailed above.
The victim was a young girl of approximately 7 years of age at the time of the offence. The Applicant was an adult, a close family friend, and in a position of trust. The victim referred to him as her uncle. Both the victim and the Applicant were members of the same, small, [X] community in Perth.
The Applicant has continued to maintain his innocence. He has therefore, shown no remorse.
The sentencing Judge found that the Applicant attempted to cover up his offending. This suggests not only that he did commit the offence, but that he knew at the time that it was wrong.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant clearly does not pass the character test.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The gravity of the Applicant’s offending is reflected in the sentence of imprisonment imposed for a first offence. I refer to the Judges’ sentencing remarks set out above.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
The victim is part of a small community in Perth. According to the sentencing Judge, the victim impact statement of [the victim] that:
“… she feels sad, stressed and angry about what occurred. She also experiences anxiety when she sees things or places that remind her of what happened. She has intrusive recollections of the event.
She is very distrustful of men. Her self-confidence is diminished, and she is seeing a school counsellor in this regard. Those responses are consistent with what the court understands to be the harmful effect of abuse of this kind.”[91]
[91] Exhibit 3, G-Documents, Attachment D, 53.
In response, the Applicant has said that he has no intention of going anywhere near the victim. He has also isolated himself from the [X] community in Perth. He is now in New Zealand.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been convicted of only one such serious offence. I place little weight on his driving offences.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
There has only been one serious conviction.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant has made inaccurate statements on Incoming passenger cards as set out above. In the context of this matter, these carry little, if any weight.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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).
There is no evidence of this.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no evidence of this.
I do not consider factors (h) and (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
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; andc)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
The Australian community has no tolerance of sexual offending by adults against young children, especially where the offending occurs in the context of a relationship of trust.
Likelihood of engaging in further criminal or other serious conduct
In the Applicant’s application for review of the Delegate’s decision, he states the following in response to the Delegate’s Statement of reasons[92] for decision:
[92] Exhibit 3, G-Documents, G5: Statement of reasons for decision under s501CA of the Migration Act 1958, 26-37.
“In addition to paragraphs 38[93] and 43[94] of the Statement of Reasons, I have taken every possible step while in prison to address my conviction and demonstrate my willingness to complete necessary rehabilitation, treatments and programmes. However, I was informed that I was limited to these programmes due to my apparent short length of my imprisonment. I am unable to take full advantage of the resources provided in prison.
[X] Prison have completed an Individual Management Plan (IMP) that is currently with the Prison Authorities and I am currently waiting on an outcome from the Prisoners Review Board with regards to a Post Sentence Supervision Order (PSSO), which is due on 25/05/24
Below is a list of voluntary counselling programes that I have completed / Pending during my prison sentence: (Unfortunately I am unable to provide copies of my certificates due to the [X] Prison policies)
·Active Parenting - Reset Services - Completed 14/09/23
·Health and Safety Concepts - Completed 28/02/24 - Certificate No. 1155082
·Plan for Personal Management - Completed 12/12/23 - Certificate No. 1166597
·Holyoak Free Alcohol, Drug & Mental Health Support - Pending - Expected to complete 25/05/24
With that being said, I would also like to hightlight [sic] Paragraph 46,[95] which indicates that I pose a low risk of reoffending. I sincerely ask that this statement be taken into consideration during the review process.”[96]
[93] Paragraph 38 provides: “In his personal circumstances form, in response to completing any rehabilitation courses or program, Mr WRIGHT states ‘in process’ Attachment H”.
[94] Paragraph 43 provides: “Mr WRIGHT has made no representations as to his rehabilitative efforts other than stating courses or programs were ‘in process’. Mr WRIGHT has provided no evidence of completing any courses or programs or accessing any treatment. I consider this increases his risk of reoffending”.
[95] Paragraph 46 provides: “I have found that Mr WRIGHT’s conduct is very serious. I have further found that a sexual crime against a minor child has the potential to cause physical and/or psychological injury to members of the Australian community. On balance I consider there to be a low likelihood that Mr WRIGHT will reoffend. Nevertheless, I considered that, should Mr WRIGHT engage in similar conduct again, it may result in psychological and/or physical harm to members of the community. I have given this significant weight against revocation. I also take into account the Direction states that 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”.
[96] Exhibit 3, G-Documents, G2: Application for review of decision, 10.
None of the above-mentioned courses undertaken by the Applicant, address the issue of his sexual offending against a child. This is not perhaps surprising, given that he maintains that he is innocent of the offence. Drug and alcohol counselling seems to be irrelevant, given that he does not seem to have a problem with substance abuse.
There is no relevant independent expert evidence before the Tribunal to assist in an assessment of risk in this case. Mr B.M seems to have been involved with counselling sessions at [X] Prison, but his efforts were focused on substance abuse, family breakdown, and anger management.[97]
[97] Exhibit 4.2, Letter of Mr B.M. – from Holyoake (dated 30.05.2024).
A parole review report dated 23 October 2023 recommended that the Applicant “attends programs and counselling… to address criminogenic needs in the area of sex offending or cognitive thinking.”.[98]
[98] Exhibit 7, Summonsed Materials produced by WA Corrective Services, 78.
It seems that the Applicant has not undertaken any such programmes. It was noted that, the Applicant ‘has not been assessed for any intensive treatment programmes’ whilst in prison due to the duration of his sentencing.[99]
[99] Ibid 64.
On 21 November 2023, the Applicant was denied parole due to:
· a lack of “suitable accommodation that would support rehabilitation in the community”
· “Unmet treatment needs (child sex offending and poor consequential thinking)”.[100]
[100] Ibid 64.
The fact that the Applicant continues to maintain his innocence and fails to exhibit any remorse, gives rise to a serious concern that the Applicant is in denial about his offending. In such circumstances, there is a risk of reoffending. The magnitude of this risk is difficult to assess due to the lack of relevant expert evidence. The severity of the offending, however, is such that even a minimal risk, is unacceptable.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the Applicant’s visa cancellation.
Primary Consideration 2: Family Violence
The offending in this case does not come within the definition of “family” for the purposes of the Direction.
Conclusion: Primary Consideration 2
This Primary Consideration is neutral.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant did not come to Australia until 2012 when he was 28 years old.
He has various family members in Australia as discussed above. He has some limited connection to them.
The Applicant’s main connections in Australia are his two biological daughters (Child C and Child D) and his de-facto partner, A.V.
The Applicant wants to be a good father to his girls and to support them and their mother. The evidence, such as it is, suggests that the Applicant would be welcomed by his partner if he were to be returned to the community. It is unfortunate that she was not called to give evidence about this.
The prospect of A.V and Child C and Child D relocating to New Zealand was canvassed in the hearing. At one point, the Applicant said that if he could get a job and accommodation in New Zealand, they could join him and that would be his “dream”. He said however, that he presently has neither a job nor secure accommodation, so he has not even really thought about it. Given that the Applicant had only been in New Zealand for a little over 1 week (at the time of the Hearing), this is not surprising. There is reason to expect that in time, he will be able to re-establish himself in New Zealand.
It is unfortunate that the Tribunal did not have the benefit of hearing from A.V personally on this topic.
He has an adopted daughter (Child B) and a former wife, S.N. He has no relationship with them at all.
He had other connections to the small [X] community in Perth, but these have effectively been severed by reason of his conviction.
His offending occurred between 2 November 2016 and 3 November 2020, according to the sentencing Judge.[101] This was quite soon after his arrival.
[101] Exhibit 3, G-Documents, Attachment D, 49.
The Applicant has provided a statement of support from Mr E.T, but little is known about his connection to the Applicant other than the fact that he has known him for about 12 months and that he was a “co-inmate” of the Applicant.[102] He was not called.
Conclusion: Primary Consideration 3
[102] Exhibit 4.1, Character Reference Letter of Mr E.T (undated).
Having regard to all of the above, Primary 3 consideration weighs only slightly in favour of revocation.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
(a)Child B, the Applicant’s adopted daughter, aged 5
(b)Child C, aged 3
(c)Child D, almost 2 years of age
(d)Various unnamed nieces/nephews
In the case of Child B, the Applicant has no relationship with her. He told the Tribunal he has previously made some financial contribution to support her. It is understood that this support has ended and there is no suggestion that this support would resume, whether or not he were to return to the Australian community.
Child C and Child D are the Applicant’s daughters with A V.
The Applicant has been prevented from living with Child C and Child D by his bail conditions[103] and subsequent incarceration. He has never been their primary care giver.
[103] Exhibit 3, G-Documents, Attachment D, 52.
A.V states in her letter of support to the Court in respect of the Applicant’s relationship with his children :
“… Given the restrictions placed upon Logino, he has still managed to build a loving relationship with our children whom our eldest calls “dad”. The smile and excitement that my youngest daughter has whenever he visits says it all.”[104]
[104] Ibid Attachment I: Letter of Support from A.V (26.06.2023), 86.
Prior to his incarceration, the Applicant made some financial contribution to support Child C and Child D.[105]
[105] Ibid 85-6.
This support may still continue, if he obtains employment in New Zealand. He could maintain contact with them electronically.
On the evidence, it is possible, if not likely, that if the Applicant is able to get a job and accommodation in New Zealand, then A.V., Child C and Child D will join him there.
The Applicant has worked as a ‘trade assistant’, ‘carpenter’, ‘assistant production manager’ and ‘driller’.[106] While in prison, he also worked in the Abattoirs as a Slaughterhouse worker.[107] There is no reason to assume that he will be unable to obtain employment in New Zealand.
[106] Ibid Attachment H, 82.
[107] Exhibit 4, 1. Character Reference Letter of Mr E.T (an inmate of Mr Wright) (undated): Exhibit 7, Summonsed Materials Produced by WA Corrective Services, 75.
Mr J.I, a friend of the Applicant’s, states in his letter of support that the Applicant ‘helped raise all his nephews and most of the kids in the family’.[108] The Applicant himself gave no such evidence. This man was not called as a witness. No further details were provided.
[108] Exhibit 3, G-Documents, Attachment K: Letter of Support from Mr J.I, 94.
The relationships between the Applicant and his nephews/nieces are unclear. The Applicant did not explain, in his Personal Circumstances Form or at the hearing, how these ‘nephews’ and ‘nieces’ would have been impacted if he were to be removed from Australia permanently.[109] From what he said, it seems that his contact with them and other relatives in Australia, was intermittent and limited. As previously mentioned, he was vague on this topic, not even knowing how many of them were under 18.
[109] Ibid Attachment H, 80.
To the extent that he wished to maintain contact, it could be managed electronically from New Zealand.
Conclusion: Primary Consideration 4
Having regard to all of the above, Primary Consideration 4 weighs slightly in favour of revocation of the Applicant’s visa cancellation
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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 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.
Paragraph 8.5(3) of the Direction provides that 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.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[110]
[110] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s serious nature of crime
b.the other matters set out above
Conclusion: Primary Consideration 5
Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) legal consequence of the decision:
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 41 years old. He is in good physical health. It was noted by the sentencing Judge however, that he has suffered from depression since his conviction.
There are no language or cultural barriers to prevent him adjusting to returning to New Zealand. He could choose to live anywhere in that country, or its territories.
The Applicant would have access to the same social, medical and/or economic support as is available to any other citizen of New Zealand. These are broadly comparable with the social supports in Australia.
The Applicant has generally had a good work history and there is nothing to suggest that his skills would not be required in New Zealand.
The Applicant would certainly experience some disruption in having to re-adjust to life in New Zealand, obtaining a job and finding accommodation.
I note that he voluntarily returned to New Zealand.
At the hearing on 11 July 2024, I directed the Minister to provide further written submissions on the effect of the Applicant's voluntary removal to New Zealand on this Other Consideration.
The Minister submitted that the Tribunal should consider the Applicant's representations in relation to the impediments he will face in establishing himself in New Zealand. However, the Minister submitted that the Applicant is unlikely to face any significant challenges and the Tribunal should therefore afford this Other Consideration, neutral weight.
The Minister submitted that: “the word 'if' in paragraph 9.2 is forward looking, and requires the Tribunal to assume that the non-citizen will be removed, and then assess the impediments they may face in their home country. In this case, the applicant was voluntarily removed to New Zealand on 1 July 2024, which means that the Tribunal is no longer required to assume that the applicant will be removed. The question then is whether the Tribunal should nonetheless assess the impediments he may face in New Zealand.”
The Minister referred the Tribunal to Rewha v Minister for Immigration, Citizenship and Multicultural Affairs,[111] in which Senior Member Burford found at [176] – [177] that:
[176] The Minister submitted this consideration was no longer relevant as the Applicant had returned to New Zealand on 7 June 2023 and the consideration is forward looking and directed to a situation if removed. However, as the Applicant was being held in immigration detention as an unlawful non-citizen prior to his departure, the Tribunal does not regard this consideration as irrelevant merely because the removal of the Applicant is effected voluntarily. The consideration is directed at the impediments the Applicant faces in establishing himself in New Zealand and maintaining basic living standards. These matters arise regardless of whether the Applicant’s removal is voluntary.
[177] In any event the Minister accepted the Tribunal must consider the representations raised by the Applicant, including with respect to impediments. Further, the Tribunal notes that what will amount to an ‘other reason’ for the cancellation to be revoked is not constrained by the considerations detailed in Direction No 99.
[111] [2024] AATA 1425
The Minister submitted that: “the Tribunal's approach in Rewha was correct. While the wording of Direction 110 (which is the same as Direction 99 in this respect) is forward looking, the Tribunal is not constrained by the matters outlined in Direction 110. Certainly, the Tribunal is not precluded by the use of the word 'if' from considering the potential impediments that the applicant may face in New Zealand, simply because he was voluntarily removed prior to the Tribunal's decision”.
The Applicant was invited to provide a reply to the Minister’s submissions. The Tribunal did not receive any further submissions from the Applicant.
Having regard to all of the above, this Other Consideration (b) is neutral.
(c) Impact on Australian business interests
There was no evidence on this topic, so this Other Consideration (c) is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 is neutral.
Primary consideration 3 weighs only slightly in favour of revocation.
Primary consideration 4 weighs slightly in favour of revocation.
Primary consideration 5 weighs heavily against revocation
Other consideration (a) is neutral.
Other consideration (b) is neutral.
Other consideration (c) is neutral.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against a child are viewed very seriously by the Australian Government and the Australian community.
The Applicant’s offending is accordingly very serious. He abused the trust of a very young girl. The community does not tolerate such conduct.
The Applicant’s continued denial of his wrongdoing demonstrates no remorse. There is no independent expert evidence to assist in forming an optimistic view about his ongoing risk to the community.
The gravity of the Applicant’s offending (Primary Considerations 1 and 5) is such as to overwhelmingly outweigh the factors slightly favouring revocation. In this instance, the protection of the Australian community is a powerful consideration that cannot be displaced.
The factors against revocation overwhelmingly outweigh those weighing slightly in favour of revocation of the visa cancellation.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.
.............................[sgnd].................................
Associate
Dated: 30 July 2024
Date of hearing: 11July 2024 Advocate for the Applicant:
Self-represented
Advocate for the Respondent: Mr James Fyfe
(Minter Ellison)ANNEXURE A – LIST OF EXHIBITS
Exhibit no.
Lodged by
Document
1
Respondent
1. Statement Of Facts, Issues And Contentions
2. Annexure A
3. Annexure B
2
Respondent
Amended Statement Of Facts, Issues And Contentions
3
Respondent
G – Documents
4
Applicant
Bundle of Documents
1. Character Reference Letter of Mr E.T (an inmate of Mr Wright) (undated)
2. Letter of Mr B.M – from Holyoake (dated 30.05.2024)
3. Determination of Post Sentence Supervision Order from Prisoner Review Board (dated 23.05.2024)
4. Individual Management Plan from Department of Justice (WA)
5. Record of Completion – Plan For Personal Management (dated 14.11.2023)
6. Certificate of Completion – Active Parenting Course (dated 14.09.2023)
7. Statement of Attainment – Plan for Personal Management (dated 12.12.2023)
8. Statement of Attainment – Apply Workplace Health and Safety Concepts (dated 28.02.2024)
5
Respondent
Supplementary Documents
6
Respondent
Respondent’s submission in reply
7
Respondent
Summonsed Materials produced by WA Corrective Services
ANNEXURE B – APPLICANT’S OFFENDING HISTORY
Court
Court Date
Offence
Court Result
Perth District Court (WA)
21.06.2023
Indecently deals with a child under 13 years
Reportable Offender:
Start Date: 27-Jun-2023.
Imprisonment: 12 Months Concurrent From 27-Jun-2023.Concurrent, VRO Section 63A:
Duration Not SuppliedJoondalup
Magistrates Court (WA)09.06.2017
No authority to drive (never held)
Fine: $150, Mdl Disqualification: 3 Months
Penrith Local
Court (NSW)13.05.2013
Negligent driving (not occasioning death/gbh)
Fine: $400 Disqualification: 3 Months
Penrith Local Court (NSW)
13.05.2013
Learner not accompanied by driver/police officer/tester
Fine: $400 Disqualification: 3 Months
Penrith Local Court (NSW)
13.05.2013
Drive with middle range PCA
Fine:$600
Disqualification: 6 Months
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