YKSB and Minister for Home Affairs (Migration)
[2019] AATA 759
•24 April 2019
YKSB and Minister for Home Affairs (Migration) [2019] AATA 759 (24 April 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0647
Re:YKSB
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:24 April 2019
Place:Melbourne
The decision under review is affirmed.
.........................[SGD]...............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of visa on character grounds – Class BF Transitional (Permanent) visa – where Applicant does not pass the character test – sentenced to 12 months’ imprisonment or more – whether there is any other reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – Decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Sex Offenders Registration Act 2004 (Vic)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CAJudicial College of Victoria Sentencing Manual
REASONS FOR DECISION
Senior Member Theodore Tavoularis
24 APRIL 2019
BACKGROUND
YKSB (“the Applicant”) arrived in Australia on 22 June 1965, aged 13 years. On 19 March 2018, the Applicant’s Class BF Transitional (Permanent) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.
The Applicant subsequently applied for this mandatory cancellation decision to be revoked. On 31 January 2019. a delegate of the Minister for Home Affairs (“the Respondent” or “the Minister”) refused to revoke the cancellation of the Applicant’s visa.
On 7 February 2019, the Applicant applied to this Tribunal for a review of the delegate’s decision.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[2]
[1] [2018] FCAFC 151.
[2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[3] I will address each of these grounds in turn.
[3] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly 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”.
There does not seem any contest on behalf of the Applicant that he does not pass the character test. There is a concession on behalf of the Applicant that the sole issue for determination by the Tribunal is to ascertain whether there is “another reason” to revoke the mandatory cancellation of the Applicant’s visa.[4]
[4] Exhibit A16, Applicant’s Revised Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph 6.
The Applicant’s position is appropriately taken: on 20 December 2017, he was convicted in the County Court of Victoria at Melbourne of six counts of ‘indecent assault’ and one count of ‘gross indecency in the presence of a child under 16’. The sentencing regime imposed upon him by His Honour, Judge Bourke was as follows:
“You are sentenced as follows:
On Charge 1, you are sentenced to nine months’ imprisonment;
On Charge 2, you are sentenced to six months’ imprisonment;
On Charge 3, you are sentenced to 18 months’ imprisonment;
On Charge 4, you are sentenced to 16 months’ imprisonment;
On Charges 5 and 6, 12 months’ imprisonment;
On Charge 7, six months’ imprisonment.
I direct that four months of the sentences for Charges 1, 5 and 6 be served cumulatively upon the sentence for Charge 3 and each other. That is a total effective sentence of two and a half years. I partially suspend two years of that sentence for two and half years.”[5]
[5] Exhibit R2, s 501 G-Documents, G4, page 7, lines 39-49.
Although these sentencing remarks contained stipulations about a partial suspension of custodial time, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[6]
[6] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies[7]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. [8]
[7] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[8] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(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 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[10]
[9] [2018] FCA 594.
[10] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)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 forfeit the privilege of, staying in Australia;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be readily gleaned from his National Police Certificate.[11] It comprises:
[11] Exhibit R2, Section 501 G-Documents, G3, pages 39-40.
Court
Court Date
Offence
Court Result
South Melbourne Magistrates Court
2 December 1970
Tamper/interfere with motor vehicle (2 charges)
Fined: $25 on each charge
Illegal use of vehicle
Adjourned to 1.12.71 on $20 good behaviour bond
Moonee Ponds Magistrates Court
2 April 1979
Assault police/person assisting police
Fined: $40
Melbourne County Court
20 December 2017
Indecent assault
18 months imprisonment
Indecent assault (2 charges)
12 months imprisonment on each count. 8 months of each count concurrent and concurrent.
Indecent assault
9 months imprisonment. 5 months of sentence concurrent.
Gross indecency presence child under 16 indecent assault
6 months imprisonment on each count concurrent and concurrent.
Indecent assault
6 months imprisonment concurrent. 2 years of sentence suspended for 30 months under section 27 of the sentencing act.
Summary of the offending
As contained in the abovementioned sentencing remarks, the Applicant pleaded guilty to and was sentenced for seven specific instances of offending. Those seven offences can be more particularly described and particularised as follows:
·Charge 1 occurred at [location redacted], Victoria between 1 September 1982 and 14 October 1983. The charge comprised a representative charge[12] and involved conduct whereby the Applicant indecently assaulted a person under the age of 16 years. The charge is particularised on the basis that the accused (the Applicant) touched the Complainant’s vagina. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
[12] A representative charge is a normally particularised charge which, by agreement between the parties, refers to multiple incidents of similar conduct. See Judicial College of Victoria Sentencing Manual, paragraph 9.3.4.1 – Nature of representative charges.
“16.The accused then pushed her [the Complainant] into the corner of the kitchen bench and held her there with his body weight. He started to move his groin against her, rubbing himself against her. He put his hand down on the outside of her vagina and began rubbing her.
…
23.[The Complainant] was in the kitchen at the accused’s flat and [The Applicant’s ex-wife] had left the room. The accused pushed her over near the corner of the bench so that she could not get away. He began to rub her vagina with his hand over her clothing.[13]
[13] Exhibit R3, s 501 supplementary G-Documents, SG1, pages 5-6.
·Charge 2 occurred at [location redacted], Victoria between 1 September 1982 and 14 October 1983. The charge comprised a standalone charge and involved conduct whereby the Applicant indecently assaulted a person under the age of 16 years. The charge is particularised on the basis that the Applicant had the Complainant rub his penis. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
“20.The accused then moved her hand to the front of his body and put it on the top of the outside of his jeans. He moved her hand up and down on his penis over his clothing.”[14]
[14] Ibid, page 5.
oIt is pertinent to make reference to the remarks of the sentencing judge, His Honour Judge Bourke, in relation to the preceding charges 1 and 2. The sentencing judge referred to those charges together because they related to the same victim. The sentencing judge observed:
“13. Typically, you forced yourself upon and pressed against her, fondled her and rubbed her vagina. I stop to say this. It would not be uncommon to close the court in these situations, but I note that all of the people present are people who are related to or in support of the various people involved. I will anonymise names appropriately when I finally revise these. And of course, it is against the law for any reporting of these matters that would identify victims, or tend to do so.
14.I return to my reasons. Typically, you forced yourself upon and pressed against her, fondled her and rubbed her vagina without penetration. On one occasion, you made her move her hand up and down your penis outside your clothing. Finally, when 14, she stood up to you and you stopped.”[15]
[15] Exhibit R2, s 501 G-Documents, G4, pages 43-44.
·Charge 3 occurred at [location redacted], Victoria between 21 March 1983 and 31 December 1990. The charge comprised a representative charge and involved conduct whereby the Applicant indecently assaulted a person under the age of 16 years. The charge is particularised on the basis that the Applicant touched and introduced his finger into the Complainant’s vagina. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
“30.[The Complainant] was at the toilet and the accused checked to see if she had wet her pants. He put his hand between her legs and said, “Did you wet yourself” and grabbed her on the vagina.
…
32.The accused had a blanket over his [sic] over the top of them both. He had one leg on the couch and the other leg on the floor. The accused touched [the Complainant’s] vagina on the outside of her underwear.
…
36.The accused ran his hand up and down her leg. He then touched the complainant on her vagina, inside her underwear. [The Complainant] says she remembers wetting herself, but the accused took off her underpants and continued to touch her on the vagina.
…
38.The accused took [the Complainant] to a nearby creek. The accused then put his hand up the complainant’s dress and rubbed her vagina while she touched her…chest.
39.After this incident, the accused gave money to [the Complainant] and told her not to tell anybody.
…
43.In about 1986… [the Complainant] was playing a game of rugby in the backyard with the accused and other children. The accused tackled the complainant to the ground a number of times during the rugby game. On each occasion, the accused touched the complainant on the vagina.
44.[The Complainant] went inside the house to get away from the accused. After using the toilet she opened the door and [sic] accused was waiting for her. The accused told [the Complainant] that she was “special” and asked her whether she had told anyone about their “secret”. The accused then grabbed the complainant’s vagina to see whether she had had an accident. The accused put his hand inside her underpants and rubbed her vagina.
45.The accused then he [sic] undid his pants and pulled out his penis, however his son…appeared and the accused pretended that he was on his way into the toilet.”[16]
[16] Exhibit R3, s 501 supplementary G-Documents, SG1, pages 7-9.
·Charge 4 occurred at an unknown location in Victoria between 1 January 1990 and 31 December 1990. The charge comprised a standalone charge and involved conduct whereby the Applicant committed an act of gross indecency in the presence of the Complainant, a person under the age of 16 years. The charge is particularised on the basis that the Applicant had the Complainant touch his penis. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
“46.The last incident between the accused and [the Complainant] occurred in 1990 or 1991, when she was close to 14 years of age.
47.The complainant was left in the care of her brother…while her mother…and partner went away for a weekend. As a result of an issue that had arisen between [the Complainant] and her siblings, she was taken to her…in Reservoir. She was later collected from Reservoir by the accused.
48.[The Complainant] and the accused left in the accused’s car, which was an EH Holden. In the vehicle, the accused unzipped his pants and pulled his penis out. The accused told the complainant that he was going to teach her how to drive a manual car. The accused told [the Complainant] how to hold the end of the gear stick and then got her to hold his penis and move it like she was changing gears.
49.The accused then took [the Complainant] to an isolated paddock near Werribee. When they pulled up [the Complainant] said to the accused, “I’m going to run.” The accused replied “Where are you going to run?”
50. The accused undressed [the Complainant] inside the vehicle, taking her singlet and shorts off. The accused took his pants down to his ankles and got [the Complainant] to touch him. [The Complainant] was seated naked in the front passenger seat of the vehicle.
51. The accused moved his seat and [the Complainant’s] seat back. The accused began to kiss her on the chest. The accused put his finger into his mouth and then inside [the Complainant’s] vagina.
52.The accused told the complainant to hold his penis and “put him off.” As he was unable to ejaculate, the accused then masturbated himself until he ejaculated on a tissue or napkin that was inside his vehicle. The accused told [the Complainant] that his ejaculate was like milk and rubbed it all over her breasts. The accused then put his fingers in [the Complainant’s] mouth forcing her to “taste the ejaculate.” He [sic] accused squeezed her nipples and said “look it’s like breast milk” and made comments about [the Complainant] having children of her own, one day.”[17]
[17] Ibid, pages 9-10.
·Charge 5 occurred at an unknown location in Victoria between 1 January 1990 and 31 December 1990. The charge comprised a standalone charge and involved conduct whereby the Applicant committed an act of indecent assault against a person under the age of 16 years. The charge is particularised on the basis that the Applicant placed his penis on the Complainant’s lips. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
“54.The accused gave [the Complainant] something to eat and drink and drove her to [sic] nearby isolated paddock. The accused tried to get [the Complainant] to kiss his penis. The accused tried to encourage the complainant and said “come on you can do it.” Eventually the complainant’s lips touched the accused’s penis.”[18]
[18] Ibid, page 10.
·Charge 6 occurred at [location redacted], Victoria between 30 September 1989 and 1 October 1989. The charge comprised a standalone charge and involved conduct whereby the Applicant committed an act of indecent assault against a person under the age of 16 years. The charge is particularised on the basis that the Applicant introduced his finger into the Complainant’s vagina. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
“59.[The Complainant] was a friend of the accused’s daughter...
60.On the 30th of September 1989, [the Complainant] was aged about 14 years. she was invited by [the applicant’s daughter] to stay the night at the accused’s home at Werribee. The accused [and others] had gone out for the evening.
61.[The Complainant] slept in [the Applicant’s daughter’s] bedroom, on the bottom bunk bed. She was wearing pyjamas.
62.At approximately 2:00am on 1 October 1989, [the Complainant] awoke and found the accused lying next to her. He had his hand on her breast.
63.[The Complainant] said, “Stop”. The accused said, “Shhhh. If you wake anyone I will kill you all.” [The Complainant] then realised that the man in the bed was the accused.
64.The accused continued to rub [the Complainant’s] breast. She again asked him to stop and he again told her to be quiet or he would kill everyone.
65.The accused then moved his hand down to her vagina, again telling her to be quiet and saying that it would not hurt. The accused inserted one finger into [the Complainant’s] vagina, saying, “I just want to feel.” [The Complainant] said, “Please stop, it hurts.”[19]
·Charge 7 occurred at [location redacted], Victoria between 30 September 1989 and 1 October 1989. The charge comprised a standalone charge and involved conduct whereby the Applicant committed an act of indecent assault against a person under the age of 16 years. The charge is particularised on the basis that the Applicant placed the Complainant’s hand on his penis. In its “Summary of Prosecution Opening Upon Plea”, the prosecution noted:
“66. The accused then grabbed [the Complainant’s] hand and held it on his penis, over the shorts he was wearing. The accused continued to hold [the Complainant’s] hand moving it up and down on his penis… At the same time the accused was rubbing [the Complainant’s] breast again with his other hand.
67.[The Complainant] again asked the accused to stop. The accused got out of the bed and told her to meet him in the kitchen. The accused took [the Complainant’s] blanket and left the room. [The Complainant] climbed up onto the top bunk where [the Applicant’s daughter] was asleep and huddled in the corner as far away as possible from the side of the bunk.
68.The accused came back into the room. When he saw that [the Complainant] was not in her bed, he tried to pull her off the top bunk, telling her that he would kill them if she woke anyone up and didn’t go with him to the kitchen. At this time, [the Applicant’s daughter] began to wake up and the accused left the bedroom.”[20]
[19] Ibid, page 11.
[20] Ibid, pages 11-12.
The Nature and Seriousness of the Applicant’s Conduct to Date
There is a ready acknowledgement on behalf of the Applicant as to the gravity of his offending:
“28.The Applicant readily and sincerely acknowledges the gravity of his offending. In his statement dated 25 June 2018, he states, for example:
‘I do not agree with every single fact that the prosecution allege, however, I acknowledge that I engaged in conduct which was illegal, inappropriate, wrong and deeply damaging to the young girls involved. I am guilty of indecent assault and gross indecency. I was much older than them, and I should have known better. I lost my judgment for a period, and make no excuses for that. I can only say that it was a deeply unhappy time in my life, during which I was drinking heavily on a very regular basis, and I do not even remember some of that time – would get into arguments in bars, and end up in fights with people, and generally exercised very poor judgment.
Upon reflection, I do not think I properly understood how damaging my behaviour was at the time, to the victims, because of my heavy drinking. I was a different person then and was deeply unhappy with my own life and my marriage. I am ashamed of what I did and how many people I hurt – the victims, my children, all of my family. It is very upsetting to me how much I have hurt not only the victims but the people in my life who care about me. I am deeply ashamed of myself.’ ”[21]
[21] Exhibit A16, Applicant’s Revised SFIC, pages 6 – 7, paragraph [28].
The contention put on behalf of the Respondent is that “…. the protection of the Australian community weighs overwhelmingly against revocation for the following reasons”.[22] The Respondent contends that the “overwhelming” seriousness of the Applicant’s conduct becomes readily apparent upon an application of the relevant factors in the Direction guiding decision-makers on this specific issue.
[22] Exhibit R1, Respondent’s SFIC, page 4, paragraph [14].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
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 … 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 Court for a crime or crimes;
e) ….
f) The cumulative effect of repeated offending;
g) ….
h) ….
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature must be viewed very seriously. I have earlier recounted the factual circumstances of the Applicant’s offending. There can surely be no argument that having regard to his offending history through its multi-year trajectory, the Applicant’s offending undeniably involves a sustained theme of offending that is patently sexual in nature. Worse still, the offending is perpetrated upon vulnerable minors over whom the Applicant, simply by virtue of his status in the victims’ eyes as an “adult”, exercised a significant level of control and influence. His offending cannot be viewed in any other way.
It is unquestionably the view formed by the sentencing judicial officer, His Honour Judge Bourke, who noted these things when sentencing the Applicant:
“30. My earlier description in itself states the seriousness of your offending. Vulnerable children were cynically exploited with a quite brutal lack of regard and respect for them. There has been considerable victim impact. In such circumstances, the sentencing purposes and considerations of general deterrence, your moral culpability, the need to condemn the offending, and to impose proportionate punishment for it are relevant. You are to be sentenced as a serious sexual offender on Charges 3 – 7. Accordingly, community protection becomes the principal sentencing purpose….”[23]
[My underlining].
[23] Exhibit R2, Section 501 G Documents, G4, page 47.
Upon an application of this subparagraph (a) of paragraph 13.1.1(1) of the Direction, I find that the nature and seriousness of the Applicant’s offending, having regard to the nature of the sexual crimes he committed against minors, can only be regarded as extremely serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. This sub-paragraph can only militate against the Applicant. His offending involved multiple sexual assaults against children. His Honour Judge Bourke rejected any ameliorating factors for the offending. While noting the factors propounded on behalf of the Applicant at his time of sentencing, His Honour Judge Bourke was clear that none of those factors carried any significance as explanatory or ameliorating factors behind the extremely serious offending:
“23.Your first marriage ran over 30 years. It appears as becoming highly dysfunctional. You have pointed to your wife’s drug abuse, gambling and infidelity. It seems clear that you became a heavy drinker. That was your situation during the decade of this offending. You have reduced your drinking in recent years, assisted by marriage to your second wife.
24.You have psychological symptoms consistent with your life’s difficulties and the present situation. However they do not loom as highly significant, particularly in explanation of your offending. It is not said that your mental health will make your imprisonment more difficult for you beyond that of the average prisoner.”[24]
[My underlining].
[24] Ibid, G4, page 46.
The terms of this sub-paragraph (b) are clear. This type of offending involving multiple sexual assaults against children is to be viewed very seriously regardless of the sentence imposed. I am thus of the view that upon an application of this sub-paragraph (b) to the circumstances of the Applicant’s offending, the nature and seriousness of his conduct is very serious conduct indeed.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction requires a decision-maker to have regard to the principle that crimes committed against vulnerable members of the community or government officials in the performance of their duties are to be viewed as serious. His Honour Judge Bourke was clear in his observation that the Applicant’s offending was perpetrated on “Vulnerable children [who] were cynically exploited with a brutal lack of regard and respect for them.”
The vulnerability of the child victims can be gleaned from two things: (1) the lengthy period over which the offending occurred and (2) the quite significant disparity – indeed, generational difference - between the ages of the victims and the age of the Applicant. His Honour Judge Bourke noted these things about the vulnerability of the victims:
“10.As stated, the offending occurred in 1982 – 1990, now approximately 25 – 35 years ago. Your victims were [victim 1], [victim 2] and [victim 3]. [Victim 1] and [victim 2] are nieces of your then wife. During the time of offending against them, [victim 1] was aged six – 14 years. Her older sister, [victim 2], was aged 12 – 14 years. [Victim 3] was a school friend of your own daughter and aged 14 when you sexually assaulted her on a night during which she was sleeping over at your [location redacted] home.
11.You were aged 31 – 39 in the time of offending. You were married and had three children. Your family lived in [location redacted] and [location redacted]. Your wife’s mother, grandmother to two of your victims, lived in nearby [location redacted].
12.You sexually abused these children in those places, or areas, and also as to [Victim 1], at your parents’ home in [location redacted]. Both [Victim 1] and [Victim 2] stated repeated abuse of them. [Victim 2] specifically recollects three occasions. …
13.Typically, you forced yourself upon and pressed against her, fondled her and rubbed her vagina. ….”[25]
[25] Ibid, G4, pages 43 – 44.
While not necessarily ventilated to any great extent at the hearing, the Applicant’s criminal history discloses an offence committed on 2 April 1979 described as “Assault police/ person assaulting police”. The Applicant was dealt with for this offending at the Moonee Ponds Magistrates Court and fined the sum of $40. While this offending may not as readily attract an application of this sub-paragraph (c) of paragraph 13.1.1(1) of the Direction, it is, nevertheless, offending against “government representatives or officials due to the position they hold, or in the performance of their duties….”. As such, the offending must be regarded as, at least, “serious”.
The Applicant’s extremely serious offending involving multiple sexual assaults against children most certainly attracts an application of this sub-paragraph (c). I find that the crimes committed by this Applicant against vulnerable members of our community (children) do constitute extremely serious offending. Viewed in conjunction with his abovementioned offence against the Police, there can be no other finding in relation to this sub-paragraph (c) other than that it militates very strongly in favour of a finding that the totality of the Applicant’s offending – against both children and government officials (police) – can only be viewed as extremely serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The sentencing remarks of His Honour Judge Bourke stipulate the overall sentencing regime imposed on the Applicant:
“39. You are sentenced as follows:
40. On Charge 1, you are sentenced to nine months’ imprisonment;
41. On Charge 2, you are sentenced to six months’ imprisonment;
42. On Charge 3, you are sentenced to 18 months’ imprisonment;
43. On Charge 4, you are sentenced to 16 months’ imprisonment;
44. On Charges 5 and 6, 12 months’ imprisonment;
45. On Charge 7, six months’ imprisonment;
46.I direct that four months of the sentences for Charges 1, 5 and 6 be served cumulatively upon the sentence for Charge 3 and each other. That is a total effective sentence of two and [sic] half years. I partially suspend two years of that sentence for two and a half years.”[26]
[26] Ibid, G4, page 48.
During the sentencing hearing, it was propounded on behalf of the Applicant that any custodial term His Honour Judge Bourke may have been minded to impose should be wholly suspended due to various factors purportedly militating in favour of the Applicant. This submission was rejected by His Honour who said:
“37.It has been put that I should wholly suspend a sentence of imprisonment, bearing in mind these matters. I have decided that a sentence of some actual custody is necessary to address the seriousness and high culpability of these offences; and also to take into account properly the victim impact of them.”[27]
[My underlining]
[27] Ibid.
It should also be noted that the Applicant’s plea of guilty caused His Honour Judge Bourke to note that “… I indicate I would have imposed a sentence, if you had not pleaded guilty, of four years with a minimum of two years…”[28] While the Respondent sought to propound the fact that the Applicant’s plea was not a timely one – there being something in the order of two years from the date of his being charged, the committal hearing and, ultimately, the sentencing hearing in December 2017 - I do not think there is much store in that submission. Given the position in which he found himself upon being charged and at committal, the Applicant was rightly entitled to obtain the benefit of legal advice, put the Prosecution to proof and to test the evidence at committal.
[28] Ibid, G4, page 49.
To my mind, the important point for present purposes is that the Applicant did eventually proceed to sentencing upon his own plea and that, regardless of its timing, it is the making of that plea that His Honour Judge Bourke took into account for sentencing purposes. As noted by His Honour Judge Bourke: “Your plea was late; but has still facilitated the interests of justice.”[29]
[29] Ibid, G4, page 42.
Be that as it may, an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction can only strongly militate in favour of a finding that this Applicant’s offending is indeed of a very serious nature. In a way, this sub-paragraph (d) is deferential to any finding about the abovementioned sub-paragraph (b). This is because sub-paragraph (b) stipulates that crimes of a violent nature against children are to be viewed very seriously regardless of the sentence imposed.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of the offending. The Applicant’s multiple sexual assaults against children is offending that was perpetrated for something in the order of eight years. It involves a shocking lack of judgment and absence of self-control. It undeniably demonstrates an inability to distinguish right from wrong.
It is offending that, in the most appalling way, is not respectful of the personal rights of other quite vulnerable members of our community. Ultimately, it is offending that is not respectful of the lawful authority governing the rights of those vulnerable victims. The overwhelming majority of the remainder of the Australian community respect those laws and do not attack the vulnerable in our midst. Despite his offending, the Applicant now seeks to be re-admitted to the Australian community.
There are, to my mind, two obvious cumulative effects of the Applicant’s offending that point to its extreme level of seriousness. First, there is the element of the very serious impact of this conduct on impressionable and vulnerable children who will, undoubtedly, bear the scars of the Applicant’s offending for the rest of their lives. As observed by His Honour Judge Bourke:
“18.I have read the tendered victim impact statements a number of times. They reflect the impact that one sees very commonly in cases where childhood has been abused and exploited. There is ongoing fear, difficulty in intimacy and in relationships, recurring images and memory, and there is anger. Trust has been betrayed, vulnerable children have been humiliated. There is post-traumatic stress disorder and other psychological symptoms.
19.There is also the powerful statement of not being supported and helped, of betrayal, not only by the immediate perpetrator. There is the impact of the legal process, so many years on…
20.There is also in this case, in these victim impact statements, insight and a courageous resilience to overcome.”[30]
[My underlining]
[30] Ibid, G4, page 45.
The second cumulative effect of the Applicant’s offending involves his mandatory life-long registration as a sexual offender. The following exchange appears in the sentencing remarks:
“48.HIS HONOUR: It is some time since I heard the plea, it was an agreed position that because of the time of the offences, a suspended sentence was available, and has not been removed by subsequent – that was clear, I think?
49.MR LAVERY:[31] That is so, Your Honour.
[31] Counsel for the Applicant at the sentencing hearing.
50.HIS HONOUR: Alright. Now, what else needs to happen?
51.MS BLEAZBY:[32] Your Honour, there is the Sex Offenders Registration order.
52.HIS HONOUR: For how long?
53.MS BLEAZBY: For life reporting.
54.HIS HONOUR: Yes, alright. I am going to have served on you now Mr [Applicant], a document that indicates your obligations under the Sex Offenders Registration Act, and there will be another document presented to you, which you will be asked to sign, saying that you have received the first document. You may sign the second document as you choose, or not. It is a matter for you…
55.MS BLEAZBY: Your Honour, just in relation to the Sex Offenders Registration Order, I note that all the offences are Class 2 offences under the Act. And there is also an application - - -
56.HIS HONOUR: That means that the reporting period is life, is it not?
57.MS BLEAZBY: Yes, I think it has to be noted on the record that they are Class 2 offences.
58.HIS HONOUR: Yes, it will be, yes. [33]
[My underlining]
[32] Counsel for the Director of Public Prosecutions at the sentencing hearing.
[33] Exhibit R2, Section 501G-Documents, G4, page 49.
The cumulative effects of the Applicant’s offending can be summarized as follows: (1) his offending has caused him to be removed from the mainstream Australian community either as a result of his sentence for his criminal offending and, subsequently, as a result of the mandatory cancellation of his visa status; (2) his offending has very seriously impacted upon his victims such that their trust has been betrayed and the resulting humiliation they have experienced will most likely manifest in ongoing disorders into their adulthood be it in the form of post traumatic stress disorder or other psychological symptoms and (3) the re-admission into the Australian community that he seeks will forever be conditioned by a mandatory requirement obligating him to – for the rest of his life – report to the appropriate authorities pursuant to the Sex Offenders Registration Act 2004 (Vic).
Thus the application of this sub-paragraph (f) can only lead to a finding that the cumulative effect of the Applicant’s offending is such as to render his offending as extremely serious in nature.
Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of an extremely serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires me to consider 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 reoffending.
The Respondent’s contention is that regardless of an assessment of any risk of reoffending, an application of paragraph 6.3(4) of the Direction militates against any favourable application of paragraph 13.1.2 of the Direction.[34] The two independent and expert opinions informing this consideration comprise (1) the report of the consulting clinical and forensic psychologist, Mr Jeffrey Cummins dated 19 July 2018 and (2) the report of the senior clinical and forensic psychologist, Dr Lauren Ducat dated 24 November 2017. The former report was prepared for the review by the Minister’s delegate made on 31 January 2019 (comprising the decision under review) while the latter was prepared in the month immediately preceding the Applicant’s sentencing hearing before His Honour Judge Bourke in December 2017.
[34] Exhibit R1, Respondent’s SFIC, page 5, paragraphs [18]-[19].
The basis of the Respondent’s contention is that based on paragraph 6.3(4) of the Direction, any risk of similar conduct by the Applicant in the future is unacceptable. To quote this paragraph of the Direction in full:
“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.”
The crux of the submission, as I understood it, is that even though Mr Cummins assesses the Applicant’s risk of reoffending as low, and Dr Ducat assesses it as either low or low – medium, those countervailing considerations may be insufficient to justify revocation of the mandatory cancellation decision due to the very serious nature of the Applicant’s criminal offending. The veracity of this submission is perhaps best understood by an examination of the expert evidence provided by Mr Cummins (who appeared in person at the hearing to give evidence) and Dr Ducat (who was not called to give evidence).
Evidence in chief of Mr Cummins
In reaching an assessment of the Applicant’s likelihood of reoffending, Mr Cummins applied a combination of an actuarial tool (the Static-99R) and a structured professional judgment tool (the Risk for Sexual Violent Protocol: “RSVP”). With reference to the former test, Mr Cummins opined as follows:
“45. On the Static-99R [the Applicant’s] current risk for committing a further sexual offence was assessed as Low (where the risk category options are Low, Low – Moderate, Moderate – High and High). His risk was assessed as Low on the Static-99R primarily because of his age (the frequency of sexual offending typically reduces with age) and the fact he has lived with an intimate partner for at least two years.”[35]
[35] Exhibit R2, Section 501 G-Documents, G21, Report of Mr Jeffrey Cummins dated 19 July 2018, page 9, paragraph [45] (page 135 of the G Documents).
With reference to the RSVP assessment tool, Mr Cummins opined as follows:
“46. The RSVP considers both static and dynamic risk factors across five areas: Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment, and Manageability.
47.In terms of the domain of Sexual Violence History, there was, by definition (reference to the specifically charged sexual acts), chronicity, diversity and escalation of sexual offending as well as psychological coercion and a breach of trust and an abuse of power.
48.In terms of the domain of Psychological Adjustment, at interview on 17/7/218 there was no evidence of denial or minimization of sexual offending and there was [sic] no attitudes supporting or condoning sexual offending. In my opinion, at the time of offending [the Applicant] was experiencing problems with self-awareness and, at least in part, these problems were reflective of him then suffering from an Alcohol Dependence Disorder which was severe in type (DSM – 5 Code 303.90). In my opinion, at the time of offending he was experiencing problems with stress and coping in relation to the problems within his then marriage. There is no history of him being sexually abused as a child although there is a history of him being physically abused by his father as a child.
49.In terms of Mental Disorder domain I did not assess him as currently suffering from any specific sexual deviance, although by definition his offending behaviour was paedophilic and possibly hebephilic (sexual attraction to persons who are post-pubescent but under the legal age) in type. I do not assess [the Applicant] as having a Psychopathic Personality Disorder or as having any personality disorder. In my opinion, at the time of offending [the Applicant] was suffering from an Alcohol Use Disorder and from a Major Depressive Disorder reflective of the state of his marriage. There is no history of violent ideation and one incident of attempted suicide.
50.In terms of the Social Adjustment domain, at the time of offending he was having problems with his sexual relationship within his marriage. He does not report any history of problems with non-intimate relationships. There is no history of problems with employment and there is minimal history of non-sexual criminality.
51.In terms of Manageability domain I would expect [the Applicant] to have problems with planning, although it was evident from his comments and presentation at interview that he does have memory difficulties which are likely to be in significant part reflective of his previous dependency on alcohol. I would expect him to have problems with offence specific treatment or with offence specific supervision.
52.Based upon all of the information currently available to me concerning [the Applicant’s] sexual offending history, it is my opinion that his current risk of committing a further sexual offence against an underage person (or against any one) is Low.”[36]
[36] Ibid, page 9, paragraphs [45] – [51] and page 10, paragraph [52] (pages 135 and 136 of the G Documents).
In the concluding part of his report, Mr Cummins opines as follows:
“OPINION AND CONCLUSIONS
…..
62.In the context of assessing [the Applicant] on 17/7/2018 I assessed his risk of committing a further sexual offence as being Low. In this regard I am aware that when His Honour Judge Bourke sentenced [the Applicant], His Honour was assisted with the Forensicare report of Dr Ducat (dated 24/11/2017) in which [the Applicant] was assessed as at Low risk of reoffending. Further, he was not assessed by Dr Ducat as having a diagnosis of Psychosexual Disorder or any current sexual deviance.”[37]
Cross-examination of Mr Cummins
[37] Ibid, page 11, paragraph [62] of the Report (page 137 of the G Documents).
The Applicant’s representative (Mr Cunynghame) initially questioned Mr Cummins about the significance of the Applicant’s offending against minors with particular reference to an assessment of his risk of reoffending. The following exchange ensued:
“MR CUNYNGHAME: Okay. Can you also describe what the relevance is, if any,
in terms of his risk of reoffending by virtue of his offences being against minors?
MR CUMMINS: I’m not too sure that I understand that question.
MR CUNYNGHAME: Well, is it significant that his sexual offences were committed
against minors as opposed to, say, adults in terms of considering whether he is a risk of offending?
MR CUMMINS: Look at the risk of sounding like I’m about to make a stupid
comment, I would say that my training tells me that we are to take sexual offending against any one – we are to regard that as very serious offending. And I don’t, in a clinical sense, make a discrimination from the point of view of the offender. In terms of the victim, I would agree that the consequences for the victim are likely to be more serious if the victim is a child.”[38]
[38] Transcript, Day 2, Friday, 12 April 2019, page 96, lines 44 – 46 and page 97, lines 1 – 8.
Mr Cummins was asked to comment on any denial or minimization of sexual offending apparent in the Applicant. The following exchange ensued:
“MR CUNYNGHAME: Okay. Now you’ve touched on this in your oral evidence
today. In your report you said that at your interview with the Applicant that there was no evidence of denial or minimization of sexual offending?
MR CUMMINS: Yes, I have said that, yes.
MR CUNYNGHAME: How does that reconcile - and I suppose I’m asking you to
elaborate on your earlier evidence here, but how does that reconcile with the fact that it took him almost two years to plead guilty after being interviewed by the police for that offending?
MR CUMMINS: Well, I don’t see that as a contradiction, and I suppose in large part I don’t see it as a contradiction because I sometimes have the experience of assessing and treating persons within a matter of days or weeks after they have actually been interviewed by the police in relation to sexual offending. So I am often exposed through my work to that scenario and, indeed, it may come as a surprise to some people present in this court but sometimes I’m in a situation where I assess and treat someone who tells me they have committed sexual offences, and at that time they haven’t been treated – sorry, they haven’t been questioned by the police. So I have a fairly broad exposure to all of those issues, and, indeed, today with mandatory reporting there’s an added dimension to that.”[39]
[39] Transcript, Day 2, Friday, 12 April 2019, page 97, lines 10 – 28.
Mr Cummins was then asked to describe any factors that might increase the risk of the Applicant reoffending in the future. He said:
“MR CUMMINS: Yes. In my opinion, the most significant potential risk factor for this man would be a return to alcohol dependency. So not simply a return to drinking alcohol but a return to being clinically dependent on alcohol. I would say that’s potentially a risk factor. Another risk factor would be if he were in an intimate relationship which began to deteriorate significantly such that he ended up feeling rejected or powerless, or overwhelmed, which would appear to have been factors of relevance in terms of his previous offending.
MR CUNYNGHAME: Are there any factors that you can think of?
MR CUMMINS: I suppose I would be prepared to say that if his mental health risk deteriorated to an extreme level, then that would potentially elevate his risk, although I would say that as a general comment about many people. Their risk of engaging in aberrant behaviour increases if their mental health becomes very, very severely impaired.”[40]
[40] Transcript, Day 2, Friday, 12 April 2019, page 97, lines 32 – 44.
Mr Cummins was asked about his findings pursuant to his use of the Static-99R assessment tool for any risk of reoffending. The following exchange ensued:
“MR CUNYNGHAME: You’ve spoken a bit about well, you’ve spoken today and also in your report a bit about the Static-99R test?
MR CUMMINS: Yes.
MR CUNYNGHAME: It’s true, isn’t it, that some people who have been diagnosed as low risk under that test, in any event, reoffend in the future?
MR CUMMINS: Yes, that’s correct.”[41]
[41] Transcript, Day 2, Friday, 12 April 2019, page 97, lines 46 – 47 and page 98, lines 1 – 2.
The Respondent’s representative then took Mr Cummins to his evidence in chief about the Applicant’s remorse. The Respondent’s representative directed Mr Cummins to respective observations by His Honour Judge Bourke on the question of remorse and, specifically, where His Honour observes the following:
“5. You receive the benefit of your pleas of guilty and level of cooperation that short history of the proceeding shows. Your plea was late; but has still facilitated the interests of justice. Your victims have not been required to give evidence again about what you did to them when they were children. I do not find that you are remorseful.
…..
32.1. Your plea of guilty. As I have stated, I do not see you as insightfully remorseful. That becomes clear to me in your account and minimization of the offending to the psychologist, Dr Ducat;”[42]
[42] Exhibit R2, Section 501, G Documents, G4, pages 42 and 47.
The Respondent’s representative was then asked:
“MR CUNYNGHAME: So, having read that finding [of His Honour Judge Bourke] and at least accepting the view that the sentencing judge’s findings as to remorse was in part … based on Dr Ducat’s findings, does that change your views as to why the sentencing judge found that he was not remorseful?”[43]
[43] Transcript, Day 2, Friday, 12 April 2019, page 98, lines 39 – 42.
MR CUMMINS: No, it does not. … In my opinion, when I assessed Mr Applicant, he was not minimizing his offending, however, he did say to me that he remained of the opinion there had been some exaggeration in terms of the allegations. And I suppose all I can say about that is that - I don’t mean this as a trite comment but sometimes that goes with the territory. It’s not at all uncommon for me to assess persons who say, ‘Well, I did this, this and this, but I didn’t do that and that, but nonetheless I have been advised to plead guilty. And so forensic [sic] reasons I am pleading guilty’.”[44]
[44] Transcript, Day 2, Friday, 12 April 2019, page 98, line 43 and page 99, lines 3 – 10.
…
MR CUNYNGHAME: Okay. Sorry, just for one moment. Can I ask you to turn to Dr Ducat’s report? At page 2 of that report at paragraph 4, Dr Ducat said that the applicant had limited insight into his offending, and it was not clear if this was due to poor self-awareness, minimization of his behaviour or the effects of alcohol use at the time of the offending. Do you agree with Dr Ducat’s views there?
MR CUMMINS: Regarding him having limited insight?
MR CUNYNGHAME: Yes.
MR CUMMINS: Well, I would say he does not have what I would describe as sophisticated insight. Now, I need to qualify that. In my opinion he is most probably of slightly below average intelligence. …… he did not generally present as a particularly sophisticated person. I formed the view that he regarded his offending as being partly reflective of his state of depression at the relevant time, partly reflective of his dependency on alcohol and partly reflective of him being for whatever reason or reasons, sexually attracted to underage persons – those specific underage persons, at that relevant time. Does that answer the question?”[45]
[45] Transcript, Day 2, Friday, 12 April 2019, page 99, lines 27 – 44.
Mr Cummins was then asked about the Applicant’s denial of certain other aspects of the factual circumstances of his offending and how such a denial can inform an assessment of any risk of recidivism. The following exchange ensued:
“MR CUNYNGHAME: … Thank you. At – then at paragraph 30, Dr Ducat noted the Applicant’s statements at the interview, that he only agreed with some of the facts, but pleaded guilty to the others to prevent any further harm to his family and victims?
MR CUMMINS: Yes.
MR CUNYNGHAME: He also denied the chronicity of the offences, saying they occurred over an 18 month period?
MR CUMMINS: Yes.
MR CUNYNGHAME: But we know as a fact that it occurred over an eight-year period - - - ?
MR CUMMINS: Yes.
MR CUNYNGHAME: - - - as he was convicted?
MR CUMMINS: - - - Yes.
MR CUNYNGHAME: What impact does those admissions by the applicant to Dr Ducat, have in relation to his risk of reoffending?
MR CUMMINS: - - - well, I think the main point I would make there is that Dr Ducat and I assessed this man at quite different times and under quite different circumstances. So, in my opinion, it’s quite likely – I’m quite prepared to accept that what Dr Ducat has contained at paragraph 30 was accurate at that time. I assessed Mr Applicant quite some time later, so he had a lot of time to reflect on his circumstances. He had been through the legal process. He had been sentenced. He would have obviously heard what the judge had to say in terms of the judge’s views about the seriousness of his offending and the time period over which he offended, and I have little doubt that that information would have added to Mr Applicant’s ability to develop further insight and further understanding regarding his offending behaviour.”[46]
[46] Transcript, Day 2, Friday, 12 April 2019, page 100 , lines 34 – 47 and page 101, lines 1 – 11.
The Respondent’s representative then asked Mr Cummins to comment on the significance of threats made by the Applicant to one of his victims insofar as the making of such threats can inform any assessment of future risk. The following exchange ensued:
“MR CUNYNGHAME: …. In the sentencing remarks the sentencing judge accepted and found – and this is at paragraph 16 – that he threatened one of his victims. In Dr Ducat’s report, again, at paragraph 30, Dr Ducat denied that he made any threats. As far as – and you can correct me if I’m wrong – as far as I could see you didn’t discuss that in your report. How would you say that his denial of that aspect of his offending would be relevant to the risk of him reoffending?
MR CUMMINS: Well, it is correct I made no mention of that in my report, and that was because I did not specifically ask him about that, and I accept I could be criticized for not having done that. At the same time what I would say is it is extremely common for victims of sexual offending to state or to allege that they were threatened and because I have assessed and treated hundreds and hundreds of victims of sexual offending I would say it is very likely that threats are made in reality. The fact that, in this instance, threats may have been made - - -
MR CUNYNGHAME: Well, it was found to be made, it wasn’t may have been. The sentencing judge found - - -?
MR CUMMINS: Well that was part of the agreed upon summary; that is correct.
MR CUNYNGHAME: Which he was convicted for?
MR CUMMINS: - - - yes, I accept that. I do accept that. The fact does not necessarily play any specific role in the issue of assessing risk. Perhaps I should quality [sic] that also. There would be some situations where the making of extreme threats and perhaps then taking steps to act on those threats would be taken into consideration as an additional risk factor, but usually in and of itself that would not be regarded as a specific risk factor. It is not a factor which features directly in the Static-99R. It is a factor which I would argue could be included if it was regarded as extreme – if those threats were regarded as extreme in nature through the RSVP.
MR CUNYNGHAME: So if someone was, during the course of abusing someone, threatened to kill them if they said anything, would you characterize that as extreme?
MR CUMMINS: In terms of making the assessment no, I would not, no.”[47]
[47] Transcript, Day 2, Friday, 12 April 2019, page 101 , lines 14 – 45.
Mr Cummins was then asked about the timing and motivation of the Applicant’s plea of guilty to the offences with which he had been charged and how this can inform any assessment of a future offending risk. The following exchange ensued:
“MR CUNYNGHAME: Based on your interview with him, when you say that he was prepared to plead guilty to some of the offences, did you form the view that he accepted that the factual circumstances underlying those offences …. occurred?
MR CUMMINS: Look, I didn’t specifically ask him that question. It seemed to me that he was satisfied that – the term I would use is due process occurred. He pleaded guilty and, you know, he was sentenced to a period of imprisonment, and in my opinion …. he was not prepared to nominate himself to be assessed, to determine whether he needed to participate in offence specific treatment, and in my view that is highly significant in terms of the issues of guilt and remorse…..
MR CUNYNGHAME: So to take that one step further …. you’ve said that he pleaded guilty to them, and he discussed that with you, but he did admit that the facts occurred in relation to the offences that he pleaded guilty to?
MR CUMMINS: I did not specifically ask him about each scenario. I questioned him about …. ‘Are you aware that you have pleaded guilty to’ – or ‘that you’ve pleaded guilty to charges involved with you masturbating in the presence of a child, that the offending involved digital vaginal penetration?’, and he acknowledged that.
MR CUNYNGHAME: And if I understand it correctly, this was as a result of discussions with solicitors and family members at the time, that that was the best course of action?
MR CUMMINS: Well that’s – he specifically said to me that he spoke to his legal advisors and he spoke to one of his daughters, and that on the basis of that information he decided to plead guilty.”[48]
[48] Transcript, Day 2, Friday, 12 April 2019, page 102 , lines 21 – 47 and page 103, lines 1 – 3.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
I certify that the preceding 164 (one hundred and sixty –four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
............................[SGD]............................................
Associate
Dated: 24 April 2019
Date(s) of hearing: 11 and 12 April 2019 Counsel for the Applicant: Mr John Maloney Advocate for the Applicant: Ms Catherine Farrell (Solicitor) Solicitors for the Applicant: Clothier Anderson Immigration Lawyers Advocate for the Respondent: Mr Adam Cunynghame (Solicitor) Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Expert Evidence
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