WSYT and Minister for Home Affairs (Migration) - [2019] AATA 4621

WSYT and Minister for Home Affairs (Migration) [2019] AATA 4621 (5 November 2019)
Division:GENERAL DIVISION
File Number: 2019/5127
Re:WSYT
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:5 November 2019
Place:Perth

The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.............................[sgd]...........................................
Deputy President Boyle
CATCHWORDS
MIGRATION - Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – is there another reason why the cancellation decision should be revoked? – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – nature of harm – risk of re-offending low – risk not an unacceptable one – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) - 499, 499(1), 499(2A), 500(1)(ba), 500(6H)(b), 500(6J)(b), 501, 501(3A), 501(3A)(a), 501(3A)(b), 501(6), 501(6)(a), 501(6)(e), 501(7), 501(7)(c), 501(7A), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LZTW and Minister for Home Affairs [2019] AATA 779
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Pinder and Minister for Home Affairs [2019] AATA 1398
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Subasinghe and Minister for Home Affairs [2019] AATA 751
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Toki and Minister for Home Affairs [2019] AATA 742
Trang and Minister for Home Affairs [2019] AATA 4087
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 2, 6.1, 6.1(3), 6.2, 6.3, 6.3(3), 6.3(4), 7(1)(b), 8, 8(3), 8(4), 8(5), 9.1.2(1), 11.1.2(1), Part C, 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1) (b), 13.1.2, 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(3), 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a)(ii), 14.2(1)(b), 14.4, 14.5(1)
REASONS FOR DECISION
Deputy President Boyle
5 November 2019
THE APPLICATION

The Applicant seeks the review of a decision of a delegate of the Respondent made on
12 August 2019 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. The Applicant’s visa had previously been cancelled pursuant to
s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state.
The application for review is made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.
THE ISSUE
The issue is whether the Tribunal should exercise the power in s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the visa.
In addressing the above issue, the Tribunal must determine:
(a)whether the Applicant passes the character test (as defined in s 501(6) of the Act); and
(b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.
BACKGROUND
The Applicant was born in and is a citizen of New Zealand. He arrived in Australia on
[1] R1, G3 at 13.
10 January 1985 at the age of 41.[1]
On 11 October 2017 the Applicant was convicted of four counts of “Unlawfully and indecently dealt with a girl under the age of 13 years” and received sentences of imprisonment totalling seven years which, with concurrency, resulted in a term of imprisonment of two years and three months.[2]
[2] R1, G6.
The convictions were for historical offences committed between 1986 and 1988 against his daughter who was then aged eight or nine years.
The Applicant’s only other Australian convictions are driving offences being three drink driving offences (2008, 2010 and 2014) and one speeding offence (1986).
In 1976 the Applicant was convicted in New Zealand of “Sexual intercourse with a girl under care”. The child in question was his step-daughter. He received a $500 fine. His only other conviction in New Zealand was for careless use of a motor vehicle in 1965 for which he received a fine of $25.00.
On 2 March 2018 the Applicant’s visa was cancelled under s 501(3A) of the Act. It is not disputed that the Applicant has a substantial criminal record for the purposes of
s 501(3A)(a) and that he was, at the time of his visa cancellation, serving a sentence of imprisonment imposed on a full-time basis in a custodial institution for the purposes of
s 501(3A)(b) of the Act. Further, it does not appear to be disputed, nor could it be disputed, that the Applicant does not pass the character test by operation of s 501(6)(e) of the Act because he has been convicted of sexually based offences involving a child.
Following cancellation the Applicant made representations seeking revocation of the mandatory cancellation of his visa which were summarised by the delegate as follows:[3]
·the best interests of his [minor age] great grandchildren
·his remorse and rehabilitation
·his lengthy ties to Australia
·the needs of his partner who has health problems
·his contribution to the community through employment and other activities
·the hardship he will suffer if removed to New Zealand
[3] R1, G4 at 20.
The delegate refused to revoke the cancellation decision on 12 August 2019[4] and the Applicant was notified of this decision by hand on 13 August 2019.[5]
[4] R1, G4 at 18.
[5] R1, G2.
THE HEARING
On 4 September 2019 the Tribunal made directions requiring the Respondent to file and serve a Statement of Facts, Issues and Contentions and any further evidence on which he sought to rely by 25 September 2019 and requiring the Applicant to file and serve a Statement of Facts, Issues and Contentions and any further evidence on which he sought to rely by 16 October 2019. Those directions also listed the application to be heard on 25 October 2019.
The Respondent duly filed his Statement of Facts, Issues and Contentions on

25 September 2019. The Applicant did not file a Statement of Facts, Issues and Contentions or any further evidence by 16 October 2019.
On 18 October 2019 the Tribunal received advice from lawyers, Estrin Saul, that that firm had provided pro-bono legal advice to the Applicant under the Tribunal’s pro-bono referral scheme.
On 21 October 2019 the Tribunal wrote to the Applicant, care of the Yongah Hill Immigration Detention Centre, referring to the orders that were made on

4 September 2019 (see [13] above), noting that the Tribunal had not received the Applicant’s Statement of Facts, Issues and Contentions or any further material that he would seek to rely on at the hearing and advised that in order for material to be considered by the Tribunal any such material had to be filed and provided to the Respondent by close of business 22 October 2019.[6] No such materials were filed.
[6] See ss 500(6H) and 500(6J) of the Act.
Prior to commencement of the scheduled hearing on 25 October 2019, the Applicant advised the Respondent and the Tribunal that he intended to call three witnesses and that he would be relying on other written evidence which had not been, or may not have been, lodged with the Tribunal or provided to the Respondent. The Applicant was not represented on 25 October 2019.
Given the prohibitions contained in ss 500(6H)(b) and 500(6J)(b), and with the agreement of the Respondent, the Tribunal vacated the hearing listed on 25 October 2019 and directed that the matter be listed for hearing on 30 October 2019.
On 25 October 2019 the Applicant provided written material including witness statements.
The application was heard on 30 October 2019. The Applicant was unrepresented and the Respondent was represented by Mr A Gerrard. The following witnesses gave evidence:
(a)the Applicant;
(b)
Ms W, a person whose evidence was that she has known the Applicant for

45 years; and
(c)Ms H, the Applicant’s partner.
The following documents were admitted into evidence:
(a)First Bundle of Documents received from the Applicant on 25 October 2019 with 19 attachments (see [54] below) (Exhibit A1);
(b)Second Bundle of Documents received from the Applicant on 25 October 2019 with five attachments (Exhibit A2);
(c)Witness statement of Ms H dated 25 October 2019 (Exhibit A3);
(d)G Documents (G1 to G26) received on 3 Sep 2019 (Exhibit R1); and
(e)Supplementary Relevant Documents (SG1 to SG7) received on 14 July 2019 (Exhibit R2).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e)(sexually based offence involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...
(Original emphasis.)
Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:
(7A)For the purposes of the character test, if a person has been sentenced to

2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501(6) of the Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child.
(Original emphasis.)
Section 501CA of the Act further provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Ministerial Direction 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act states that “[a] person or body must comply with a direction under subsection (1).”
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA” (Direction 79). The commencement date for operation of Direction 79 was
28 February 2019 (Paragraph 2 of Section 1 of Direction 79).
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
Paragraph 14 of Direction 79 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa,

other considerations must be taken into account where relevant.

These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
THE EVIDENCE
The Applicant

The Applicant suffers from severe hearing loss. At the hearing, in addition to his own hearing aids, the Applicant used the Tribunal “hearing loop” headphones. I am satisfied that he could hear the questions that were put to him and that his ability to engage in the proceedings was not impaired.
The Applicant did not provide a witness statement specifically for these proceedings.
The Applicant has, however, in relation to a range of matters, provided letters and statements which were included in the documents before the Tribunal, in particular in the
G Documents (R1). It would be fair to say that these letters and statements fall into two categories. The first category is those that assert acceptance of responsibility and claim rehabilitation and remorse, and the second category is those that deny any wrongdoing on the part of the Applicant.
The Applicant’s evidence at the hearing was that all of the letters and statements that he had made accepting responsibility for his offences, expressing remorse and claiming rehabilitation were false. These included the letters and material that he sent to the Prisoners Review Board and to the Department of Home Affairs.[7] At the hearing the Applicant reverted to a complete denial of any offending, including complete denial of the offending in 1976 in New Zealand against his step-daughter to which he pleaded guilty (see [9] above) and the offending against his daughter for which he was convicted in 2017 (see [6] above). He also denied that he “behaved inappropriately in a sexual manner” towards his two other step-daughters, S and C, as Braddock DCJ had found.[8]
[7] R1, G11; A1, document 8.
[8] R1, G7 at 36.
[9] Transcript of their evidence is contained in R2, SG2.
[10] R2, SG2.
[11] R2, SG4 at 376-377.
[12] R2, SG2 at 211 and 243.
The Applicant was not charged with any offences against S or C. Both S and C gave evidence at the Applicant’s trial on the charges relating to his daughter for which he was convicted in 2017.[9] The Applicant was also cross-examined at length at his trial on his dealings with S and C.[10] The Applicant admitted fondling their breasts and vaginas but denied penile penetration or attempted penile penetration.[11] Both S and C gave evidence that he had attempted penile penetration.[12]
Braddock DCJ found:[13]
I also accept, having heard the evidence myself that you had behaved inappropriately in a sexual manner towards…[S] and [C]…
I accept their evidence, having heard it, as being honest and accurate….
[13] R1, G7 at 36.
It is well established that this Tribunal cannot impugn the conviction on which the exercise of the power by the decision-maker was based. The Full Court in Minister for Immigration and Multicultural Affairs vSRT [1999] FCA 1197; (1999) 91 FCR 234 (SRT) found at [40]:
…where the decision to be reached [by the Tribunal] depends upon there having been a sentence that satisfies s201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
While the Full Court in SRT was considering an earlier version of the Act (s 201 of the Act as it then was), the analysis is equally applicable to the exercise of statutory powers under s 501 (see also Toki and Minister for Home Affairs [2019] AATA 742 at [61]-[62]).
In relation to the 1976 conviction in New Zealand, I note Bromberg J’s detailed consideration of the relevant authorities in HZCP v Minister for Immigrationand Border Protection [2018] FCA 1803 wherein at [78] he summarised the principles as follows:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
(Emphasis added.)
In the present case, the original decision under s 501(3A) of the Act in March 2018 to cancel that Applicant’s visa (see [10] above) was based on the Applicant’s 2017 convictions for the offences against his daughter. Those convictions cannot be impugned.
The Applicant’s 1976 conviction in New Zealand was as a result of him pleading guilty.

At the hearing the Applicant sought to impugn that conviction by claiming that his lawyer and his then wife, the victim’s mother, told him to plead guilty. I do not believe the Applicant. As became clear at the hearing, the Applicant is someone who is prepared to say whatever he thinks suits his immediate purpose. He conceded as much with his evidence that all of the statements and letters that he wrote asserting acceptance of responsibility for his offending, remorse and claims of rehabilitation were totally untrue.[14] He repeatedly stated that he made those statements to the Department and to the Prisoners Review Board because that was what his “peer support” had told him he needed to say to be granted parole and, possibly, to have the decision to cancel his visa revoked. Looking at the Prisoners Review Board decision,[15] it is clear that the Prisoners Review Board accepted the false claims made by the Applicant and that parole was granted on the basis of those false claims.
[14] Transcript at 36-38.
[15] R1, G13.
It is of concern that, according to the Applicant, the so-called “peer support” provided to him at Acacia prison, presumably with the approval of the relevant authorities, apparently prepare submissions or assist prisoners, or at least this prisoner, in making submissions which they know to be totally untrue. That, however, is a matter for those authorities.
I accept, as I must (see [41] and [42] above), that the Applicant committed the offences of which he was convicted in 2017 and that the Applicant committed the offence for which he was convicted in New Zealand in 1976. The Applicant certainly did not come close to discharging the “heavy onus” to successfully challenge the essential facts underlying that conviction (see [43] above). I also accept, as Braddock DCJ did, that the Applicant did molest his other two step-daughters S and C in 1967 and 1969 respectively.
As noted above, the Applicant has conceded that all of his statements of acceptance of responsibility, remorse and rehabilitation are false. It is difficult to know how to treat the Applicant’s evidence on the other issues covered by his various statements. As the Applicant effectively concedes, a significant proportion of his statements, letters and submissions had been prepared on the basis of what he thought he had to say to achieve the particular purposes, primarily being granted parole, not on the basis of truth. Obviously those statements, or at least the offending parts of those statements, must be disregarded.
As noted at [38] above, the second category of statements made by the Applicant are those that deny any wrongdoing. For the reasons set out above, I do not, or in the case of the offending behaviour for which he was convicted in 2017, cannot, accept his claims of innocence. With the caveat that everything that the Applicant says must be treated with caution, it does seem that the following facts emerge:
·the Applicant was gainfully employed from the time of his arrival in Australia in 1985 up until his retirement in 2014. From 1985 to 1997 he was employed as a mining plant operator and from 1997 to 2014 as a leading hand with [omitted];[16]
·he suffers from severe deafness,[17] gout, severe sleep apnoea, joint arthritis, frequent ventricular ectopics and a pinched nerve in his shoulder;[18]
·he has been involved in positive community activities through his church, rugby club, RSL and bowling club;[19]
·he has good relationships with his two sons, their children and his great grandchildren;[20]
·he has been in a steady relationship with his partner for around 25 years and they jointly own their home;[21] and
·he has no immediate family (except his daughter the victim of the offending for which he was convicted in 2017) in New Zealand.[22]
[16] R1, G9 at 56.
[17] See [37] of these reasons for decision.
[18] R1, G9 at 57 and A1, document 1.
[19] R1, G9 at 58 and G11 at 70.
[20] Transcript at 28-30.
[21] R1, G17 at 90.
[22] Transcript at 27.
The Applicant’s partner (Ms H)
Ms H is the Applicant’s partner. A written statement of Ms H’s evidence was provided on 25 October 2019.[23] Ms H’s evidence was that:
[23] A3.
·she has suffered severe anxiety and distress as a result of the Applicant being incarcerated;
·she has one collapsed lung and limited capacity in the other;[24]
·she can only drive a car short distance;
·her “sister-in-law” (Ms W) takes her shopping and to her doctor’s appointments;
·she has another operation coming up;
·she struggles to do everything around the house and it is very hard to cope on her own;
·she undertook an “altitude test” on her lungs some time ago and was considered by her doctor to be unable to fly. More recent tests have shown that her lung capacity has not improved;[25]
·she and the Applicant have lived together for 23 years and cannot live without each other;
·the Applicant’s daughter, who laid the complaint against the Applicant which resulted in his 2017 convictions, has never had an issue with the Applicant. The daughter stayed with Ms H and the Applicant when she was in Australia. When Ms H and the Applicant visited New Zealand, the daughter visited them the day that they arrived and invited them to her house for dinner; and
·the Applicant was the victim of his daughter’s lies.
[24] Transcript at 60.
[25] Transcript at 64.
I accept that Ms H’s evidence was sincere and honest. Her evidence was, however, in my assessment given on the basis that the Applicant was innocent of any of the inappropriate sexual behaviour of which the he has been accused/convicted.
Ms W
Ms W provided a letter of support dated 13 March 2018.[26] She also gave evidence at the hearing. She confirmed in the hearing that she wrote this letter in support of the Applicant’s application for parole.[27]
[26] A1, document 3.
[27] Transcript at 59.
Ms W’s evidence was that:
·she has known the Applicant for 45 years;
·she has “been in his family” for that time. Her late husband was brought up with the Applicant in New Zealand;
·she has never known the Applicant to be violent or have a temper;
·the Applicant did not learn to read and write, left school early to support his family and had always gone out of his way to help people;
·when her husband died she came to Perth and stayed for a year with the Applicant and Ms H. She had her five daughters and two sons with her;
·the Applicant was like a second father to her children and they love him;
·in all the time that she has known the Applicant, he has never done anything to cause her to have concern about him being around children;
·the Applicant and Ms H are devoted to each other;
·Ms H has suffered significant health issues over the last couple of years and Ms W has looked after her while the Applicant has been in prison and immigration detention;
·the Applicant is profoundly deaf, even with hearing aids and has a tendency to simply “agree” with what people are saying because he does not hear them; and
·the Applicant was imprisoned because of lies told by others.
Within the bundle of documents lodged by the Applicant (A1), there were also the following documents:
·letter of support from Mr H (a relative of Ms H).[28] He did not give evidence;
[28] A1, document 2.
·handwritten notes of the Applicant (apparently) saying that he had been wrongly convicted;[29]
[29] A1, documents 5 and 6.
·letter from the Applicant to the Department of Corrective Services in support of his application for parole.[30] This letter expressed acceptance of responsibility, remorse and pledge of ongoing treatment for his offending behaviour. The Applicant conceded at the hearing that all of the claims in this letter were false (see [39] above);
[30] A1, document 7.
·letter from the Applicant to Prisoners Review Board effectively in the same terms as document 7;[31]
[31] A1, document 8.
·document headed “Addressing my offending behaviour” submitted by the Applicant in support of parole.[32] The Applicant in cross-examination conceded that the assertions and statements made in this document were untrue;[33]
[32] A1, document 9.
[33] Transcript at 41-42.
·handwritten letter from the Applicant addressed “To whom it may concern” setting out the medical issues faced by Ms H including her then recent hospitalisation;[34]
[34] A1, document 10.
·
handwritten letter from the Applicant addressed “To whom it may concern” explaining that he incorrectly filled out his incoming passenger card when coming back from New Zealand in 2008 as having no criminal convictions by mistake.[35] His evidence at the hearing was to the same effect.[36] He claimed that he thought that in order to have a criminal conviction you had to be imprisoned and, as he was only fined on his conviction for sexual intercourse with a child under his care,
[35] A1, document 11.
[36] Transcript at 45.

he did not have a criminal conviction. The Applicant’s explanation is inherently improbable and given the Applicant’s preparedness to lie when it suits him, I do not believe the Applicant;
·
letter dated 19 May 2018 to “parole board” from woman describing herself as the de-facto partner of the Applicant’s son saying that, amongst other things,

the Applicant had expressed to her his remorse for the offences committed and told her that he would actively seek rehabilitation;[37]
·letter dated 1 June 2018 to “parole board” making statements to the same effect as document 12;[38]
·letter dated 5 June 2018 from the Co-ordinating Chaplain of Acacia Prison saying that the Applicant is “polite, respectful, and very quiet”;[39]
·letter dated 1 May 2018 from the Applicant to Peter Dunlop, clinical psychologist, seeking his services and treatment (This letter appears to have been provided to the Prisoners Review Board in support of the Applicant’s application for parole);[40]
·letter dated 23 June 2018 from Peter Dunlop to the Applicant offering to provide the Applicant with individual psychotherapy;[41]
·letter dated 4 July 2018 from the Applicant to Peter Dunlop referring to needing to address his “offensive behaviour”;[42] and
·letter dated 17 May 2018 from the Applicant’s son to the parole board to the same effect as documents 12 and 13 above.[43]
CONSIDERATION
[37] A1, document 12.
[38] A1, document 13.
[39] A1, document 14.
[40] A1, document 15.
[41] A1, document 16.
[42] A1, document 18.
[43] A1, document 19.
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63]. The character test is defined in
s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. This phrase, in turn is defined in
s 501(7)(c) which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. That is clearly so in the Applicant’s case. Under s 501(6)(e) of the Act, a person will not pass the character test if he has been convicted of a sexually based offence involving a child. Again, that is clearly so in the Applicant’s case.
The Applicant does not pass the character test. The Applicant cannot rely on
s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian Community from criminal or other serious conduct (13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that 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, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and 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 non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;

On any measure the Applicant’s sexual offending, first against his step daughter and then against his daughter, is very serious. I also accept, as Braddock DCJ did, that the Applicant also behaved sexually inappropriately towards his other step-daughters and that that behaviour is to be viewed very seriously. The Respondent contends that predatory sexual offences committed by the Applicant against his daughter over an extended period are very serious, not only because of the nature of the offences themselves, but also because the Applicant’s threatening and predatory behaviour in relation to the offences.[44] The Tribunal agrees with the Respondent’s characterisation of the Applicant’s offences noting, that in any event, by operation of subparagraph 13.1.1(1)(a) of Direction 79, sexual offences are to be viewed very seriously.
[44] Respondent’s Statement of Facts, Issues and Contentions (SFIC), at [20].
The facts of the Applicant’s offending are set out in the sentencing remarks of Braddock DCJ as follows:[45]
[45] R1, G7 at 34-35.
The dates are charged between the end of July ’86 and 1 October ’88, but the period itself was a narrower one. But it is clear that at the time, [the Applicant’s daughter], was eight or nine years old. The offending took place in your own home.
I heard the evidence from [the Applicant’s daughter] at the same time as the jury and everybody else who was in court heard the evidence. I can say this. I found [the Applicant’s daughter] to be a compelling witness.
What she said was that this occurred in the daytime, in your bedroom. She didn’t know where her mother was. And on that occasion, you grabbed her, put your arms around her, kissed her all over the face, and then she recalls being put onto the bed, that she was touched on the chest, breast area; that you lay behind her; that first you had touched on top of the clothing and then under the clothing; that you put your hand into her knickers; you touched her vagina with your hands, rubbing her in the vaginal area; that your hands were around the front of her; and that then she felt something wet and slimy coming – pushing at her vagina from behind.
In those circumstances, when your hands were identified as being around her and to the front, I am satisfied that that was your penis.
This was an event that took some time; it wasn’t a brief touching and that when the behaviour concluded you told her not to tell; that it was a secret.
In addition to that core evidence that concerns the facts of the offence – and I accept what [the Applicant’s daughter] said you did – I accept what she said, which amounts to saying that this was not one opportunist and isolated occasion. It was opportunist in the sense that in this instance it was in the day time and you were alone in the house with her.
But that I accept what she said that there were other occasions of sexual contact when she was very young between her and yourself, whether you were watching videos in the lounge or whether she had fallen asleep. And that you would on other occasions feel rubbing firstly at her back and then rubbing between – on the outside of her clothing, then under the clothing where her chest would have been.
And then she would feel your hand go inside her clothing to the chest area and down to her stomach, and that your fingers would go into her underwear and you would rub her in the vaginal area, and that this was repeated conduct. That is not to say that it was daily or constant conduct.
The evidence was that you worked away substantially during the time she was a young girl and growing up, but nevertheless I find that these offences occurred in the context of conduct that you had initiated when she was much younger at about five years of age and continued.
And that subsequently on the occasion that she told us about at the trial you had at your son’s house reached out to touch her when you were visiting and staying in the same room; the lounge room and that she had on that occasion shouted out and stopped you.
In effect the conduct towards her generally did not cease because you desisted, but because she reached an age or a stage where she was prepared effectively to stand up to you. She was your daughter, this of itself is a very gross breach of trust. That relationship between a father and a daughter should, by all human instincts be one of care, protection and nurturing in every sense of the word.
She was young; in relation to these offences I have already said eight or nine years old and very vulnerable to you, because you were her father. She had no general reason to distrust you and she knew nothing else…
I also note the evidence of the Applicant’s step-daughters S and C[46] which was accepted as by Braddock DCJ as “honest and accurate”.[47]
[46] R2, SG 2 at 208-231 and 241-249.
[47] R1, G7 at 36-40.
The Tribunal notes Braddock DCJ’s following comments in sentencing:
I also accept having heard the evidence myself that you had behaved inappropriately in a sexual manner towards your stepdaughters in relation to [S] and [C], matters which you were never charged with, they never complained about, and in relation to [omitted] more generally but also specifically in relation to the matter that you pleaded guilty to in New Zealand in 1975.
I accept their evidence, having heard it, as being honest and accurate, and from that, I conclude that you did have an interest, an improper, unlawful interest, in girls of a young age and a sexual interest, in effect.
I further accept, as has been submitted to me, that though you might have a propensity, it does not mean that you would act upon it in every instance or that it would persist forever over the years…
I’ve also heard and read about you more generally. Your references speak of a hardworking, honest, generous, kind, trustworthy and helpful man. It’s also clear from your son [omitted] reference that you are well regarded by your workmates with whom [omitted] also worked, because you worked together for a number of years.
The references come from family, your neighbours and indeed two of your granddaughters. Clearly, in relation to all of those people, you have behaved in an impeccable fashion and I accept what they say. However, they did not sit through the trial and hear of the other way in which you behaved.
You’re now a man of some 75 years. You worked hard and long over the years, born in New Zealand to support your family there and then in Australia to support your family here. That includes your two sons and your daughter [omitted].
You worked as a driver, you worked on the mines and I have no doubt that you’ve been a hardworking man all your life and that you supported your family, sometimes working in very harsh conditions.
You suffer now from the certain effects of age that have been obvious during the course of the trial. Your hearing is not good. I accept that you suffer from sleep apnoea…
…
I’ve also been told and I accept that your current partner, Ms [H] who gave evidence at the trial, suffers from a significant respiratory condition. She described it I think in court as emphysema and it was apparent to me that she had breathing difficulties. And I am told and I have no reason not to accept that she was in hospital even a week before the trial.
Clearly, she is a very loyal wife to you and from that, I also conclude that despite this conviction and your past behaviour you have qualities that engender loyalty in those that are close to you.
You have sons and they have families here. You are highly regarded by all of your family. You have, in effect, enjoyed that good reputation over the years since these events, notwithstanding the existence of this behaviour in the past.
…
You maintain your position that you are not guilty of these offences and that you were not guilty of the conduct underlying the offence in the New Zealand court. Neither of those propositions can I accept. In my view, you have obviously demonstrated no remorse for your conduct.
…
There is, in my view, no evidence of positive rehabilitation in this case, simply the passage of time. That is to say, rehabilitation cannot commence unless there is an acknowledgement that there is a need for rehabilitation, which is an acknowledgement of offending or of any other form of misconduct.
…
I do accept that you must now, at your age, be considered in all of the circumstances to be personally at low risk of reoffending, but not no risk. One can never, in my view, say that in cases of this kind.
It was as a result of these convictions that the Applicant’s visa was cancelled under

s 501(3A) of the Act on 2 March 2018.
The Respondent notes that Direction 79 specifically identifies sexual offences against children as offences which are viewed very seriously: see paragraphs 6.3(3) and 13.1.1(1)(a) and (b) and submits that the Applicant’s offences are particularly repugnant having regard to their sustained nature, the victim’s “tender” age, the filial relationship and the clearly predatory actions of the Applicant.[48]
[48] Respondent’s SFIC para. 23.
The Respondent contends that:[49]
Taking into account the nature and pattern of the offences, their effect on the victim, the sentences imposed, the comments of the sentencing Judges [sic], and the specific guidance and principles set out in Direction No 79, the respondent contends that the nature and seriousness of the applicant’s conduct is a significant consideration that weighs very heavily against revocation of the decision to cancel the applicant’s visa.
[49] Respondent’s SFIC para. 24.
The Tribunal agrees with the Respondent’s characterisation of the nature and seriousness of the Applicant’s offending. In so finding I have considered the seriousness of the offending taking into account the sexual nature of the offences and the fact that they must be viewed very seriously, that the crimes were committed against children, specifically children in the Applicant’s care, the lengthy sentence imposed by the court, the frequency of the Applicant’s offending and the cumulative effect of his offending. I find that this consideration weighs significantly against the revocation of the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
56. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
57. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
This Tribunal agrees with and adopts the approach taken by Senior Member Dr M Evans as it did in LZTW and Minister for Home Affairs [2019] AATA 779, Subasinghe and Minister for Home Affairs [2019] AATA 751 and Trang and Minister for Home Affairs [2019] AATA 4087 (Trang).
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the Applicant were to repeat his offending behaviour is obvious and serious. The Tribunal notes the comments of Braddock DCJ that:[50]
I accept, however, that your conduct has had a profoundly negative effect on your daughter [omitted]’s development and life. I would perhaps not express it in the way that she would, but she cannot but help to have been affected significantly as she claims.
[50] R1, G7 at 37.
The Tribunal finds that the harm to individuals or the Australian community if the Applicant were to re-offend in the nature of his previous criminal offending would be significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
The Respondent’s primary submission is that the nature of the harm to the community, involving sexual offences against young children, should the applicant again commit similar offences, means that the community should not be expected to tolerate any risk of similar offences being repeated.[51]
[51] Respondent’s SFIC para. 26.
The Respondent concedes that the Applicant’s advanced age and the time that has passed since the offences were committed indicate that there is a low risk of similar offending.[52] The Respondent does, however, point to the comment of Braddock DCJ in sentencing the Applicant that while she considered the Applicant to be a low risk, it could not be said that he was no risk at all (see [62] above).
[52] Respondent’s SFIC para. 27.
The Respondent points to the fact that the Applicant was also convicted in 1975 of a child sex offence in New Zealand against his step-daughter and to Braddock DCJ’s comments about inappropriate behaviour towards his other step-daughters S and C although charges were not laid (see [62] above).[53]
[53] R1, G7 at 36.
According to the Respondent the Tribunal is entitled to be concerned that, having engaged in a sustained course of abuse against first his step-daughters, and later his daughter, and with the court having made a propensity finding, the Applicant remains untreated in this regard.
Also of significance, in the Respondent’s submission, are:
(a)the Applicant’s attitude towards his victims;
(b)the Applicant’s “feigned remorse”;
(c)his plea of not guilty to the charges relating to his daughter;
(d)his claim that his victim tried to extort money from him and it was only when he refused to pay that she made trouble for him;
(e)
his belated change of story and supposed acceptance of responsibility

(from which, I note, he has now resiled); and
(f)his claim that his daughter’s circle of friends would make trouble for him if he were to return to New Zealand.
The Respondent submits that this changeable attitude to remorse reflects poorly on the Applicant’s credibility and is demonstrative of a person who is willing to say anything to achieve a desired outcome. In this regard, the Respondent also notes that the Applicant dishonestly completed his passenger entry card in 2008 by declaring that he had no criminal conviction.
The Respondent, in his SFIC, concedes that there has been some limited rehabilitation undertaken by the Applicant while in prison and immigration detention and that the Prisoners Review Boards did grant him conditional release on parole on 21 November 2018 (R1, G13). The Applicant has, however, in the Respondent’s submission, engaged in overt denigration of his victim and his current stance is clearly at odds with the conclusions of the Prisoners Review Board. Any claims of remorse and rehabilitation must therefore be questionable.
As became clear at the hearing, any remorse and claims of rehabilitation previously made by the Applicant, particularly those made to the Prisoners Review Board, must now be dismissed given the Applicant’s concession that they were all made because that was what he was told he had to say to get parole, not because any of it was true. I note that the grant of parole by the Prisoners Review Board must also now be viewed in the light of the fact that the Applicant deliberately misled the board.
The Respondent contends that given the nature of the offences and the nature of the harm to individuals, including vulnerable persons, should the Applicant engage in further criminal conduct of this nature, the Australian community should not be expected to tolerate any risk of reoffending.[54]
[54] See paras 6.3(3) and (4) and 13.1.2(1) of Direction 79.
As noted above, the Applicant did not lodge a Statement of Facts, Issues and Contentions. Further, the main, if not sole, thrust of the Applicant’s submissions at the hearing was that he did not commit any of the offences of which he has been convicted or engage in the inappropriate sexual behaviour which his step-daughters S and C described in their evidence.
The obvious facts that are in favour of the Applicant not reoffending are his age, 76 years, and the fact that the offending occurred between 50 and 32 years ago. Both of these factors are accepted by the Respondent. The decrease in the likelihood of sexual reoffending with age is widely accepted (see Pinder and Minister for Home Affairs [2019] AATA 1398 (Pinder) at [71]).
As noted, the second major factor in considering the likelihood of the Applicant reoffending is the time since his last offence which is around 32 years. There is no evidence that there has been any repeat of offending behaviour since the time of that last offence for which the Applicant was convicted.
Another factor that I think needs to be considered in looking at the likelihood of the Applicant re-offending is that a common theme of the Applicant’s sexual offending was the exploitation of his position as the victims’ carer. It is highly unlikely that the Applicant will be in such a position in the future. Even if he were minded to re-offend in the manner that he did in the past, the opportunity for such offending is significantly less now than it was then. I note counsel for the Respondent’s concession in opening that: [55]
Certainly it’s highly unlikely that the applicant would engage in the very specific kind of sexual offending he undertook in the ‘60s, ‘70s and ‘80s.
And, that the Applicant’s current present circumstances:[56]
…drastically limits the chance of the same kind of offending happening again but we would not accept that there is zero chance of offending - - -
[55] Transcript at 13.
[56] Transcript at 14.
Direction 79 deleted paragraph 13.1.2(1) of Direction 65 which specifically addressed the consideration of unacceptability of risk of harm in a case involving revocation of a mandatory cancellation of a visa. I note that provisions to the same effect in paragraphs 9.1.2(1) and 11.1.2(1) were not deleted. Notwithstanding this, I consider that the relevant test in the case of revocation of cancellation of a visa is still whether the risk posed by the Applicant is an unacceptable one, not whether there is no risk at all. That approach is consistent with the principles enunciated in paragraph 6.3 of Section 1 of Direction 79,

in particular paragraph 6.3(4).
In the present case I am of the view that, while the Applicant would not be considered to have undertaken any genuine rehabilitation, and accepting that there is a risk of the Applicant re-offending and that the harm that would be caused if he were to re-offend in a sexual manner would be serious, because of the extremely low likelihood of the Applicant reoffending, it is a risk that, in all the circumstances, is not an unacceptable one.

This consideration therefore weighs in favour of the revocation of the cancellation of the Applicant’s visa.
Second primary consideration: The best interests of minor children in Australia affected by the decision (13(2)(b))

Paragraph 13.2 of Direction 79 provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a.The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b.The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c.The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d.The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e.Whether there are other persons who already fulfil a parental role in relation to the child;
f.Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g.Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h.Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant did not identify any minor children in his Personal Circumstances Form.[57]
In that document, presumably in error, he identified his three adult children. At the hearing the Applicant stated that he has five grandchildren and three great grandchildren.
[57] R1, G9 at 52.
[58] Transcript at 34.
His evidence was that only his great grandchildren are minors. One of them lives in Canada, one lives in Queensland and only one lives in Western Australia.[58] All of the great grandchildren live with their parents. The great grandchild in Canada is not relevant as she or he is not a minor child in Australia.
The Respondent concedes that notwithstanding the absence of direct evidence in this regard, the best interests of the great grandchildren would be best served by the revocation of the cancellation of the visa. The Respondent’s position is that in all of the circumstances this consideration should not be given much weight.[59]
[59] Respondent’s SFIC para. 38.
I appreciate the requirement of paragraph 13.2(3) that the interests of each of the children needs to be considered, however, that is difficult in the present case when very little relevant evidence was provided by the Applicant for that exercise to be undertaken.
I have, however, based on the Applicant’s response to questions at the hearing, taken into account the fact that the Applicant’s role has not been parental, that his contact with both of the relevant great grandchildren has been very limited, that he would still be able to maintain telephone or video contact with them, which is the only contact that he has at the moment and that, as far as the evidence indicates, others are providing full parental roles.
I agree with the Respondent’s submission that this consideration does weigh in favour of the revocation of the cancellation of the visa but that no significant weight should be given to it.
Third primary consideration: Expectations of the Australian Community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [32] above).
As this Tribunal noted in Trang at [96]-[97], the proper construction of paragraph 13.3 of Direction 79 and Justice Mortimer’s interpretation of that paragraph in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) have been the subject of much judicial analysis and, it would be fair to say, disagreement. The two approaches that emerged following her Honour’s decision on YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder).
That debate as to which approach is correct appears to have been resolved by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) delivered on 24 October 2019. The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman) (delivered 31 October 2019).
Justice Stewart in FYBR (FC) found:
89It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth in FYBR (FC) notes that it is necessary to determine the context of the deemed expectation by reference to the paragraph itself rather than some factual inquiry. That task of the decision-maker is to identify the government’s view of community expectation and to have due regard to it. Her Honour notes at [73]:
…The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction.

The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Charlesworth J goes on to observe:
75Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with

cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
79…The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
As Member Burford put it in Rehman at [173]-[174]:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.

Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
I find that the Applicant has committed serious crimes and that the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of the Applicant’s visa should not be revoked. This primary consideration therefore weighs against the revocation of the cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.

These considerations include (but are not limited to):
a. International non-refoulement obligations;
b. Strength, nature and duration of ties;
c. Impact on Australian business interests;
d. Impact on victims;
e. Extent of impediments if removed.
Non-refoulement obligations (14(1)(a))
I am satisfied that no non-refoulement obligations arise in the present case.

This consideration is not relevant.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has lived in Australia for nearly 35 years. He was 41 years old when he arrived. Clearly 35 years is a long time and weight must be given to that fact, however, his offending against his daughter started within a relatively short time after his arrival. Braddock DCJ stated that the offending for which he was convicted occurred in the period from the end of July 1986 to the beginning of October 1988.[60] Accordingly, less weight is to be given to the length of time that the Applicant has lived in Australia.[61]
[60] R1, G7 at 34.
[61] Direction 79, para. 14.2(a)(i).
It is, however, the case that the Applicant has contributed positively to the community since his arrival being constantly employed for the whole period up to his retirement in 2014 and that he has contributed to the social fabric of the community through his involvement in his church and various clubs (see [49] above). Paragraph 14.2(1)(a)(ii) therefore requires that more weight be given to the length of time that the Applicant has lived in Australia.
The factors to be taken into account under paragraph 14.2(1)(b) of Direction 79 weigh significantly in favour of the Applicant. I accept that he has ties through the various community organisations with which he is involved (see [49] above) and through his sons, his grandchildren and his great grandchildren who live in Australia. While it appears that since he has been incarcerated his contact with his family has been limited mainly to telephone contact, I accept that the Applicant is close to his sons and their partners, his grandchildren and, although they are very young, his great grandchildren and that they are fond of him.
The Applicant’s other significant tie to Australia is his long term, and it appears constant, relationship with his partner Ms H. I accept that she suffers from significant health issues which are not likely to improve. I accept that her lung condition prevents her from flying.

I also accept that she requires oxygen and requires assistance with daily living activities such as shopping and housework and that she cannot walk more than a short distance. Her evidence, which I accept, was that she also cannot drive any significant distance.[62]
[62] Transcript at 60 and A3.
The Applicant and Ms H jointly own their home. No money is owed on the property.
Ms H is a New Zealand citizen so could, in theory, relocate to New Zealand with the Applicant if he were to be deported. I accept that, for medical reasons, that would not be a realistic possibility.
While Ms H is presently receiving assistance from Ms W with tasks such as attending doctor’s appointments and shopping, Ms W does not live with Ms H and visits her to see how she is “every day or every other day”.[63] While Ms W indicated in cross-examination that, if the Applicant were to be deported, she would continue to provide whatever assistance she could to Ms H,[64] I accept that that would not be at the same level as the assistance and support that would be provided by the Applicant.
[63] Evidence of Ms W, transcript at 60.
[64] Transcript at 61.
I find that the effect of non-revocation of the cancellation of the Applicant’s visa on his sons and other family members, would be significant, and in the case of Ms H, extremely significant. She is, in my view, heavily reliant on the Applicant both emotionally and physically.
The Respondent’s position as set out in his SFIC is:[65]
… the respondent concedes that the applicant clearly has ties to Australia, albeit not to the extent that they should outweigh the protection and expectations of the Australian community.
[65] Respondent’s SFIC para. 48
I take the above statement of the Respondent to be a concession that this consideration weighs in favour of the revocation of the cancellation of the visa. Whether that consideration is outweighed by others is a different issue.
In my view this consideration weighs very heavily in favour of the revocation of the cancellation of the visa.
Impact on Australian business interests (14(1)(c))
The Applicant is retired. Neither party made any submissions on this consideration. I find that this consideration has no application in the present matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1)Impact of a decision not to revoke on members of the Australian community, including the victims of the non-citizen’s criminal behaviour, and the family members of the victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Neither party made any submissions on this consideration. All of the Applicant’s victims live in New Zealand. Somewhat unusually, if one were to consider whether the best interests of the Applicant’s victims would be served by the Applicant staying in Australia or being deported to New Zealand, they would be better served by the Applicant remaining in Australia. In other words in the present case any negative impact, on the victims would be if the cancellation of the visa was not revoked.
Paragraph 14.4 of Direction 79, however, directs the decision-maker to consider the impact of a decision not to revoke on members of the Australian community, including the victims, not those in other countries. That is somewhat curious given that a decision not to revoke the cancellation would result in the non-citizen leaving Australia. It is not clear how the offending non-citizen being forced to leave Australia would impact victims in Australia other than positively. I would have thought that the relevant consideration would be the impact of a decision to revoke the cancellation, that is, the impact on victims in Australia of letting the non-citizen stay in Australia.
I therefore give no weight to the consideration as expressed in paragraph 14.4 of Direction 79. I note, however, that paragraph 14 of Direction 79 states that the decision-maker must “[i]n deciding whether to revoke the mandatory cancellation of a visa” take into account “other considerations” which “include (but are not limited to)” those listed in subparagraphs (a) to (e).
For the reasons set out in [117] to [118] above, the best interests of the Applicant’s victims, all of whom live in New Zealand, would be better served by him not being deported to New Zealand. While this is a matter that I consider weighs in favour of revocation of the cancellation of the visa, I give this only minimal weight.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1) 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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.

I accept that the Applicant has no direct family, other than his daughter and step daughters, living in New Zealand. As they were his victims it is unlikely that they would provide support to the Applicant in re-establishing himself in New Zealand.

The Applicant’s evidence was that his daughter and her friends would be likely to make trouble for him if he were to be sent back to New Zealand.[66]
[66] Transcript at 48.
The Applicant accepted that he would be entitled to a pension in New Zealand, which he thought was around $800 a fortnight and that he would get an additional amount around $400 a month from Australia.[67]
[67] Transcript at 57.
He conceded that as he lived in New Zealand for the first 41 years of his life, he is familiar with the country and its culture. He also conceded that he has a house in Australia which is encumbrance free and that he could sell it to re-establish himself in New Zealand.[68]

He put the value of that house at around $300,000 while Ms H, the joint owner, put the value at around $380,000.[69]
[68] Transcript at 56.
[69] Transcript at 65.
The Applicant is 76 years of age and not in particularly good health (see [49] above).

I accept that these factors would be an impediment to the Applicant re-establishing and maintaining himself in New Zealand. There are no apparent cultural or language barriers.
The Respondent summarises his position at paragraph 50 of his SFIC as follows:
The respondent concedes that the applicant is likely to experience some hardship as a consequence of returning to New Zealand. The applicant is 76 years old and is said to suffer from an array of ailments which are common for a person of his age. The respondent acknowledges that there are likely to be some transitional difficulties but those impediments would by no means be insurmountable. New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security. There are also organisations such as People at Risk Solutions (PARS) which provide assistance to persons who are removed from Australia to New Zealand and in this regard the respondent notes the comments of the Tribunal in CFVG and Minister for Immigration and Border Protection [2017] AATA 1395 at [90]:
The Tribunal also notes the considerable efforts of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated.
(Footnotes omitted.)
I agree with the Respondent’s summary. I find that there would be some minor impediments in the Applicant re-establishing and maintaining himself if he were to be sent back to New Zealand, and that this is a consideration that weighs in favour of revocation of the cancellation, only minor weight is to be given to this consideration.
The Weighing Exercise
Guidance is given by Direction 79 of how the decision maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.

They provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217.
Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
The Tribunal agrees with the approach outlined by Senior Member Dr M Evans.
Looking at the first primary consideration, the protection of the Australian community,

the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in [72] to [86] above I find that the likelihood of the Applicant re-offending is very low and that the risk is not an unacceptable one. I find that in the present case this consideration weighs in favour of revocation of the cancellation.
The second primary consideration, the best interests of minor children in Australia weighs in favour of the revocation of the cancellation of the visa, however not to a significant extent. The third primary consideration, the expectations of the Australian community, in my view, this consideration weighs against revocation of the cancellation of the visa, which, as a result of the decision in FYBR (FC) (see [95]-[100] above), it always must.
I find that the consideration of the strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)) in particular the impact that the Applicant’s deportation would have on Ms H, weighs heavily in favour of the revocation of the cancellation of the visa and that the consideration of the impediments that the Applicant will face if he is removed weighs marginally in favour of revocation. I am very mindful of the seriousness of the Applicant’s offending and the consequences that would flow if he were to re-offend, but I am satisfied that the risk of the Applicant

re-offending are so low that the factors that weigh in favour of revocation of the cancellation outweigh those that weigh against revocation of the cancellation.
CONCLUSION
The Applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, I am satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

............................[sgd]............................................
Associate
Dated: 5 November 2019

Date of hearing: 30 October 2019

Applicant: In person

Representative for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	30 October 2019
Applicant:	In person
Representative for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor