XLFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

XLFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1510 (28 May 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1382
Re:XLFM
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:28 May 2021
Place:Sydney

I affirm the delegate’s decision refusing to revoke the decision cancelling XLFM’s Class AH Subclass 101 Child visa.
..................................[sgd]......................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s Class AH Subclass 101 Child visa – applicant is a citizen of Kenya – attempted sexual intercourse without consent – robbery armed with an offensive weapon – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction no. 90 – protection of the Australian community – family violence – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – international non-refoulement obligations – decision under review affirmed
LEGISLATION
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975(Cth) ss 4, 4AB
Migration Act 1958(Cth) ss 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Mr Rob Reitano, Member
28 May 2021

XLFM is a citizen of the Republic of Kenya (Kenya) who came to Australia on a ‘Class AH Subclass 101 Child visa’ (visa). He has spent a little over four of his 11 years in Australia in prison for two criminal offences: attempted sexual intercourse without consent with the 17 year old sister of his former partner in her home and robbery armed with an offensive weapon at a petrol station late one night.
His permission to remain in Australia came to an end when the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) acting in accordance with what he was required to do by s.501(3A) of the Migration Act 1958 (Cth) (Act) cancelled the visa because XLFM failed what is known to the Act as ‘the character test’. He failed that test because he had a ‘substantial criminal record’ as a result of his being sentenced to more than 12 months imprisonment for his criminal offending which he was serving at the time the Minister made his decision.
When the Minister cancelled the visa, he invited XLFM to make representations to him about revoking the visa cancellation. XLFM made representations in accordance with the invitation and the related regulatory requirements. The Minister’s delegate considered those representations and decided not to revoke the cancellation of the visa because the delegate did not consider that there was ‘another reason’ for doing so.
XLFM has asked the Tribunal to review the delegate’s decision, set it aside and instead make a decision revoking the cancellation of the visa so XLFM can remain in Australia.
I have decided to affirm the delegate’s decision because I am not satisfied there is another reason to revoke the cancellation of the visa. These are my reasons for that decision.
I should indicate before giving my reasons that in the course of preparing these reasons it became apparent that publication of the reasons for decisions would identify the victim of one of the offences who was under 18 years of age when the offence was committed. I have therefore decided to make a confidentiality order to ensure that her identity is not published.
XLFM’S EARLY YEARS IN AUSTRALIA
XLFM is 26 years old. He was born in Kenya. He lived with his mother and her partner who he believed was his father. His mother died when he was 11 years old. He lived with his mother’s partner’s parents after his mother’s death although it would seem he was living at a number of different places ‘couch surfing’ as he described it.
He came to Australia with his uncle when he was 15 years old. When he came to Australia, he met his biological father who is apparently a citizen of Australia. XLFM lived with his biological father for a short time but then moved to live with his uncle. It is fair to say that his early years in Australia were difficult having moved homes and, so it would seem, struggling to feed and clothe himself.
He attended high school in Sydney’s south west. Shortly after he started school he started living with Mr and Mrs G who eventually became his guardians. He played sport at school. He was the Sports Captain. He was good at sport and participated in Australian Rules Football, football, and athletics. He was well liked by students and teachers. After he finished school and obtained his Higher School Certificate, he trained and qualified as a nurse’s assistant. He worked at St Vincent’s Private Hospital as a nurse’s assistant. He also had employment in some other positions at a fast food outlet, doing gardening in a self-employed capacity and catering at various times since 2012.
XLFM grew up with Mr and Mrs G’s children who are now nine, 11, 14 and 18 years old. He said in his evidence that they look up to him and he wants to be a role model for them. He has not seen any of them whilst he has been in prison but has spoken to them weekly on the phone and written letters to them. He baby sat them, engaged with them in school activities, and things like that before he went into custody. He regards them as his friends and as part of his family.
In 2011 he started a relationship with Ms A. Later he and Ms A lived together as partners. The relationship, according to XLFM was generally a caring and positive one although it appears to have had its difficulties at times. In mid-2014 those difficulties manifest themselves when the two of them had an altercation. XLFM took Ms A’s phone and threw it damaging or destroying it. He was charged with offences of common assault and destroy or damage property involving domestic violence. The Magistrate put him on a good behaviour bond for 18 months and did not record a conviction for either offence. Mrs G’s opinion is that ‘this relationship was difficult as both parties were immature and their upbringing was different.’ That opinion has an air of likelihood about it.
In September 2015 Ms A and XLFM had a baby. Ms A, XLFM and the child lived together, according to Mrs G ‘on and off’, until mid to late 2016, about five months before XLFM went to prison. The child would have been a little more than one year old at the time that his parents stopped living together. XLFM continued to have daily contact with the child taking the child to the park, to childcare, to the doctor when necessary and so on. At some stage Ms A’s younger sister came to live with Ms A, XLFM and the child, but it seems at least by the time of the offending against Ms A’s sister to which I will refer in a moment he was not living permanently with Ms A and the child. Mrs G said that there was some difficulty for XLFM when he and Ms A and Ms A‘s sister were living together because XLFM was affected by the fact that he was the only one working and paying all the bills.
Ms A has re-partnered in the last few years and she and her new partner live with the child. Although Ms A moved to Queensland for a time she now, once again, lives in Sydney.
XLFM before his incarceration had links to the community through work and through his sporting endeavours being a member of several athletics clubs: St George, Baden Ridge, Bankstown and Western Suburbs, playing Australian Rules Football. He also participated in several community centres in Riverwood, Marrickville and Belmore.
XLFM provided a number of written references that refer to the links he has to members of the community through work and otherwise and the regard in which he is held albeit that some of these do not appear to have been written in the knowledge of the circumstances of his criminal offending. He also has the support of people like Mr and Mrs G and Mr O who well know the circumstances of his offending.
XLFM considered that his physical and mental health was presently good. XLFM fears returning to Kenya because of violence, death and kidnapping. He said that if returned to Kenya he would face homelessness, poverty and poor health and that he would be ‘forced to take extreme measures risking my life to survive’.
XLFM’S CRIMINAL OFFENDING
On 25 July 2014 XLFM was dealt with in respect of two offences being common assault and destroy or damage property involving domestic violence. I have set out what happened in connection with those offences earlier and it is not necessary to deal with it further other than to observe that there is not a great deal of detail in the evidence I have about what happened when the offences were committed. It is clear that both offences were offences that involved what is commonly known as domestic violence.
On 27 January 2016 XLFM was dealt with for three offences that were committed on 11 November 2015. Two of those offences appear to be relatively minor involving travelling without a ticket, or at least attempting to do so, and refusing to give his name to an authorised officer. The third offence was much more serious involving resisting or hindering a police officer in the execution of his duty. The circumstances of that offence involved some police approaching XLFM about matters relevant to the other offences. There was an altercation when the police attempted to hand cuff XLFM following an argument which involved one of the police officers being injured. XLFM was fined $600 and placed on another bond to be of good behaviour for 12 months. Although the earlier bond was not called up it is relevant that these offences were all committed at a time when XLFM was already on a good behaviour bond.
On 10 December 2018 XLFM was convicted of two further criminal offences and dealt with in respect of his offences of resisting arrest because he had breached the bond that he had been placed on. As will be seen those two offences were the offences that led to the cancellation of the visa because XLFM failed the character test in the Act.
The first offence he was convicted of was attempted sexual intercourse without consent. The facts relevant to that offence which was dealt with by way of a plea of guilty which was entered on the first day of the scheduled trial are conveniently set out in the sentencing Judge’s sentencing remarks.
. . . XLFM, who was 22 at the time, had been in a relationship with Ms A who was the older sister of the victim of this offence. At the time of the offence Ms [A’s sister], the victim, was 17 years old. There had been troubles in the relationship between XLFM and Ms A but she had allowed him to stay at her place. XLFM and Ms A had a young son together so he was visiting principally it seems to see his son. He returned from work on the evening Tuesday 15 November 2016. During the evening there appears to have been an argument with Ms A so that he came out of her bedroom and [Ms A’s sister] was sleeping on a foldout sofa bed.
She went to the bathroom, XLFM pulled out the foldup bed and laid on the left side and when [Ms A’s sister] returned from the bathroom she went to the right side of the bed which was in the lounge room. She fell asleep. Having moved to sleeping on her stomach she was woken by XLFM lying on top of her. She was scared and did not say anything or move. He did not say anything to her.
He pulled up her dress, pulled down her underwear, he pushed his penis into the area of her anus and buttocks repeatedly until he ejaculated on her buttocks and right thigh. She did not move during the incident due to her fear and shock. He did not say anything to her or ask her if she consented. At no time did she consent. After the incident was completed XLFM got up and wet some tissues from bottles of water nearby and wiped the victim’s leg with the wet tissue. He then returned to Ms A’s room.
The victim remained on the sofa. About 4 o'clock she got up and took a shower and put her underwear and singlet into a bin in the kitchen. She then went into the baby’s room and slept by the door so that it could not be opened. At 5 o'clock she went and took a second shower, she messaged a friend and told him what had happened. Between 6 and 7am she messaged another friend and complained that XLFM had tried to rape her. Eventually when she went to school, a complaint was made and the police were called in. She was taken to hospital and examined and from semen taken from a smear on the back of her right thigh DNA was recovered which matched XLFM’s DNA.
The facts that XLFM pleaded guilty to when sentenced were different from the facts that he recounted in his evidence before me. In particular, he claimed in his evidence that the victim, Ms A’s sister, was on a sofa or lounge when he came into the room and that he had set up a sofa bed and laid down on it. He said that the victim then joined him on the sofa bed, and he then became aroused. He did not dispute that she had not consented to what he did. He said in his evidence before me:
I believe I made choices that I'm quite disappointed and they disgusted about them, us sleeping there together, was the wrong choice for us and the father, you know. I got aroused and I - I exposed myself to her and - and I believe at no point she consented to that and I'm aware of that and - and I deeply regret my action.
I am required to have regard to the facts which were the subject of the criminal conviction. I am not entitled to go behind them and, in any event, would not do so based only upon the evidence of XLFM. I will say more about the different version of events given by XLFM later in these reasons. It is also significant that Mrs G said in her email that XLFM ‘was always under the impression that the sex was consensual, he now understands consent more clearly and is regretful of the hurt that he caused’.
Also, the reference to ‘sleeping together’ in XLFM’s evidence and to ‘the sex’ in Mrs G’s evidence must be understood as a reference to the pushing ‘his penis into the area of her anus and buttocks repeatedly until he ejaculated on her buttocks and right thigh’ which the sentencing Judge referred to as ‘quite an advanced attempt’ rather than as being an act of sexual intercourse without consent. That follows from the fact that the offence for which the plea was entered was attempted sexual intercourse without consent and not one of sexual intercourse without consent.
The second offence was robbery armed with an offensive weapon. The facts of that offence were also conveniently set out in the sentencing Judge’s sentencing remarks:
. . . on 20 January 2017 at night, the victim was working alone at a service station in Sutherland. At 10.19pm XLFM walked into the service station wearing black clothing, a dark hat, white gardening gloves and a white handkerchief around his face. He asked the victim if he could top up his Opal card and handed him two $5 notes. He then began to talk about the ATM but as the victim opened the cash drawer to put the money inside, XLFM moved behind the service counter and pulled a meat cleaver from a bag he had, holding it in his right hand.
When [the victim] saw the meat cleaver he backed away from the counter with his arms raised and said for XLFM to take whatever he wanted. XLFM took $400 from the cash drawer of the till. He was recorded by CCTV as he ran from the service station and ran to the rear of the building. Police arrived quite soon after. They found the Opal card which XLFM had proffered to the service station assistant on the ground, and they also found a gardening glove on the top of the barbed wire fence between the service station property and nearby property, which had DNA on the glove matching XLFM’s. Police later went to his home and found clothing which matched what he was wearing on the CCTV footage.
The robbery offence was committed whilst XLFM was on bail in respect of the attempted sexual intercourse without consent offence. Both offences were committed whilst he was on a good behaviour bond for the hindering a police officer offence.
XLFM was sentenced to an aggregate sentence of six years imprisonment for the attempted sexual intercourse without consent and robbery offences with an indicative sentence of five years imprisonment for each. His non parole period was set at four years. His sentence commenced on 20 February 2017 which was the day he went into custody. He remains in prison at present even though his non parole period has expired because it is considered necessary that he undertake a course related to sexual offenders before he applies for parole. The sentencing Judge considered the objective seriousness of the attempted sexual intercourse without consent offence as ‘a moderately serious offence of its kind’ and the robbery offence as being in the low to moderate seriousness for offences of its kind. XLFM was sentenced to seven days imprisonment for the hindering police offence.
In the sentencing remarks so far as the robbery offence was concerned the sentencing Judge recorded that XLFM had been affected by alcohol at the time of the offence, was under financial pressure in respect of a debt he owed and had not been working at the time due to the closure of the hospital he worked in. The sentencing Judge observed that XLFM had been suffering from depression. So far as the attempted sexual intercourse without consent offence was concerned the sentencing Judge had particular regard to the age of the victim, the fact that it occurred in her home where she was entitled to expect she would be safe and the fact that ‘[i]t was quite an advanced attempt; it continued to ejaculation on her body’.
The sentencing Judge also had regard to a report of Ms H, a psychologist who assessed XLFM as being above average risk of sexual re-offending, having moderate treatment for sexual re-offending and as having minimised his sexual offending. That report was not in evidence before me.
XLFM’S LIFE IN PRISON
Whilst in prison XLFM has generally been a good inmate. The Minister referred to some custodial offences he has committed which involved him being in the wrong cell and the like, but these do not appear to be of any great moment. He was found not guilty of a more serious charge of assault whilst in custody. The Community Corrections NSW Immigration Report (Report) prepared by officers in the parole unit on about 29 October 2020 and 2 November 2020 refer to these offences and note that other than those offences reports about XLFM’s conduct whilst in prison describe him as generally polite, compliant, having completed all courses offered to him and as having been gainfully employed.
That Report is relevant for some other reasons. The Report notes that XLFM has not, through no fault of his own, completed the Moderate Intensity Sex Offender Program. It refers to the fact that XLFM has undertaken the STATIC-99 risk assessment whilst in custody that placed him in ‘an above average risk (4) of sexual based re-offence.’ That risk assessment appears to have been undertaken by a psychologist. It also records the large number of courses that XLFM has completed whilst in custody, in particular the Young Adult Offenders Program, the Gurnang Life Challenge, the Foundation Skills Program and some others. His participation in these programs and his results are very favourably described. It refers to XLFM’s acceptance that he could not return to his previous career as a nurse’s assistant upon release if he remained in Australia but would seek employment as a landscaper. His intentions in this regard are consistent with the fact that he was employed at Clarence Correctional Centre in horticulture and grounds maintenance. The Report also records that XLFM ‘accepted full responsibility for his actions; acknowledging his actions were inappropriate and illegal, and would have been traumatic for his victims. He expressed regret for his actions in relation to both offences, stating that he had difficulty coming to terms with his own actions and would like to apologise to the victims.’

In particular, two of the Report’s conclusion are important: one refers to the ‘strong need for him to complete intervention programs targeting sex offending and violent behaviours, however the availability of these programs within his identified release community is yet to be determined’, the other ‘noted’ that a risk mitigation plan had not yet been completed ‘and as such his accommodation and risk to the community has yet to be assessed’. The Report referred to his need to undertake a targeted sexual offending program which needed to be undertaken before his release given his ‘above average risk of sexual re-offending.’
IS THERE ANOTHER REASON FOR REVOCATION?
I earlier referred to the fact that because XLFM cannot satisfy the character test the only basis upon which the decision to cancel his visa can be revoked is if he satisfies the Minister, and the Tribunal on review, ‘that there is another reason why the original decision should be revoked.’ The requirement to be ‘satisfied’ brings into play an evaluative judgment. The requirement that there be ‘another reason’ imports a requirement that there must be an objective rationale or justification or logic behind the decision being made.
I am required by s.499(2A) of the Act to comply with Direction no. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction) in addressing the question as to whether there is ‘another reason’. The Direction provides guidance in exercising the power under s.501CA of the Act. The Direction identifies principles that are to be applied and relevant ‘considerations’ that must be taken into account in deciding whether there is another reason to revoke a decision cancelling a visa.
The principles ‘inform’ a decision-maker about the matters that must be considered in determining whether the mandatory cancellation of a visa should be revoked. It is useful to say some things generally about them whilst of course noting that I have had regard to all of them. The principles make clear that being allowed to remain in Australia is a privilege that is conferred in the expectation that non-citizens are ‘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’ and that those who have engaged in criminal conduct should expect to forfeit the privilege of staying in Australia. The principles go on to record that this position is reflected in the fact that the Australian community expects that the Australian Government should cancel a person’s visa where someone has engaged in conduct that raises serious character concerns.
It is significant that the tolerance of the Australian community so far as criminal or other serious conduct is concerned is a low one, but that tolerance may be greater where someone has lived in the community for most of their life or from a very young age. In considering the matters to which decision makers are directed to take into account the principles refer to the fact that in some circumstances conduct or the harm caused by its repetition might be so serious that even strong countervailing considerations might not be enough to justify revocation of a decision. Those circumstances and their assessment are, of course, left to the decision-maker’s discretion.
The Direction requires that the principles inform the decision-maker’s consideration of the matters referred to in Part 2. Part 2 contains ‘primary considerations’ and ‘other considerations.’ Both types of considerations may weigh in favour of or against revocation of the mandatory cancellation of a visa. Rationally, some of them in particular cases, might be entirely neutral or even irrelevant.
Primary considerations should ‘generally be given greater weight than the other considerations.’ Again, the use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[1] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is reasonably obviously left to the good sense of the decision-maker in weighing the relevant matters.
[1] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The ‘primary considerations’ are the protection of the Australian community from criminal or other serious conduct, family violence, the best interests of minor children in Australia who may be affected by the decision and the expectations of the Australian community. The ‘other considerations’ include international non-refoulement obligations, the extent of impediments if a non-citizen is removed from Australia, the impact on victims and links to the Australian community including the strength, nature and duration of ties to Australia and the impact on Australian business interests. The class of other considerations is not closed so that other matters may be ‘other considerations.’
It is necessary to consider each of the considerations informed by the principles. It is convenient to record, consider and deal with each of the primary and other considerations in turn, dealing with the facts relevant to each of them as they are considered.
Protection of the Australian community
I am required ‘to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’ and have ‘particular regard to the principle that . . .remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.’ I must also consider the nature and seriousness of the conduct and the risk to the Australian community should the person commit further offences or other serious conduct.
In dealing with the nature and seriousness of criminal offending I am specifically required, so far as is relevant, to have regard to the fact that the Australian Government and the Australian community regard crimes of violence and/or sexual crimes regardless of the sentence imposed, crimes of a violent nature against women or children and acts of family violence regardless of whether there is a conviction or a sentence imposed, as very serious. Crimes of that nature do not require any consideration of the sentence imposed because it goes without saying that they are to be regarded by the Australian Government and the Australian community as being very serious.
I am also required to have regard to the fact that the Australian Government and the Australian community regard crimes committed against government representatives or officials due to the position they hold or in the performance of their duties as serious. The sentence imposed by the Courts is relevant to the assessment of the nature and seriousness of crimes against Government officials. I am also required to have regard to the frequency of any offending, whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
The common assault offence involving XLFM’s former partner is to be regarded as very serious because it involved violence against a woman and family violence even though no conviction was recorded. The offence against his former partner’s 17 year old sister is also to be regarded as very serious as it involved violence against a woman, involved family violence because of his relationship with the victim and involved a sexual crime. Her young age is also a factor that makes the offence more serious.
The robbery armed with an offensive weapon offence is an offence of violence and is to be regarded as very serious even though there was no actual physical violence. The carrying of a meat cleaver is in the circumstances of what happened and was said is a violent act. The sentencing Judge observed, and I agree, that the victim who was working in a service station at night was vulnerable. The offence against the police officer is very serious as it involved violence.
Although sentences imposed for the offences involving violence against his former partner and his former partner’s sister are not to be considered, an indicative sentence of five years imprisonment and an aggregate sentence of six years imprisonment, in respect of the offence against his former partner’s sister confirms that that offence was in fact very serious. The sentence for the robbery offences, an aggregated sentence of six years but an indicative sentence of five years, also reflect a very serious offence. Six years imprisonment is a long time in criminal offending. The sentence for hindering a police officer of seven days imprisonment indicates that that offence was not considered to be at the high end of seriousness so far as criminal sentencing was concerned but I am required to treat it as very serious by the Direction as it involved violence.
The frequency of the offending and its increasing seriousness is relevant too. The offending has occurred more frequently over a period of about three years with the last two offences which are clearly the most serious occurring within a matter of months of one another. The cumulative effect of the offending makes the offending very serious because of the fact that individually each of the offences are to be regarded as very serious or serious on their own.
I find the nature and seriousness of the conduct involved in XLFM’s criminal offending is very serious.
Next, I must consider the risk to the Australian community should further offences or other serious conduct be engaged in. I must have regard to both the nature of the harm to individuals or the Australian community should further criminal or other serious conduct be engaged in and the likelihood of further criminal or other serious conduct, taking into account the information and evidence that is available. I am to consider rehabilitation that has been achieved taking into account time spent in the community since the most recent offending.
The harm should the offences be repeated involves several different aspects. First, so far as actual physical violence is concerned the offences of attempted sexual intercourse without consent and the earlier offence involving common assault carries with them, if repeated, the prospect of very serious and ongoing physical, mental and emotional harm to women. That trauma caused to victims of sexual assault is most often serious, immeasurable and lifelong. The harm caused by offences like robbery even if not accompanied by physical violence are significant involving as it does the prospect of real and lasting psychological damage. The harm caused by being violent towards police officers is significant because it involves violence against government officials and impedes their ability to their jib which involves protecting the community generally. The personal harm to individuals in the event of further offending is significant given its likely consequences. The harm associated with further offending should it occur is likely to be significant.
Next, I must consider the likelihood of XLFM engaging in further criminal or other serious offences or conduct. This aspect of this matter is complex. There are some matters that point to the fact that XLFM’s prospects of re-offending are not high.
First, the fact that he is remorseful and contrite for his offending is reflected in the fact that when he was sentenced for all of his offences, he pleaded guilty (albeit in respect of the attempted sexual intercourse without consent offence on the first day of the trial) and that he expressed that remorse when sentenced and in his evidence before me. He expressed his remorse by referring to his shame and regret at having committed the offences. Although I have noted some aspects of his evidence that suggest his acceptance of responsibility is less than complete because he has recounted different facts which minimise his offending to those upon which he was sentenced I note the authors of the report take a different view referring to his high level of personal responsibility for his actions. In my assessment the best that can be said that whilst he clearly accepts responsibility for his wrongdoing that acceptance is, as I have observed, less than complete.
Second, to the extent that he could do so he has engaged in a large number of rehabilitative courses which are likely to assist him in his future. This includes courses dealing with alcohol abuse and his engagement with alcoholics anonymous. It is necessary to approach this aspect with caution so far as those courses have had any rehabilitative effect given that he has been in the structured environment of a correction facility and not in the community after completing those courses.
Third, is the fact that he has generally not offended whilst in prison, but again that must be tempered by the fact of the structured environment within which that good behaviour has occurred.
Fourth, is the likely effect of XLFM’s long period of imprisonment and its possible rehabilitative effects. Again, this is untested in the community. It is idle to speculate about its likely effect too much, but it is generally a positive indicator against the likelihood of reoffending.
Finally, there is the support that people like Mr and Mrs G and Mr O have offered to him upon his release. I note though that support was available before his most recent offending that led to his imprisonment.
There are matters that pull the other way as to the likelihood of re-offending. I have referred to XLFM’s apparent lack of acceptance of entire responsibility for his criminal offending given the different version of the facts that he pleaded guilty to and before me concerning his attempted sexual intercourse without consent offence. He was said to have minimised his offending in the report provided by the psychologist to the sentencing Judge. There is also the fact that the offending itself was repeated offending engaged in after XLFM had been given chances by reasons of two good behaviour bonds to refrain from further offending. Instead, the offences became more serious.
There is also the fact that both when he was sentenced and more recently in the Report XLFM is said to have an ‘above average’ risk of sexual re-offending. Although that does not identify what the risk actually is it suggests that the risk is a real one. That is confirmed by the conclusion in the Report about the ‘strong need for him to complete intervention programs targeting sex offending and violent behaviours’ before his release. XLFM indicated in his evidence that he intended to do those programs prior to his release. I accept that it is through no fault of his own that he has not undertaken them and that he would keep his word and do them, I am required to decide this matter on the basis of the information and evidence before me. The fact is that the programs have not been completed and even had they there would still be an element of the effect of them being unknown and untested.
I consider weighing these factors together that the likelihood of XLFM re-offending is a real one albeit it should not be overstated particularly given the very obvious steps XLFM has taken to rehabilitate himself whilst in prison. I assess his risk of re-offending to be in the mid-range of likelihoods.
I consider the nature and seriousness of XLFM’s criminal offending to be very serious, that the consequences of his re-offending should he do so are likely to be at the high level of seriousness and that there is a real risk that he will offend again. The protection of the Australian community weighs strongly in favour of not revoking the cancellation of the visa.
Family violence
I am required, because of the Australian Government’s serious concerns about permitting those who have engaged in family violence to remain in Australia, to consider the seriousness of conduct involving family violence. This requires me to consider the frequency of conduct involving family violence and whether there is any trend of increasing seriousness, the cumulative effect of any family violence, rehabilitation achieved at the time I decide the matter since the last act of family violence, the extent to which the person has accepted responsibility, the extent to which the person understands the impact of their behaviour and the efforts made to address factors that contributed to their conduct.
The Direction defines ‘family violence’ as meaning ‘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’. The examples of such violence include ‘assault’ and ‘sexual assault or other sexually abusive behaviour’. The conduct involved in the common assault offence definitionally involved ‘assault’. The conduct involved in the attempted sexual intercourse offence obviously involved ‘sexual assault’ and ‘other sexually abusive behaviour.’
The issue is whether that conduct was committed against ‘a member of the person’s family’ or a ‘family member’. In short, who is a family member for the purpose of the Direction in circumstances where the Direction itself does not define those words?
The Minister submitted that I should adopt the definition of ‘members of the person’s family’ or ‘family member’ in the Family Law Act 1975 (Cth) (Family Law Act) so far as it refers to someone a person ‘has been married to or in de facto relationship with’, but otherwise referred to the definitions of ‘relative’ and ‘domestic relationship’ in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) as being relevant to the question of whether or not the offences were committed against members of XLFM’s family.
I do not think that the second part of that submission so far as it refers to the definitions in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is correct because in my opinion the whole of the definition in the Family Law Act should be considered as defining ‘members of the person’s family’. As will be seen I have, in any event, come to the same conclusion as that contended for by the Minister, namely that both Ms A and her sister were members of XLFM’s family for the purpose of this part of the Direction.
The basis for taking the definition from the Family Law Act is very simple: the rest of the definition of family violence appears to be taken from s.4AB the Family Law Act so the constituent parts of that definition should be taken as well. Although the definitions in the Family Law Act are introduced as ‘For the purpose of this Act…’ there is a great deal of force in the fact that where the words are so obviously taken from that Act that the intention was that what they meant in the Act was what they should be taken to mean in the Direction.
On that approach it follows the definition of ‘member of the person’s family’ should then be imported into the Direction so that the people described in s.4(1AB)(d), ‘the first person is or has been married to, or in a de facto relationship with, the second person’ is in the Direction a ‘member of the person’s family’. The definition of ‘member of the person’s family’ in the Family Law Act does not stop there. It also includes in s.4(1AB)(e) ‘another person if … the first person is or has been a relative of the second person (as defined in subsection (1AC)’. The class of people who are defined as ‘relatives’ in s.4(1AC) includes:
(c) a brother, sister, half-brother, half-sister, step-brother or step-sister of the person; or
. . .
(g) if the person is or was married--in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person's spouse; or
. . .
(h) if the person is or was in a de facto relationship with another person--in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.

The combination of s.4(1AC)(c), (g) and (h) means that the sister of a former de facto spouse is a relative and therefore is a member of the person’s family.
That approach to the definition of ‘members of a person’s family’ also conforms to contemporary community standards concerning the meaning of the words in issue: a mother of a child remains a family member of the child’s father despite her separation from the child’s father and so too does an aunty of a child remain the child’s aunty after the parents separation. The position should be no different with ‘in laws’. I also consider that that approach to what is referred to in the Direction has regard to its objectively ascertained intention so far as the reach of the phrase ‘family violence’ is intended to have namely a reflection of the community view of violence between those who are or have been related by reason of blood relationships or marriage or similar de facto arrangements.
Ms A was XLFM’s de facto partner at the time of the offence so that common assault offence against her was an offence involving family violence. Ms A’s sister was XLFM’s former de facto sister in law at the time of the attempted sexual intercourse without consent offence. The conduct involved in the attempted sexual intercourse without consent offence was also an offence of family violence.
Although there are only two offences the second indicates offending of increasing seriousness. I have observed earlier so far as the second offence the different version of facts to which XLFM pleaded guilty when XLFM was sentenced and what he said in his evidence is an indication that his acceptance of responsibility for the attempted sexual intercourse without consent is less than complete. So far as his understanding of the effect his conduct had on both victims is concerned it is clear from his evidence that he understands so much. I have also noted that whilst XLFM has attempted to rehabilitate himself by undertaking a number of courses whilst he has been in prison, but he has, through no fault of his own, been unable to undertake the most important program that he needs to undertake, that is the sexual offending program.
This consideration weighs firmly against revocation of the cancellation of the visa but his attempts at rehabilitating himself by undertaking the courses he has done and his understanding about his wrongdoing and the impact of his behaviour means that I should moderate the weight to be given to this factor even though the family violence is in the circumstances very serious.
Best interests of minor children in Australia affected by the decision
I am required to consider the best interests of children who may be affected by the decision to either revoke or not revoke the visa cancellation decision. I may only consider the interests of children under the age of 18 years when I make my decision.
I am required to consider the following matters ‘[t]he nature and duration of the relationship between the child and the non-citizen’ noting that ‘[l]ess 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’; ‘[t]he 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…’ ; ‘[t]he 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’; ‘[t]he 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’; ‘[w]hether there are other persons who already fulfil a parental role in relation to the child’ ; and ‘[a]ny known views of the child (with those views being given due weight in accordance with the age and maturity of the child’. I have considered that other matters to which reference is made in this part of the Direction, but they have no relevance to this matter.
There are four minor children that are relevant: XLFM’s son, and three of Mr and Mrs G’s children.
I will deal with XLFM’s son. The relationship is paternal. The child is now five and half years of age. He lived with XLFM for about the first year of his life. XLFM saw him almost daily before XLFM was imprisoned either living with him or taking him to the park, on outings and to medical appointments and so on. The child has only visited XLFM once whilst XLFM has been in custody which is probably at least partially explained by Ms A having moved to Queensland for a time, where XLFM has been serving his sentence in country New South Wales and perhaps most recently by the pandemic. XLFM has seen and spoken to the child several times on audio visual link and speaks to him about weekly on the phone. He tells XLFM about things like starting school and learning the piano. His son often asks him about when he will see him. Ms A wants XLFM to have an ongoing in person relationship with her son. XLFM wants to remain in his son’s life to be a role model for him and to support him.
XLFM only played a substantial parental role in the child’s life for a period of about 18 months before his imprisonment. His former partner is the person who has fulfilled a parental role for the child over the last four years. It is not possible to determine with any confidence the role that XLFM would fulfil in future in the child’s life because of what I have said about his risk of re-offending. His prior conduct most likely will have no impact on the child. I note XLFM’s desire to be a role model for his child but there is no evidence that such role model is needed or that others would not be able to fulfil that position if it were needed. The child appears to have expressed a desire to have XLFM in his life. I note that although far from desirable XLFM would be able to maintain relations with his son from Kenya if he returned and lived there by telephone. There was no evidence about whether he would be able to do so by resort to other means such as social media.
I consider that the best interests of XLFM’s child weighs in favour of revoking the cancellation of the visa. The weight that might otherwise be given to this consideration is mainly reduced because of the limited duration of XLFM’s part in the child’s life to date.
So far as Mr and Mrs G’s children are concerned, they are nine, 11 and 14 years of age. The relationship between them and XLFM is not parental. The children have their own parents who fulfil that role. XLFM has not seen them since he has been in custody but he writes to them weekly. I do not know what impact his past behaviour, especially his offending conduct has had on them. It is fair to infer from the evidence about XLFM part in the life to date that he had a close relationship with each of the children and they will be quite upset about him moving back to Kenya.
So far as the future is concerned again it is not possible to determine with any confidence the role that XLFM would fulfil in future in the children’s lives because of what I have said about his risk of re-offending. I will act on the basis that each of the children have a desire that XLFM remain in their lives by living in the community with them. Again, he will be able, if returned to Kenya, to remain in contact with them by telephone and by writing.
I consider that the best interests of the children of Mr and Mrs G weigh moderately in favour of revoking the cancellation of the visa. The weight given to this factor is lessened by the fact that the children have not had an in person relationship with XLFM over the last four years and because the relationship is not parental.
In my view, the best interests of the relevant minor children weighs firmly but not strongly in favour of revocation.
Expectations of the Australian Community
The final primary consideration imputes to the Australian community the expectations that those who have permission to remain in Australia will obey Australian laws and that ‘[w]here 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’. Further, ‘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 non-citizen should not … continue to hold a visa’. Specifically, the Direction records the expectation that the Australian Government should cancel a visa if character concerns are raised through conduct in Australia or elsewhere involving acts of family violence, commission of serious crimes against women or children, or commission of crimes against government representatives.
I am not required to consider what or what not the Australian community expects because that is normatively expressed in the consideration itself. This consideration only involves whether it is appropriate to give more or less weight to a deemed community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[2]
[2] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
As I have already observed, the criminal offending in this case is very serious because it involves violent and sexual offences against women. It also involves a serious offence against government officials. This is not a case where the non-citizen has lived in Australia for most of their life or from a very young age so that less weight would be accorded to this factor. Although XLFM has contributed to the Australian community especially through his career as an assistant nurse and his sporting endeavours that is over a relatively short period of time. The consequences of non-revocation for his child, Mr and Mrs G’s children and Mr and Mrs G are significant. I have already referred to the consequences for the children so do not repeat them here. Although there was no direct evidence about it the consequence of XLFM returning to Kenya for Mr and Mrs G who have been his guardian for the last 11 years will no doubt be significant so far as their emotional attachment to him is concerned.
The very serious nature of the criminal offending means that although XLFM’s contribution to the Australian community and the consequences for the children referred to and Mr and Mrs G moderate the weight to be given to this consideration, it remains a strong factor running against revocation of the cancellation of the visa.
Strength, nature and duration of ties
The Direction requires that attention be paid to the strength, nature and duration of ties in Australia. This requires consideration of how long XLFM has lived in Australia but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.
XLFM’s offending started after he had been in Australia for a little over four years. His contribution to the Australian community has, as I have noted already been by way of paid employment and, importantly, by participation in the community through his sporting endeavours at a variety of clubs. His contribution to life at his high school and his contribution to the lives of those he participated in sport and worked with him over his time before being imprisoned is important. It is only diminished by the fact that it was only for about six years.
XLFM has ties with the Australian community through his family and social links especially to his child, his guardians Mr and Mrs G, their minor children and adult child, his former partner, to Mr O and to the other people that he has worked with and played sport with over the years. These are important ties to the Australian community, but again they are moderated by the relatively short time that XLFM has been in Australia and the even shorter time in which he has participated in the Australian community.
This consideration weighs firmly in favour of revocation of the visa cancellation decision.
Extent of impediments if removed
This part of the Direction requires me to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard for themselves in their home country. The basic living standard referred to in the Direction is by reference to that which is available to other citizens of that country. I am required to consider age, health, language and cultural barriers, and social, medical and economic support that may be available.
XLFM is in good health. There was certainly no evidence that he was not although he said that he feared for his mental health if returned to Kenya. There was no medical evidence that supported that. The evidence is very self-serving. I would not act on such a claim without some evidence that independently supported that conclusion. XLFM is relatively young being 26 years of age. He has some skills associated with his training as an assistant nurse and as landscaper and gardener that would hold him in some stead in Kenya.
XLFM lived for the first 15 years of his life in Kenya, so he is undoubtedly familiar with the language, customs, and socio-economic aspects of life in Kenya. I do not consider that culturally and linguistically he would face any impediments to adjusting to life. He will have available to him the same kinds of benefits provided to others living in Kenya. Although he claims to have no family in Kenya, he gave evidence about people he knew from Australia who had friends and family in Kenya. They no doubt can be called upon to assist him if necessary.
In view of his lack of any existing social network in Kenya, this factor weighs moderately in favour of revocation the decision cancelling the visa.
International non-refoulement obligations
I am required by the Direction to consider Australia’s non-refoulement obligations which is an obligation not to forcibly return or deport a person to a place where they will be at risk of a specific type of a harm. I am required to consider XLFM’s fears of risk of harm as another consideration as well.
XLFM referred to two particular types of harm that he feared would beset him if returned to Kenya which were expressed as, the Minister suggested, at a high level of generality. The first was the fear of being the victim of ‘local gangs and facing death’ and the second was ‘due to increasing violence, death and kidnapping in Kenya’ which he thought he would be forced into due to poverty. XLFM did not identify any particular reason that would lead to him being at risk of harm. He did not give any details about the origins or source of his fears of harm or how they would ultimately play out on his return to Kenya. XLFM particularly referred to the activities of the terrorist group al-Shabaab as being something which I should consider.
There was no evidence of any specific harm that would be directed to XLFM either on account of him being returned to Kenya as someone who had been convicted of serious criminal offences in Australia or any other basis. There is no doubt that there is an adverse security situation in Kenya. The evidence concerning al-Shabaab was that its activities were so far as civilians were concerned were in areas bordering Somalia. There was no evidence about where XLFM would live in Kenya and whether that would be near the Somalia border. There is some suggestion that security forces have targeted ethnic Somalis, but there was no suggestion that XLFM was within such an ethnic group.
I do not consider Australia’s international non-refoulement obligations are engaged especially given the lack of evidence about how any harm would be done to XLFM, how he would be the victim of gangs and face death or why and how he might come to be kidnapped. I am unable to find that XLFM would be at any particular risk of harm should he return to Kenya. He, of course, may apply for a protection visa in the future.
I do not consider that there is any evidence or information that points to XLFM being at risk of harm should he be returned to Kenya. I do not consider that Australia’s international refoulement obligations are engaged in respect of XLFM.
Other considerations
I have considered the remaining other considerations in the Direction: the impact on businesses and the impact on victims and I do not consider that any of them are relevant to my assessment of whether there is another reason to revoke the visa cancellation decision. Neither XLFM nor the Minister suggested any other considerations were relevant.
CONCLUSION
XLFM’s serious criminal offending, that is, his attempted sexual intercourse without consent of the 17 year old sister of his former partner and robbery armed with an offensive weapon, together with his previous offence of hindering a police officer in the execution of his duty and for common assault against his partner give rise to a significant concern about the protection of the Australian community should he remain in Australia. This is especially so in circumstances that those kinds of offending if repeated will involve serious harm to members of the Australian community. The likelihood of those offences being repeated is a real one which means that this consideration is a significant obstacle to forming a satisfaction that there is another reason to revoke the cancellation of XLFM’s visa. The fact that the offending involves offences of family violence and the expectations of the Australian community regarding cancellation of a person’s visa where that person has committed serious criminal offences also count against revocation of the cancellation of the visa.
The best interests of XLFM’s child and the three children of his guardians Mr and Mrs G, the ties XLFM has to Australia formed during the short period in which he has been in Australia and the even shorter time he has contributed to the Australian community, and his impediments if returned to Kenya are not sufficient to outweigh the factors that weigh against revoking the decision to cancel his visa because the other matters so strongly outweigh them.
DECISION
I affirm the delegate’s decision refusing to revoke the decision cancelling XLFM’s Class AH Subclass 101 Child visa.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

................................[sgd]........................................
Associate
Dated: 28 May 2021

Dates of hearing: 12 and 13 May 2021

Advocate for the Applicant: Mr O

Solicitors for the Respondent: Ms L Hargrave, Clayton Utz

[2021] AATA 1510

28 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Dates of hearing:	12 and 13 May 2021
Advocate for the Applicant:	Mr O
Solicitors for the Respondent:	Ms L Hargrave, Clayton Utz