WRKW and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 120
•20 February 2025
WRKW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 120 (20 February 2025)
Applicant/s: WRKW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10292
Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:20 February 2025
Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 25 November 2024 to not revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
......................[SGD]...........................
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BF transitional (permanent) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence - the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v The Minister for Immigration and Citizenship (2009) 106 ALD 666
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7
Walker v Minister of Home Affairs [2020] FCA 909Secondary Materials
Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CAThe long-term effects of child sexual abuse (Cashmore and Shackel) CFCA Paper, No 11,2023.
Statement of Reasons
INTRODUCTION
The Applicant is a 60-year-old citizen of the United Kingdom. He arrived here in 1986 and has been ordinarily resident in Australia during the 56-57 years after his arrival. The Applicant has compiled a criminal history in this country. It involved him being charged with 25 sexual offences committed in respect of two complainants. He took those charges to trial being judge and jury which commenced on 13 October 2020. At the conclusion of Crown’s case at the trial, the learned trial judge directed acquittals on six charges. Of the remaining 19 charges that went before the jury for deliberation, the Applicant was convicted on six and acquitted on 13.
The six counts on which the Applicant was convicted were:
(a)Count 1 – maintaining a sexual relationship with a child, with two circumstances of aggravation, namely indecent dealing and exposing the complainant to an indecent act;
(b)Counts 3, 4, 5 and 14 – indecent dealing with a child under 16; and
(c)Count 17 – unlawful carnal knowledge.
Shortly after the trial, the Applicant received the following sentences for the six counts on which he was found guilty:
(a)Count 1 – 9 years’ imprisonment;
(b)Count 3 – 12 months’ imprisonment;
(c)Counts 4 and 5 – 2 and a half years’ imprisonment;
(d)Count 14 – six months’ imprisonment; and
(e)Count 17 – 4 years’ imprisonment.[1]
[1] Note to reader: the summary of the Applicant’s offending appearing at [1]-[3] of these Reasons is based on the Court of Appeal’s decision (per Morrison JA): see R3, p. 2.
The Applicant’s offending resulted in the Respondent’s Department cancelling his Class BF transitional (permanent) visa (‘visa’) on 10 November 2020. The cancellation was compelled by section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). The Applicant failed the character test[2] pursuant to section 501(7)(c) of the Act due to him having compiled a “substantial criminal record” as a result of him receiving a term of imprisonment of 12 months or more.
[2] Section 501(6)(a) of the Act
The Applicant sought revocation of this mandatory cancellation decision and, on 12 November 2020, furnished the Respondent’s Department with documents to that end. By way of a decision dated 25 November 2024, the Respondent’s Department refused to revoke the mandatory cancellation of the visa[3]. There followed, on 5 December 2024, an Application to this Tribunal seeking merits review of the refusal-to-revoke decision made on 25 November 2024.
[3] Hereinafter referred to as the ‘Decision Under Review’.
THE INSTANT HEARING
The instant hearing proceeded before me on 14 February 2025. The Applicant was self-represented. The only witness who provided oral evidence was the Applicant. At the commencement of the hearing, I sought and obtained the agreement of both sides that the draft Exhibit List provided to them shortly before the hearing was a true and correct summary of the totality of material before the Tribunal. Both parties so agreed. A copy of this duly agreed Exhibit List is attached to these Reasons and marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
the Minister is satisfied:
that the person passes the character test (as defined by section 501); or
that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the ultimately unsuccessful representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
a)whether the Applicant passes the character test; and if not
b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[4] It is abundantly clear from his criminal history that he has received a sentence of imprisonment of 12 months or more, [5] and thus has a “substantial criminal record” which compels this Tribunal to find that he does not pass the character test. The 12 month threshold is comfortably met as a result of the imposition of cumulative head custodial terms of 17 years by a Queensland District Court on 22 October 2020.
[4] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[5] Section 501(7)(c) of the Act.
For the sake of completeness, I note that on appeal the Applicant challenged his abovementioned convictions on 2 grounds:
(a)there was a miscarriage of justice by reason of a juror conducting investigations and other jurors not reporting the conduct; and
(b)there was miscarriage of justice by reason of the juror not disclosing to the Court a stated bias.
He also sought leave to appeal against his sentence on the basis that it was manifestly excessive. On 3 September 2021, the Queensland Court of Appeal unanimously dismissed his appeal against his convictions and unanimously refused his application for leave to appeal against his sentences.
Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[6] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[7] has application.
[6] Pursuant to section 501C(4) of the Act.
[7] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
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 consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian 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 allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
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.
I will consider each in turn.
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 the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of 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;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending: an overview
In terms of the dates of his convictions, the Applicant has what, at first blush, may appear to be a relatively short criminal history. His first conviction occurred in October 2019 and the remainder of his convictions occurred in October 2020. But this is not the full story of his offending. Although in his mid-50’s when convicted, the Applicant was 25 years old at the time of the offences which were committed against his niece (and victim of his index offending). In its abovementioned judgment, the Court of Appeal summarised the following aspects of the Applicant’s offending:
‘[54] The learned trial judge noted a number of features about the offending which can be summarised by the following points:
(a) the appellant was born on 27 October 1964 and was therefore 25 years and older during the course of maintaining the sexual relationship;
(b) the abuse of the child started in about 1988 when she was only five or six years of age;
(c) the abuse continued for a decade;
(d) the complainant was a very vulnerable young girl whose disadvantages included her own parents being unable to look after her, and her being placed in care;
(e) the appellant was the uncle of the complainant;
(f) the relationship between them was characterised by physical violence and emotional blackmail;
(g) during the course of the maintaining period the complainant was abused frequently and about twice a week from the age of 14;
(h) the nature of the offending included rubbing of the appellant’s penis on her, particularly on her vagina, masturbating and ejaculating on her body, and at least one act of penile penetration;
(i) taking into account offending that took place in a State other than Queensland, the offending continued for a period of 12 years;
(j) the appellant had no relevant criminal history; and
(k) the conduct of the trial indicated a lack of remorse.
[55] The learned trial judge took into account a number of factors relevant to the offence of maintaining a sexual relationship with a child. These were factors enumerated by this Court in R v SAG. His Honour identified that the significant factors were:
(a) the young age of the child victim;
(b) the lengthy period for which the relationship continued;
(c) that there was a protective relationship with the appellant being the girl’s uncle, and she having been placed in the care of the Department of Children’s Services and with her grandparents (the appellant’s parents);
(d) that the relationship was characterised by physical violence and emotional blackmail; and
(e) there had been at least one act of penile penetration’.[8]
[Internal citation omitted]
[8] R3, p. 14.
In summary, the Applicant’s criminal history demonstrates he has convictions for seven offences dealt with at two separate sentencing episodes. In terms of sentences, he has received one ‘no conviction recorded’ with a recognizance in the sum of $100 to be of good behaviour for a period of three months. He has also received five terms of imprisonment comprising (1) four years; (2) two years and six months; (3) 12 months; (4) six months; and (5) nine years, thus giving a cumulative head custodial term figure of 17 years. Given that one of the sentences was convicted on a ‘no conviction recorded’ basis, I will not, out of an abundance of caution, take that particular sentence into account for present purposes. I will, however, most certainly have regard to the convictions for which the Applicant received his five custodial terms (ie his index offending).
Application of factors appearing at paragraph 8.1.1(1) of the Direction.
The Applicant’s offending was committed over a 10 year period against a very young child-victim who had originally been placed into the care of his (i.e. the Applicant’s) parents. This occurred because the parents of the child-victim were deemed unable to look after her. The Applicant was the victim’s uncle and was, in a familial sense, proximate to her such as to cause him to hold a position of trust relative to her. As stated earlier, at the time of the offending the child-victim (the Applicant’s niece) was aged 5-6 years and he was aged 25 years. The abuse was frequent in that it was found to have occurred twice a week and involved at least one act of penile penetration.
The conduct had a violent element involving the Applicant kissing her, rubbing his penis on her, particularly on her vagina, masturbating and ejaculating on her body, and as mentioned above, at least one act of penile penetration. This conduct constitutes violent and/or sexual crimes against a child which must be viewed very seriously.[9] The offending also falls within the definition of family violence for present purposes, regardless of whether there is a conviction or sentence imposed for that conduct.[10] On this basis, the Direction stipulates the Applicant’s offending must be viewed very seriously. She was his niece living in the same residence as him. His conduct caused her to be fearful and involved him sexually assaulting her.
[9] Paragraphs 8.1.1(1)(a)(i) and (ii) of the Direction.
[10] Paragraphs 8.1.1(1)(a)(iii) of the Direction.
There is surely no cavilling with this Tribunal’s finding that the impact of the Applicant’s offending has very seriously impacted his victim. As such, the Direction compels[11] a finding that the totality of the Applicant’s unlawful conduct should now be found to be very serious. The learned sentencing judge[12] noted that:
I have heard the prosecutor read her carefully thought out and written victim impact statement this morning. None of the matters in that victim impact statement caused me any surprise. They could not, in my view, have caused you any surprise. Men; and obviously I am particularly directing you at the moment, who commit offences of this sort amongst young girls, must know, if they give it any thought at all, that it is likely to significantly adversely affect them. The reason that you continued to abuse her in the way that you did, is that you are interested only in your own self-gratification. It is an appalling indictment of your own lack of capacity to empathise with others or to have any concern about people other than yourself. You should be ashamed. [13]
[11] Paragraph 8.1.1(1)(d) of the Direction.
[12] His Honour Judge Reid DCJ.
[13] R1, pp. 45, lines 44-48; p. 46, lines 1-6
There is likewise little or no cavilling with a finding that the Applicant’s conduct was both frequent[14] and that it resulted in palpable cumulative effects[15] on its victim. In terms of its frequency, we know it was committed approximately twice a week and that it continued for a decade. In terms of its cumulative effects on its victim, one need only have regard to the disturbing content of the victim’s impact statement appearing in the material:
My brother [name redacted], sister [name redacted] and I moved in with grandma and grandad and [the Applicant] in [a state not being Queensland]. I first recall being so confused, afraid and fearful when [the Applicant] called me into the shed. I was only 5 – 6 years old when the abuse started, not only did I have to do things for him, disgusting things like put his penis in my mouth and work around the house. He also used to punch us, hit us and swear abusively also remember a big thick black belt he would hit us with, if I did not listen to him.
With so much physical, emotional, and sexual abuse, I cannot tell you how much pain and fear he caused over the years.
When we had moved to our new house in [a location in Queensland], the abuse continued week after week. His room was next to grandads and grandmas but he continually took me into his room and abused me night after night, he would tie my hands to bed, or behind my back or hand over my mouth or forcefully hold me down, if I tried to fight him off. No one stopped him, no one helped at all. The most scary moments were being left alone with him, he could do what ever he wanted to do with me.
He [the Applicant] had always said “its between us and don’t tell anyone”. I was a kind, always too scared as I didn’t understand any of it or what was happening to me. As the years went by I feared more and more of what [the Applicant] would say or do or if he would come into our room.
…
I have had counselling to help me with the issues I have. I have suffered with anorexia which I have had for many years, but like now when stressed I lose control and my emotions take over. I have had counselling to try and overcome the different fears, feelings and emotions, wishing I could have had a normal life. When in with the counsellor she has also noted that it was evident that I had no self confidence and was always putting myself down. I now deal with anxiety and depressions, which I believe has resulted from this.[16]
[14] Paragraph 8.1.1(1)(e) of the Direction
[15] Paragraph 8.1.1(1)(f) of the Direction
[16] R3, pp. 83-84.
There is, to my mind, a further cumulative effect of the Applicant’s conduct and it relates to certain further allegations that have been made against him. It should be noted that the offences with which the Applicant was charged and convicted came to the attention of investigating Police while they were conducting another investigation in relation to the Applicant. This has its echo in the abovementioned victim impact statement where the victim says this:
I would never have spoken up about my childhood except he [the Applicant] attempted to touch my eldest daughter. The feeling of being sick to my stomach when my mind wanders to what could have happened to my daughter and what did happen to me.[17]
[17] R3, p. 84.
These additional allegations made against the Applicant comprised:
(a)an allegation that the Applicant had abused, hit, and punched the victim and her siblings. The relevant police document notes: ‘The informant claimed that on one occasion recently she had seen the [victim] with a black eye and was told that the suspect [the Applicant] had caused it. The informant also stated that she had seen the suspect [the Applicant] dragging [the victim] around by the hair and punching into her with closed fists’;[18]
(b)an allegation that on 14 October 2018, the Applicant had attempted to rape his minor-aged biological daughter and that similar acts had occurred in the past. The relevant police documentary record notes the following:
‘She [the minor-aged biological daughter] was in the bathroom and her father [the Applicant] came in and locked the door. She asked him a question about a sore on her finger. Her father [the Applicant] then moved uncomfortably close to her and asked her to show him her 'Boobs and vagina" She refused and pushed him away and left the bathroom. As she left he pinched her on the bottom and called her a pussy. She then rang her mother on her father’s phone and disclosed the same to her. She [the mother of the minor-aged daughter] told the VC [the minor aged daughter] to go to [name redacted] a friend at [address redacted]… VC [the minor aged daughter] also stated that suspect [the Applicant] had entered the [her] room when they were living in [location redacted] about 3 years ago when she was 11. She says he entered the room with his hand on her [sic] penis, sat on her bed and tried to wake her he then attempted to unzip her shorts but she would not let him. She then told him to leave.[19]
(c)An allegation that the Applicant attempted to pull down the pants of XXYY, the 14 year old daughter of his niece who was the victim of his abovementioned index offending. The relevant police record notes the following:
“XXYY was staying over at [the Applicant’s minor-aged daughter’s][20] house within the last two weeks. XXYY and [the Applicant’s minor-aged daughter] were asleep on the couch. [The Applicant] carried each girl to bed in his bedroom. [The Applicant’s minor-aged daughter] woke up and went back into her bedroom. XXYY was woken by [the Applicant] trying to remove her clothes. XXYY kept saying no don't - stop. But [the Applicant] would not listen. He got XXYY’s pants off, then XXYY kicked him in the face and ran off into [the Applicant’s minor-aged daughter’s] room. XXYY told [the Applicant’s minor-aged daughter] and they decided to stay in the same room together and tell someone in the morning. They did not tell anyone until yesterday, as they have been afraid. [The Applicant’s minor-aged daughter] revealed what had happened to her at school - yesterday 16th October. A report was completed for this. XXYY told her mother last night what had happened. XXYYs mum [ the victim of the Applicant’s index offending] told her not to tell anyone. [The victim of the Applicant’s index offending] told XXYY that [the Applicant] had done the same to her many years ago. [The Applicant] is related to [the victim of the Applicant’s index offending].[21]
[18] R3, p. 41.
[19] R3, pp. 22-23.
[20] Note to reader: this is the same minor-aged daughter of the Applicant referred to in [28(b)] of these Reasons.
[21] R3, pp. 30-31.
During oral closing submissions, the Respondent’s representative urged the Tribunal to take these additional allegations into account in its assessment of the nature and seriousness of the Applicant’s unlawful conduct. It is accepted that this Tribunal cannot go behind the factual basis grounding the charges on which the Applicant was tried, convicted and sentenced. The Respondent’s submissions about taking these additional allegations into account derives from the language of paragraph 8.1(1) of the Direction which refers to the protection of the Australian community ‘…from harm as a result of criminal activity or other serious conduct by non-citizens’ [my underlining].
The further contention from the Respondent is that this Tribunal can take the conduct referred to in these additional allegations if, on the balance of probabilities, the Tribunal considers that the Applicant engaged in that conduct. In cross-examination, the Applicant categorically denied having engaged in both the behaviour for which he was convicted and the further behaviour contained in the above additional allegations. For the purposes of these additional allegations, I will accept the numerous reports of these additional family members in preference to the Applicant’s blanket denials of the entirety of both his convicted and additionally-alleged behaviour.
It should also be noted that the Applicant’s own sister reported concerns she had about the Applicant’s treatment of his niece (and victim of his index offending) and the niece’s sister as far back as 1996. As noted by the Respondent during closing submissions, these allegations allege behaviour conducted towards a familiar demographic comprising young females aged between 6-14 years. Of particular relevance are the allegations of XXYY and the Applicant’s minor-aged daughter which appear to have been accepted by investigating Police but were not taken further due to an absence of necessary corroborative material. It suffices to say that during cross-examination at the instant hearing, the Applicant could not offer any explanation about the multiplicity of similar allegations made by numerous complainants over a lengthy period.
In these circumstances, and with particular reference to matters alleged in the additional allegations outlined at [28(a)-(c)] of these Reasons, I will, on the balance of probabilities, form the view that the Applicant did engage in that additionally-alleged conduct.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have had regard to the totality of the Applicant’s unlawful conduct and other serious conduct as additionally-alleged. I have sought to apply the relevant componentry of paragraph 8.1.1(1) of the Direction to the totality of that conduct, including the additionally alleged conduct. Those relevant components of paragraph 8.1.1(1) of the Direction now inform a finding that this Applicant’s unlawful conduct in this country should be characterised as “very serious”. I so find.
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 risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the 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 the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);
c) 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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
This Applicant’s unlawful conduct has been so very serious that the harm resulting from any re-commission of such offending would be so serious that it would be absolutely unacceptable to the Australian community.[22] Any assessment of the nature of the harm that would be occasioned to any further victim of re-commission of such conduct does, in many respects, run parallel to the cumulative effects of his offending contemplated by paragraph 8.1.1(1)(f) of the Direction. In this regard, one should look no further than the dreadful content of the victim impact statement appearing in the material. [23]
[22] Pursuant to paragraph 8.1.2 of the Direction.
[23] R3, pp. 83-84.
If re-committed, it is extremely likely that such conduct would result in very significant physical and psychological harm to members of the Australian community. There would also be the further impact upon the community’s mental health and rehabilitative resources in assisting victims of such extreme childhood sexual abuse to overcome and address the very significant mental and other impacts resulting from their exposure to such appalling conduct.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Respondent contends the Applicant’s current level of recidivist risk should be assessed as ‘low’. Reference is made by the Respondent to a STATIC 99-R assessment prepared by Queensland Corrective Services on 30 November 2020. There, the Applicant is assessed as having a risk level of ‘Low’.[24] The Applicant raises some elements about this assessment which, it is contended, should now cause this Tribunal to treat the assessment with some caution. First, it is said that due to the age of this assessment, much of the information currently before this Tribunal was not available at the time of preparation of this report. The Applicant was also charged with similar offending against another victim but those charges were eventually discontinued. Yet this assessment contains the notation of there being “No Previous Victim Types.”[25]
[24] R3, p. 65.
[25] R3, p. 64.
Second, the assessment contains the caveat that the Static 99-R assessment methodology “…..has shown moderate accuracy in ranking offenders according to their relative risk for sexual recidivism.”[26]The resulting contention is that this assessment should not now be accepted as in any way determinative. Third, by its very nature, the testing methodology around the Static 99-R assessment exclusively focuses on static factors only. It does not look at dynamic factors impacting a person’s assessment for recidivist risk. I would add a fourth element which involves the aged nature of this assessment which was performed on 30 November 2020, meaning that it is now some four and a half years old. It thus does not take into account any subsequent changes in the Applicant’s psychopathology and how this may now impact his recidivist risk for sexually violent offending.
[26] R3, p. 66.
It seems clear from the prison records that the Applicant has not undertaken anything by way of substantive rehabilitation that could now inform his recidivist risk. His initially expressed willingness (in about November 2020) to become involved in specific rehabilitative programs aimed at lowering his recidivist risk was subsequently replaced with a reluctance to become involved in such courses and programs. The documents from Queensland Corrective Services make it clear that the Applicant had been provided with specific recommendations for his participation in offence-specific rehabilitative programs. These recommendations do not appear to have been taken up.
Inevitably, this led to the following finding appearing in a subsequent ‘Information Notice Security Classification’:
‘You have been assessed as having a Risk of Reoffending – Prisoner Version (RoR-PV) score of 1 which indicates you fall into the category of prisoners who pose a low risk of further general offending;
I gave consideration to your STATIC – 99R assessment, approved on 17 June 2021 which indicates you pose a low risk of further sexual offending;
On 3 November 2020 you were approached to gauge willingness to be waitlisted for substance abuse interventions to assist to reduce your risk of re-offending. You have declined to be waitlisted for substance abuse interventions; On 28 June 2021 you were approached to gauge willingness to be waitlisted for sexual offending programs. You indicated a willingness to participate in the Getting Started Preparatory Program (GSPP) and Medium Intensity Sexual Offending Program (MISOP), both of which remain outstanding. However, I noted that you indicated that you are unwilling to transfer to participate in these programs as you have family in the area; You have outstanding assessments to identify offence specific interventions;
…
It is considered that your risk of reoffending remains unaddressed, and based on the harm caused by your offences, I have formed the reasonable belief that any future offending will cause considerable harm to the community;[27]
[My emphasis]
[27] R3, p. 72.
The material contains reference to a ‘movement history’ of the Applicant during his time in criminal custody. This history covers the period March 2023 – November 2023. The ‘movement’ appears to relate to him being moved from one part of a given prison facility to another and the ‘movement reason’ is recorded as ‘Medical or psychological examination or treatment’.[28] It is not clear precisely what type of treatment the Applicant received during these movements and how, if at all, they now speak to his current level of recidivist risk.
[28] R3, p. 81.
The Applicant’s own evidence at the instant hearing was certainly not suggestive of someone willing to undertake any form of remedial treatment and/or rehabilitation for any predisposition towards sexually violent offending against minor-aged victims. This derives from the position he took at the instant hearing of categorically denying any involvement in, or commission of, the very serious conduct leading to his convictions. This pattern of denial involved him trying to somehow implicate or share blame with the victim of his offending. To my mind, this is demonstrative of a person who has failed to develop any insight into what he was found guilty by a jury of his peers of having done.
He vacuously sought to suggest that the victim’s allegations grounding his convictions must have been untrue because she moved to reside in the same locality as him. The question he put was why would she move to live in the same locality as him if her allegations were in fact true? There are two answers to this question: first, the victim did not choose to live in the same locality as him. As noted in her victim impact statement, she was, due to circumstances beyond her control as a minor-aged child, caused to relocate from Victoria to Queensland to reside with her grandparents who were the parents of the Applicant. Second, there is no requirement for the victim to provide any such explanation. This vacuous position assumed by the Applicant at the instant hearing is consistent with someone who has gained little or no insight into his very serious unlawful conduct.
A further indicator of the Applicant’s demonstrated lack of insight can be seen in his unsustainable evidence that while he accepts the sentence imposed on him for his convictions, he abjectly refused to accept the factual basis of the very serious conduct on which those convictions are based. At the instant hearing, he spoke of an intention of returning to his family home and to otherwise live a peaceful life in the presence of his family. This stated intention does not take into account the attitude of his abovementioned biological daughter who made the very serious allegations against him which I have outlined earlier in these reasons. She continues to live in the family home and just quite what she would make of the Applicant showing up to reside in the same domestic space as her has not been made clear.
The Applicant is eligible for parole in April of this year. The material seems devoid of any application or consideration for parole nor any evidence from people who would be impacted by the Applicant’s release on parole such as members of his family. There is no supporting documentation from any independent parole assessment officer (or equivalent) suggestive of the Applicant’s return to his family if released from prison. The evidence of him being paroled or released to live with his family is his and his alone.
Assessment of recidivist risk
I will find that the Applicant represents a low risk of re-offending. To this finding, I will add that this is a case where the harm that would be caused by the Applicant’s conduct were it to be repeated, would be so serious that any such risk should now be found to be unacceptable. I reach this recidivist risk finding with the Direction’s dictum that the safety of the Australian community is “..the highest priority of the Australian Government”[29] at the forefront of my mind.
Sub-paragraph 8.1.2(2)(c)
48.The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.[29] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.
Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found were this Applicant to recommit the offending for which he was sentenced on 22 October 2020, the harm that would be occasioned to a victim(s) would result in very significant physical and psychological harm to members of the Australian community. There would also be the further impact upon the community’s mental health and rehabilitative resources in assisting victims of such extreme childhood sexual abuse to overcome and address the very significant mental and other impacts resulting from their exposure to such appalling conduct.
(c)the totality of the evidence points to a safe finding that this Applicant’s level of recidivist risk can now be found to be ‘low’ but that the harm resulting from any re-commission of that conduct would be so serious such as to render even that low level of risk as unacceptable to the Australian community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
I have recounted reported the circumstances of the Applicant’s very serious unlawful conduct against the victim of his index offending (for which he was convicted by a jury of his peers) and the further allegations of his biological daughter whose allegations were duly recorded by investigating Police in reports to which I have referred. As noted for his index offending, the Applicant was convicted by a jury of his peers. In relation to the conduct reported by his biological daughter, I have found, on the balance of probabilities, that the Applicant did engage in that additionally alleged conduct.
Paragraph 8.2 of the Direction compels two additional inquiries: (1) it is necessary to ascertain who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.
Who are members of the Applicant’s family?
Paragraph 4(1) of the Direction defines family violence to mean “…..violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”
Section 8 of the Domestic and Family Violence Protection Act 2012 (Qld) provides that ‘domestic violence’ means ‘behaviour’ or a ‘pattern of behaviour’ by a person (in this case the Applicant) towards another person (in this case the victim of his index offending and his biological daughter) with whom the Applicant is in a ‘relevant relationship’ which is (inter alia) physically abusive.
Insofar as the victim of the index offending (a niece) and the biological daughter are concerned, section 19(2) of the Domestic and Family Violence Protection Act 2012 (Qld) deems both of these people to be someone with whom the Applicant was in a ‘relevant relationship’ at the time he committed his very serious unlawful conduct towards them. It can thus be safely found that both of these people were members of his family for present purposes.
Did any of the Applicant’s conduct constitute family violence?
I again refer to the definition of ‘Family violence’ as defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[30] This definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[30] Paragraph 4(1) of the Direction.
It is clear from the above-recounted descriptions of the Applicant’s conduct respectively perpetrated against the victim of his index offending and his biological daughter was indeed conduct that was violent, threatening and/or behaviour that sought to coerce or control each of these two victims and members of his family. I am likewise satisfied that the Applicant’s conduct in each of the recounted incidents referable to these two people was violent, threatening and that it was behaviour that caused each of the two victims to be fearful.
Is the Applicant’s conduct captured by paragraph 8.2 of the Direction?
With reference to the conduct involving the victim of his index offending, I am of the view (and I find) that even though the Applicant does not have an actual conviction for this conduct as a ‘family violence’ offence(s) per se, I am nevertheless satisfied that his conduct is captured by paragraph 8.2(2)(b) of the Direction. The author(s) of the relevant Police reports initially grounding the criminal offences were no doubt suitably experienced Police officers who, on any reasonable view, would have (or had) commensurate experience in the preparation of such reports. That author(s) can now be found to have been an independent and authoritative source for the report that was prepared referencing the Applicant’s very serious criminal conduct towards the victim of his index offending. Therefore, for the purposes of paragraph 8.2(2)(b) of the Direction, the Applicant’s conduct towards the victim of his index offending for which he was convicted on 22 October 2020 does constitute family violence against her for the purposes of the Direction. I so find.
With reference to the conduct involving his biological daughter, I am of the view (and I find) that even though the Applicant does not have an actual conviction for this conduct as a ‘family violence’ offence(s) per se, I am nevertheless satisfied that his conduct is captured by paragraph 8.2(2)(b) of the Direction. The author(s) of the relevant Police reports referencing this conduct to which I have referred were no doubt suitably experienced Police officers who, on any reasonable view, would have (or had) commensurate experience in the preparation of such reports. That author(s) can now be found to have been an independent and authoritative source for the Police documents referencing the Applicant’s conduct towards to his biological daughter. Therefore, for the purposes of paragraph 8.2(2)(b) of the Direction, the Applicant’s conduct I have recounted towards his biological daughter and which I have, on the balance of probabilities, found he committed, does constitute family violence against her for the purposes of the Direction. I so find.
Assessment of the seriousness of the Applicant’s family violence conduct
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. The Applicant’s unlawful conduct towards the victim of his index offending was indeed frequent and does appear to have escalated in seriousness involving, as it did, at least one instance of penile penetration. This particular sub-paragraph militates in favour of a finding that the Applicant’s family violence conduct has been of a very serious nature.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. It is only necessary to have regard to the victim impact statement provided by the victim of the Applicant’s index offending to understand the horrendous impact his repeated acts very serious sexual violence (which I have found to be family violence for present purposes) has had on her. In addition, the material contains a 29 page report prepared by two suitably qualified experts dealing with “The Long Term Effects of Child Sexual Abuse”.[31] The report contains the inevitable sobering findings including “Female sexual abuse victims had 40 times higher risk of suicide, 88 times higher for fatal overdose”[32] than the general population. This particular sub-paragraph militates in favour of a finding that the Applicant’s family violence conduct has been of a very serious nature.
[31] R3, pp85 -113.
[32] R3, p95.
Paragraph 8.2(3)(c)
: requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This
sub-paragraph requires three enquiries:
(i)first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. In his oral evidence the Applicant categorically denied any association with or involvement in, the unlawful conduct relating to both the victim of his index offending and his biological daughter. The denials were vacuous and entirely lacking in credibility. He has abjectly failed to accept responsibility for his family violence related conduct;
(ii)second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. The Applicant appears to have developed no such understanding because he maintains a categorical denial of ever having committed any of it. He has virtually non-existent levels of insight into what he has done;
(iii)third
, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a
non-citizen to address the factors which contributed to their family violence conduct. While there is evidence of perhaps an initial inclination to become involved in treatment and to undertake courses, the Applicant has, as noted in the above-quoted portions of the Queensland Corrective Services documents, more recently indicated an unwillingness to participate in any such programs. He does not appear to have experienced any rehabilitative benefit from whatever courses (or equivalent) he has done.
The outcome of the three inquiries compelled by this paragraph 8.2(3)(c) militate in favour of a finding that Applicant’s family violence conduct has been of a very serious nature. I so find.
Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. I have searched the material but cannot locate a copy of an actual domestic violence order made against the Applicant providing any warning about the consequences of further acts of domestic violence or of contravening an extant domestic violence order. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Conclusion: Primary Consideration 2
I have found that sub-paragraphs 8.2(3)(a)-(c) facilitate a finding about the very serious nature of the Applicant’s family violence conduct. Having regard to the weight I have allocated to the various components of paragraph 8.2(3)(a)–(d) (inclusive), I am of the view (and I find) that this Primary Consideration 2 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(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.
The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker 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 during that time.
(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.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
The evidence before the Tribunal about the Applicant’s ties to immediate family members is both sparse and incomplete. It indicates his immediate family in Australia to comprise his wife, his five children, a brother and a sister. With specific reference to his two siblings, the Applicant told the instant hearing he has not spoken to either of them for over 20 years. In circumstances where he has not spoken with his siblings for that long, it is difficult to ascertain the extent, if any, to which they would be adversely impacted by his removal from Australia. His written statement before the Tribunal refers to him communicating with his wife about nominating their home address as his nominated address for parole purposes. The statement goes on to say “…they [his wife and children residing at home] would be okay for me to return back home, they [ie the wife and children residing at home] were very happy about that, but the next day I received a letter from sentence management, that told me it [ie the family home] was not suitable for me to go back there. So I called my wife, told her and she was very upset, as was my family. As they were expecting me to return back home.”[33]
[33] A1, p1.
These are assertions of the Applicant and him alone. There is no corroboration from other immediate family members to whom he refers. On the contrary, the oral evidence before the Tribunal is that the Applicant and his wife had lived together in the family home for seven months preceding the allegations made against the Applicant in October 2018. The oral evidence was suggestive of the Applicant and his wife being in the process of separating or, at the very least, seriously contemplating a separation at or about that time. The further evidence is that once the allegation had been made, the Applicant vacated the family home and that there was a decreasing level of contact between him and his immediate family up until the time of his imprisonment for his index offending.
The further oral evidence before the Tribunal involved the Applicant saying he speaks to his wife about once a month but that she does not respond to him. I agree with the Respondent’s contention made during closing submissions: in terms of any relationship they may have if the Applicant were to return to the Australian community, such relationship would continue to operate in much the same way as is presently the case.
Similar to the rest of the evidence around his ties to Australia, the evidence of any extent of ties the Applicant now has with his children was again sparse. At the instant hearing, he referred to a relationship he claims to have with his “stepson J”. The Applicant told the hearing he lived with stepson J for about 12 months after being compelled to leave the family home when the allegations of October 2018 came to light.
Following this period of living with stepson J, the Applicant told the instant hearing he remained in contact with Stepson J and would see him two or three times a week. The Applicant also told the instant hearing that stepson J had visited him in prison on between three and four occasions. In the absence of any further evidence of his ties with his children, it would appear the Applicant’s strongest relationship with any of them has been with stepson J.
The evidence around the extent of his contact with the remainder of his children is again sparse. He does not appear to maintain (or to have maintained) any consistent pattern of communication with them and he said the only time he does get to speak with them is if they are around and available at the times he speaks with his wife. In the absence of any corroborative or otherwise supporting statements from these immediate family members, I am hard-pressed to assess any extent to which any of the wife or the children would be adversely impacted by his permanent removal from Australia.
I am of the view that the Applicant has at least some measure of ties with his wife and his adult children. I will find that these ties militate in favour of the allocation of a moderate level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(b): Strength, nature and duration of ties with family or social links
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
I am not aware of the material containing any reference to statements from extended family members or any social ties. During his oral evidence, the Applicant spoke of having three social friends comprising R (a male), G (a female) and M (a male). His evidence was that he resided with these people after he was compelled to leave the family home. None of R, G or M have provided any supportive statement. They have nothing to say about the extent of any social relationship the Applicant has with them. The Applicant told the instant hearing that he has not had any contact with these three people since going into prison for his index offending.
I will very cautiously find the Applicant has a slight measure of social ties with these three people in Australia. I am further very cautiously satisfied – on the basis that they once knew the Applicant, but little else – that these three people representing social ties who would be adversely impacted in the event the Applicant was permanently removed from Australia. I am thus of the view that this paragraph 8.3(2)(b) militates in favour of the allocation of, at best, a moderate level of weight to the strength, nature and duration of the Applicant’s ties to Australia. This finding is predicated on the limiting proviso that each of these three people representing these ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(a): Additional factors to take into account
This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia taking into account the following factors:
(i) whether the Applicant arrived here as a young child? [34] The Applicant arrived in Australia when he was three years old. He has lived here for a period of about 57 years. I will find that the Applicant did arrive here as a young child and that this component of paragraph 8.3(2) does augment the weight allocable to his ties to this country;
(ii) whether the Applicant began offending soon after arriving here? [35] The Applicant arrived here as a three year old in 1968 and recorded his first criminal conviction in Australia in October 2020, some 52 years after his arrival. He thus did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;
(iii) the time the Applicant has spent contributing positively to the Australian community during his time here.[36] As noted by the Court of Appeal, the Applicant has a reasonably good work history. He completed schooling to year 10 and then became involved in remunerative employment in the construction and mining industries. He was involved in a 20 year relationship and has fathered biological children in Australia. His work history was curtailed as a result of him suffering a heart attack when about 47 years of age with the consequence that he was thereafter on a disability support pension.[37] The material seems silent about any community contributions. On the basis of his employment contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a moderate level of weight towards a finding about the strength of his ties to Australia.
[34] Paragraph 8.3(2)(a) of the Direction.
[35] Paragraph 8.3(2)(a)(i) of the Direction.
[36] Paragraph 8.3(2)(a)(ii) of the Direction.
[37] See R3, pp14-15, [56].
Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction, sub-paragraphs 8.3(2)(a)(i) and (iii) assist the Applicant while sub-paragraph 8.3(2)(a)(ii) of the Direction does not impugn any weight allocable to him for Primary Consideration 3. Therefore, the specific sub-paragraphs 8.3(2)(a)(i) and (iii) serve to augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction respectively relating to his ties to immediate family members in Australia and his ties to social contacts in Australia.
Conclusion: Primary Consideration 3
I have referred to the three relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a moderate level of weight in favour of this Tribunal setting aside the Decision Under Review.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[38] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
[38] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[39]
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.
[39] Paragraph 8.4(4) of the Direction.
Identification of, and evidence around, relevant minor child/ren
According to the Applicant’s personal circumstances form (“PCF”), he has one minor aged child in Australia, a son “Child E”, who is currently aged 15 years. During the instant hearing, the Applicant referred to two further minor-aged children. They are (1) Child T, who is a two year old grandson. Child T is the son of one of the Applicant’s biological daughters but not the biological daughter who made certain further additional allegations against the Applicant; and (2) the grandchildren of the abovementioned “G”, the abovementioned female person with whom the Applicant claims to have (or have had) social ties.
With reference to his 15 year old biological son, the evidence is suggestive of some contact between him and the Applicant following the making of the allegations in October 2018. However, it appears his level of contact with Child E has devolved into “if and when” sort of contact in the sense the Applicant might speak with Child E if he is around at the time the Applicant is speaking on the telephone with his wife which he said occurred about once a month. The Applicant has never met or spoken with his two year old grandson, Child T. With reference to the grandchildren of the abovementioned “G”, the Applicant’s evidence is that he would occasionally see these children during social visits before he went to prison. He added that he has had no contact with these children since going to prison.
Application of factors at paragraph 8.4(4) of the Direction to the three relevant children
Sub-paragraph (a): while the Applicant may have once enjoyed a parental relationship with Child E, this has not been the case since the Applicant has gone to prison. This is not to suggest there is no existing relationship between them but there have been long periods of absence of the Applicant from Child E’s life and consequential limited meaningful contact. I am hard-pressed to discern the nature of any identifiable relationship between the Applicant and the grandchildren of “G” (whose names he cannot recall) or his two year old grandson, Child T, whom he has never met or otherwise communicated with. At best, this sub-paragraph (a) militates in favour of a slight level of weight to the Applicant.
Sub-paragraph (b): it can be safely found the Applicant is not likely to play any positive parental role in the future lives of the grandchildren of “G” or for that matter, his grandson, Child T. Child E is approaching the age of majority and I am again hard-pressed to find any prospect of the Applicant re-connecting with Child E to the extent where he would be likely to play any sort of parental role in that child’s life before he reaches the age of 18 years. I will put this sub-paragraph (b) to one side and render it neutral for present purposes.
Sub-paragraph (c): we have no way of knowing any extent to which the grandchildren of “G” or Child T have been impacted by the Applicant’s offending or would in future be affected were he to recommit similar offences. These children are most likely not even aware of his unlawful conduct. Of course, it is quite likely that Child E is aware of the Applicant’s offending but in the absence of any evidence from him (or about him) we do not know about any extent to which he has been impacted by the Applicant’s offending or the extent to which he would be impacted were he to recommit similar offences. I will put this sub-paragraph (c) to one side and render it neutral for present purposes.
Sub-paragraph (d): there is no record or evidence of the Applicant having communicated with “G”’s grandchildren since going to prison. He has never communicated with Child T. There appears to be “if and when” telephone contact with Child E. The only safe finding is that any permanent physical separation of the Applicant from the lives of these minor-aged children will be capable of amelioration by him maintaining contact with them by non-in-person means. This is something he will be readily able to do from the United Kingdom. This sub-paragraph (d) should be put to one side and rendered neutral for present purposes.
Sub-paragraph (e): it is plain that each of these identified minor-aged children are primarily parented by other people. The evidence is in no way suggestive he will ever assume any such role in relation to any of them. This sub-paragraph (e) should be put to one side and rendered neutral for present purposes.
Sub-paragraph (f): none of the children’s views about the Applicant’s possible permanent removal to the United Kingdom are known. The grandchild, Child T, is clearly too young to express any such views. This is likely to be the case with the grandchildren of “G” who are either too young or otherwise know little of nothing about the Applicant and his possible permanent removal from Australia. This sub-paragraph (f) should be put to one side and rendered neutral for present purposes.
Subparagraphs (g) and (h): the evidence is silent about any of the elements appearing in both of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.
Conclusion: Primary Consideration 4
Despite the state of the evidence, I have sought to apply that evidence to the relevant componentry of paragraph 8.4(4) of the Direction. Having regard to the extent to which that weight now speaks to the best interests of (1) Child E; (2) the grandchildren of “G”; and (3) Child T, I arrive at a finding that, overall, only a slight level of weight should be allocated to the best interests of these identified minor-aged children about the extent to which they would be affected by the Applicant’s permanent removal to the United Kingdom. I thus arrive at a finding that only a slight level of weight is allocable to this Primary Consideration 4 in favour of the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[40] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[41]
[40] Paragraph 8.5(3) of the Direction.
[41] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
i) 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.
This Applicant has breached the Australian community’s expectations by his record of very serious criminal offending in this country which is evidenced by a significant number of very serious breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a 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:[42]
(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.
[42] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history does contain convictions that fall within the auspices of certainly at least one of the abovementioned sub-paragraphs of paragraph 8.5(2) of the Direction.[43] He has multiple convictions for dreadful crimes of sexual violence against a child. I am easily satisfied that the Applicant’s offending that came before a Queensland District Court for sentencing on 22 October 2020 is so serious that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his Visa.
[43] That being paragraph 8.5(2)(c)
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:
a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));
b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));
c)Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6));
d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and
e)the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).
In relation to sub-paragraph (a) of the immediately preceding paragraph [99], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class BF transitional (Permanent) visa until it was mandatorily cancelled on 30 November 2020. As the Applicant continued to hold this Visa until it was mandatorily cancelled, it can be safely concluded that this Visa permitted the Applicant to remain in Australia without any end point on his stay. Further, it can also be concluded that if his Visa was not mandatorily cancelled in November 2020, the Applicant would have continued to hold the Visa and thus remain in Australia indefinitely. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[44] Therefore this sub-paragraph (a) is not applicable to the Applicant.
[44] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [99], the Applicant has spent 57 years in Australia since arriving here in mid-1968 aged three years. He has spent about 95% of his life in this country and is currently aged 60 years. He has a reasonably good work history in Australia. He has fathered multiple biological children in this country. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [99], I repeat that the Applicant arrived in Australia as a three year old in mid-1968. Therefore, he has spent most his life in Australia and did come here at a very young age. This means the Australian community’s level of tolerance of criminal or other serious conduct by this Applicant is raised.
In relation to sub-paragraph (d) of the abovementioned paragraph [99], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature of his offending that came before a Queensland District Court for sentencing on 22 October 2020 and the resulting harm from the totality of that conduct, has been of such a very serious magnitude as to absolutely dispel any applicable countervailing considerations.
In relation to sub-paragraph (e) of the abovementioned paragraph [99], I am of the view that the totality of the Applicant’s unlawful conduct in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses an albeit low recidivist risk but that the harm resulting from any recommission of his index offending would be so serious such as to render that risk unacceptable to the Australian community were he returned to it.
Having regard to the above discussion around sub-paragraphs (a)–(e) (inclusive) referenced in paragraph [99] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the totality of his offending, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
In the event of his removal to the United Kingdom, the Applicant makes no claim for protection that would potentially engage Australia’s non-refoulement obligations pursuant to this Other Consideration (a). He does not hold a favourable protection finding. It is still open to him to apply for a protection visa. Neither the bar in section 48A of the Act or the prohibition in section 501E of the Act prevent him from doing so. Given the Applicant has this capacity to apply for a protection visa, this Tribunal can defer its assessment of whether non-refoulment obligations are owed to him.[45] In any event, it is a moot point because no such issue is pressed by the Applicant.
[45] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]-[30].
Regardless of the protection visa point, it is fair to say there will very likely be the potential for a specific consequence(s) arising from an adverse outcome for the Applicant in the instant matter. If unsuccessful in this Tribunal, he will be permanently excluded from re-entering Australia. Two likely consequences then result. First, to the extent irreversible exclusion constitutes a legal consequence of this decision, such a contention does not activate the terms of paragraph 9.1 of the Direction. If the outcome in this Tribunal is adverse to the Applicant, the law is plain and clear: section 501E of the Act would prohibit the Applicant from making an application for another visa with the exception of a protection visa.[46]
[46] Section 501E(2) of the Act.
Second, irreversible exclusion is likely to give rise to personal consequences for the Applicant such as: (1) he may experience emotional harm about permanent exclusion but such a factor should be rightly considered in the section of these Reasons relating to impediments he might face upon a forced return to the United Kingdom; and (2) he will be separated from any immediate and extended family and social ties he has to this country but I have already considered those matters pursuant to paragraph 8.3 of the Direction.
I can allocate only slight weight to this Other Consideration (a).
Accordingly, while there may well be legal (and other) consequences for the Applicant if unsuccessful in this Tribunal, it would be unsafe to allocate anything more than slight weight to those legal (and other) consequences.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
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.
Paragraph 9.2(1)(a): the Applicant is 60 years of age and at the start of his senior years. As mentioned earlier he suffered a heart attack in 2011 which resulted in the installation of a stent. It is fair to say the heart attack effectively ended his working life because he has been on a disability support pension since suffering the heart attack. The learned sentencing Judge noted the Applicant experienced some associated depression resulting from the heart attack. Both of these issues appear to be under adequate management and control and, as best as I understood the material, neither of them have interfered with his capacity to serve his term of imprisonment. To whatever extent he may require treatment for any physical or mental health issue, such services will be available to him in the United Kingdom to the same extent as would be available to other citizens of that country. My finding is that the Applicant’s age and his state of physical and mental health are not impediments to his return and resettlement in the United Kingdom. To whatever extent they may be impediments, they are not insurmountable.
Paragraph 9.2(1)(b): the Applicant’s first language is English which, of course, is the primary language spoken in both the United Kingdom and Australia. It is not unreasonable to say (and find) that the United Kingdom is very similar to Australia in terms of cultural norms and practices. There are no substantial language or cultural barriers impeding the Applicant’s return and re-settlement in the United Kingdom.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in the United Kingdom. First, with reference to economic support, it can be noted the Applicant has been assessed as eligible to receive the disability support pension in Australia. The United Kingdom has broadly analogous government support schemes and, on the assumption his heart condition will qualify him for a similar pension in the United Kingdom, he will not face any discernible economic impediment if removed to that country. The question of economic support in the United Kingdom is, at worst, a possible but not insurmountable impediment to his return and re-settlement there.
Second, with reference to medical support available to him in the United Kingdom, to whatever extent he might experience a recurrence of extant or new adverse health symptoms in the United Kingdom, the Applicant will have access to publicly available healthcare that would be generally available to other citizens of that country. It is not unreasonable to say (and find) that the public health system in the United Kingdom is not that far removed in nature, style and quality from that which the Applicant has come to know in Australia. The question of medical support in the United Kingdom is, at worst, a possible but not insurmountable impediment to his return and re-settlement there.
Third, with reference to social support available to him in the United Kingdom, it should be noted that due to the 56-57 years of his life he has spent in Australia, the Applicant is likely to be faced with a lack of socially supportive contacts in the United Kingdom. If he re-established any form of personal communication with his immediate family, it is not an unreasonable stretch of the evidence to suggest (and find) that one or more of those immediate family members could travel to United Kingdom to visit him. It is quite likely the Applicant’s return and resettlement in the United Kingdom will be impeded by a lack of social support available to him there. In my view, this is the most significant of the impediments he will face if removed to the United Kingdom. It is not an insurmountable impediment, but it will be more difficult to overcome that any of the other impediments I have identified.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical and mental health are not insurmountable impediments to his return and resettlement in the United Kingdom;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in the United Kingdom;
·the Applicant is likely to experience a possible, but not insurmountable, impediment in accessing publicly available healthcare support in the United Kingdom;
·the Applicant is likely to experience a possible, but not insurmountable, impediment in accessing economic support in the United Kingdom; and
·in terms of social support in the United Kingdom, I have found that the Applicant will experience an impediment in this regard and while I think such impediment will be the most difficult one for him to overcome, it is not an insurmountable impediment.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on Australian business interests
The Applicant has not been engaged in remunerative employment since the end of 2011 when he was found eligible to receive the disability support pension following him suffering a heart attack. There is little or no indication the Applicant will return to remunerative employment if returned to the Australian community.
To the best of my understanding of the remaining material before me, there is no evidence (or contention) that the Applicant’s removal from Australia would impact any Australian business interest or would otherwise significantly compromise the delivery of a major project or delivery of an important service in Australia. I will put this Other Consideration (c) to one side and allocate neutral weight to it.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of slight weight in favour of revocation;
(b)extent of impediments if removed: is of moderate weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a moderate level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a slight level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1,2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 25 November 2024 to not revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
Date of hearing:
14 February 2025
Representation for the Applicant: Self-represented Solicitor for the Respondent: Ms Elle Tattersall (Special Counsel)
Minter EllisonANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
Section 501G Documents
Various
17 December 2024
R2
Respondent’s Statement of Facts, Issues and Contentions
30 January 2025
30 January 2025
R3
Respondent’s Tender Bundle
Various
30 January 2025
APPLICANT SUBMISSIONS
A1
Applicant’s Written Submissions
26 December 2024
6 January 2025
0