ZBMD and Minister for Home Affairs (Migration) - [2019] AATA 1278

ZBMD and Minister for Home Affairs (Migration) [2019] AATA 1278 (13 June 2019)
Division:GENERAL DIVISION
File Number:2018/3132
Re:ZBMD
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:13 June 2019
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
11 May 2018 not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
..............................[sgd].....................................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – child sex offences – Direction no. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to Philippines when Applicant has voluntarily returned – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 29(1)(d)
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(3A), s 501(6), s 501(6)(a), s 501(6)(e) s 501(7),
s 501(7)(c), s 501CA, s 501CA(4),
Sentencing Administration Act 2003 (WA) – s 5B
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Margach and Minister for Home Affairs [2019] AATA 353
Nathanson and Minister for Home Affairs [2019] AATA 642
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014).
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.1, 14.2, 14.3, 14.5, Part C.
REASONS FOR DECISION
Senior Member Dr M Evans
13 June 2019
BACKGROUND

The Applicant is a 41 year old man who was born in the Philippines.
He resided in Australia for approximately 10 years and 7 months, having arrived as an adult in August 2007 (T65, page 651) when he was 29 years of age.
On 30 July 2012 the Applicant was granted a Class AN Subclass 119 Regional Sponsored Migration Scheme visa (T6, page 41) (Visa).
In a letter dated 28 June 2016 from the Department of Immigration and Border Protection (Department), the Applicant was advised that his Visa had been cancelled on the basis that he did not pass the character test under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (T6, page 41). This was because, on 7 November 2014, the Applicant was sentenced in the Perth District Court of one count of “indecently deals with a child over 13 and under 16” and six counts of “sexually penetrated a child over 13 and under 16” (T6, page 42; T29, pages 151-152).
The letter advised the Applicant that he could make representations about whether the decision to cancel his Visa should be revoked. The Applicant made representations (T31) which were received by the Department on 26 July 2016 (T9, page 82).
On 11 May 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s Visa (T27, page 132). This is the Reviewable Decision that is currently before the Tribunal. The Reviewable Decision was sent to the Applicant, via his (former) legal representatives, in a letter dated 14 May 2018 (T2, page 16).
On 7 June 2018, the Applicant lodged an application in the Administrative Appeals Tribunal (Tribunal) requesting a review of the Reviewable Decision (T2, pages 3-5).
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision of 11 May 2018 was sent to the Applicant’s legal representatives by email, under cover of a letter dated 14 May 2018 (T2, page 16).
The Applicant lodged his application for review in the Tribunal on

7 June 2018 (T2, page 3). At that time, the Applicant was outside the migration zone, having left Australia to return to the Philippines on 18 April 2018 (T65, page 650). He therefore lodged his application for review by the Tribunal within the twenty-eight day period after he received the Reviewable Decision in accordance with s 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.
As the Applicant is not in the migration zone the matter is not expedited under s 500(6L) of the Migration Act, and the 84 day timeframe for handing down the decision does not apply.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 21 January 2019. The Applicant appeared by telephone link from the Philippines, and was self-represented.
The Respondent was represented by Ms Tattersall, who appeared in person.
The Applicant gave oral evidence and was cross-examined. The Applicant also called his wife, who gave evidence in person with the assistance of an interpreter. He also called his 19 year old son and 14 year old daughter. The Applicant also called Mrs Susette Monk, Coordinating Chaplain at Karnet Prison. Both the Applicant and Ms Tattersall made oral submissions.
As the Applicant was self-represented, the Tribunal assisted with asking the Applicant and the Applicant’s witnesses questions by way of evidence in chief.
The Tribunal admitted the following documents into evidence at the hearing:
(a)unsigned and undated submission from the Applicant (Exhibit A1);
(b)written submissions from Applicant’s former legal representatives dated 2 June 2017 (Exhibit A2);
(c)Applicant’s Statement of Facts, Issues and Contentions dated 10 October 2018 made in response to the Respondent’s Statement of Facts, Issues and Contentions (Exhibit A3);
(d)Applicant’s Statement of Facts, Issues and Contentions dated 7 June 2018 attaching the decision of Coker v Minister for Immigration and Border Protection [2017] FCA 929 (Exhibit A4);
(e)undated written statement from Applicant’s daughter (Exhibit A5);
(f)undated written statement from Applicant’s son (Exhibit A6);
(g)undated written statement from Applicant’s wife (Exhibit A7);
(h)undated written statement from a friend of the Applicant, Mrs C (Exhibit A8). This statement is written in a dialect spoken in the Philippines called Tagalog. It was translated at the Tribunal hearing by the interpreter, and the Tribunal has had the benefit of reviewing the translated statement in the written copy of the transcript (pages 110-111);
(i)undated written statement from a friend of the Applicant, Mr C (who is married to Mrs C) (Exhibit A9). This statement was also written in the Tagalog dialect and was translated by the interpreter at the Tribunal hearing (see transcript, page 109);
(j)letter of support from Mrs Susette Monk, Coordinating Chaplain at Karnet Prison dated 30 August 2018 (Exhibit A10);
(k)s 501 documents (G documents) numbered T1 to T65 comprising 651 pages (Exhibit R1), which have been incorrectly labelled as “Section 37 – T-documents”;
(l)Respondent’s Statement of Facts, Issues and Contentions dated 4 October 2018 (Exhibit R2);
(m)documents produced under summons from Western Australia Police comprising 98 pages (Exhibit R3); and
(n)documents produced under summons from Department of Corrective Services, comprising 43 pages (Exhibit R4).
Exhibit R1 contained the Applicant’s Sex Offending Medium Program (SOMP) Completion Report (SOMP Report) which was heavily redacted (T35, pages 266-271). Additionally, Exhibit R4 did not include an un-redacted copy of the SOTP Report. The Tribunal issued a further summons to the Department of Corrective Services on 23 January 2019 to obtain an un-redacted copy, and the parties were given the opportunity to make further written submissions in response to the un-redacted copy of this report. As a consequence, the following written submissions were received:
(a)submission from the Applicant dated 12 February 2019; and
(b)submission from the Respondent dated 28 February 2019.
At the time of the hearing, Direction No 65 was applicable. However, on 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act. Direction No 79 commenced operation on 28 February 2019, and replaced Direction No 65. Consequently, as the Tribunal is handing down this decision after 28 February 2019, the Tribunal must apply Direction No 79. The Tribunal gave the parties the opportunity to make further submissions to address the amendments to Direction No 65 which are now part of Direction No 79. The following submissions were received:
(a)submission from the Applicant, undated but filed with the Tribunal on 20 March 2019; and
(b)submission from the Respondent dated 28 March 2019.
The Tribunal has had regard to all of the written and oral submissions and material before it. The Tribunal is satisfied that the parties were afforded an adequate opportunity to be heard and to make submissions.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7); or
…
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
As noted above, on 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65.
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(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.
Further guidance as to how a decision-maker is to apply the considerations in Direction No 79 can be found in paragraph 8 of Direction No 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 7 November 2014, the Applicant was sentenced in the Perth District Court after pleading guilty to one count of “indecently deals with a child over 13 and under 16” and six counts of “sexually penetrated a child over 13 and under 16” (T6, page 42; T29, pages 151-152). He received an effective sentence of 4 years and 3 months comprising concurrent and cumulative terms (T30, page 165).
Consequently, the Applicant does not pass the character test under

s 501(6)(a) and s 501(7)(c) of the Migration Act. He also does not pass the character test under s 501(6)(e) because he was convicted of sexually based offences involving a child. The Applicant also agreed that he does not pass the character test (Exhibit A2, paragraph [18]).
The Tribunal must therefore now consider whether there was “another reason” why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction no. 79 then provides:
Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
A summary of the Applicant’s criminal history is as follows (Exhibit R3, page 7; see also T29):

Court	Court Date	Offence	Court Offence
District Court of WA	07.11.2014	Indecently deals with a child over 13 under 16; Criminal Code (WA) 321(4)	Imprisonment: 6 Months - Concurrent
District Court of WA	07.11.2014	Sexually penetrated a child over 13 and under 16; Criminal Code (WA) s 321(2)	Imprisonment: 2 years & 10 months To be served cumulatively upon count 3 & concurrent with remaining counts
District Court of WA	07.11.2014	Sexually penetrated a child over 13 and under 16; Criminal Code (WA) s 321(2)	Imprisonment: 17 months To be served cumulatively upon count 2 & concurrent with remaining counts
District Court of WA	07.11.2014	Sexually penetrated a child over 13 and under 16; Criminal Code (WA) s 321(2)	Imprisonment: 2 years & 8 months - concurrent total: 4 years & 3 months imprisoned from 14 October 2014
District Court of WA	07.11.2014	Sexually penetrated a child over 13 and under 16; Criminal Code (WA) s 321(2)	Imprisonment: 2 years & 10 months - Concurrent
District Court of WA	07.11.2014	Sexually penetrated a child over 13 and under 16; Criminal Code (WA) s 321(2)	Imprisonment: 2 years & 8 months - Concurrent
District Court of WA	07.11.2014	Sexually penetrated a child over 13 and under 16; Criminal Code (WA) s 321(2)	Imprisonment: 2 years & 8 months - Concurrent

These offences occurred between 1 September 2010 and 31 August 2011, and were against the same victim, a 14 and 15 year old girl at the time of the offences, employed at a restaurant where the Applicant worked as a manager (Exhibit R3, pages 41-43).
The indecent dealing offence involved the Applicant driving to the complainant’s residence after finishing a work shift at 1.00 am. The complainant came outside and sat in the passenger seat in her pyjamas. The Applicant kissed the complainant, inserting his tongue into her mouth and touched the victim on her breast and attempted to remove her singlet (R3, page 41).
The six counts of “sexually penetrated a child over 13 and under 16” involved the Applicant having sex with the 14 year old victim in the back of his car, having sex with the victim at her house twice on her bedroom floor and once on her bed, and inserting his penis into the complainant’s mouth and also inserting his penis into her vagina after the Applicant drove the victim to his house (Exhibit R3, pages 42-43). The sexual intercourse was unprotected and on two of these counts the Applicant ejaculated into the victim’s vagina, and on another occasion into the victim’s mouth (T30, page 156).
In his sentencing remarks, His Honour Derrick DCJ noted the seriousness of this offending and also found there were aggravating factors (T30, pages 155-156):
The facts of your offences largely speak for themselves so far as the seriousness of your conduct is concerned. Any offence of the type that you have committed or of the types that you have committed is serious, however, the inherent seriousness of your conduct is, in my view, aggravated by the following factors.
First, there was a significant age disparity between you and the complainant. She was 14 and 15 years of age at the time of the offences. She was an impressionable and vulnerable young teenager who lacked the emotional maturity to fully appreciate the wrongfulness and possible long term adverse consequences for her of what was occurring between the two of you. You, on the other hand, were 32 years old. You were married with children.
Second, you at all material times new approximately how old the complainant was. I am satisfied beyond reasonable doubt of that fact based on the information contained in the prosecution brief as referred to this morning by the prosecutor. I’m not suggesting that you at all times new exactly how old the complainant was, that is, whether she was 14 or 15, but I am satisfied beyond reasonable doubt that you knew at all times that she was not 16 and that what you were doing was not only illegal but also morally wrong, nonetheless you proceeded with your conduct for your own sexual gratification.
Third, given that you were the… manager at the [name omitted] store in which the complainant worked…, you did have easy and largely unsupervised access to the complainant. You made use of your ease of access to the complainant to engage with the complainant, to develop a relationship with the complainant and ultimately to progress to engaging in sexual activity with her. In this sense, you abuse the position of authority and trust which was necessarily reposed in you by reason of your position as the… manager of the store.
Fourth, as is apparent from what I have just said, your offences were obviously not committed on the spur of the moment or spontaneously. They were, I am satisfied, to some extent premeditated. It is clear on the evidence contained in the prosecution brief that you commenced and fostered your relationship with the complainant. I am satisfied beyond reasonable doubt that you did that with a view to or at least in the hope of progressing to some sort of sexual activity with her.
Fifth, the offences were committed over a number of months, a relatively prolonged period. This is not a case in which you engaged in your wrongdoing over a short space of time and before you had the opportunity to fully reflect on the wrongfulness of what you were doing.
Sixth, the sexual intercourse that you had with the complainant was unprotected. Seventh, in committing the offences the subject of counts two and five, you ejaculated inside the complainant vagina. Eighth, in committing the offence the subject of count six, you proceeded to ejaculate in the complainant’s mouth.
The police first became aware of the offending after the victim contacted the Kids Helpline in January 2011, stating that she was upset and suicidal (R3, pages 9 and 72-73). The victim was initially reluctant to speak to police and when she did speak to them, she stated she was not suicidal (R3, page 9). In sentencing, His Honour Derrick DCJ also noted the detrimental effect of the offending on the Applicant’s victim (T30, pages 156-157), which, in the Tribunal’s opinion, further shows the seriousness of the offending:
Ninth, as is revealed by the complainant’s victim impact statement, your conduct has had and continues to have an adverse effect on her. She points out that once she started her relationship with you, her schoolwork suffered and she began to lose friendships. She states that rumours circulated at school about her relationship with you and that this distressed her and lowered her self-esteem.
She states that she still blames herself for what occurred, that she struggles to rationalise what happened to her and that she felt disgusting. She says that as a consequence of what you did to her, she has engaged in many incidence of self-harm and has suffered emotional distress. She states that as a result of her distress and difficulties in dealing with what you did to her, she has had to engage in group therapy as an inpatient at a [name omitted] psychiatric hospital.
She states that she continues to work to put the events behind her. She says she feels a lot of [sic] less of a woman because she was contaminated by the actions of a man who committed offences against her before she was old enough to understand the potential ramifications. She concludes her victim impact statement by saying that she will spend years trying to move on from what occurred to her.
Now, can I make this clear about the victim impact statement. It is clear from the prosecution brief and indeed it is conceded by the State that the complainant had issues before you came into her life. Those issues included some self-harming, she had problems at home, she did have emotional difficulties so I’m not satisfied that all of the troubles that the complainant refers to in her victim impact statement can be attributed to your offending against her and I don’t make that finding.
But what I am satisfied of is that your conduct towards her contributed to and perhaps exacerbated some of the emotional problems that she suffered before you came into her life and certainly continued to suffer after the commission of the offences against her.
…And I’m satisfied to that extent that your offences have had an adverse impact on the now 18-year-old complainant and that they will continue to do so.
The Tribunal further notes that the victim was awarded the sum of $59,704.30 Criminal Injuries Compensation for the offences against her which the Applicant is liable to repay (T62, page 646). This compensation also indicates the seriousness of the offending.
Paragraph 13.1.1(1)(a) of Direction No 79 states that sexual crimes are viewed very seriously. As the Applicant’s offences fall into this category, the Tribunal views them very seriously. This seriousness is also noted in the remarks of the sentencing judge, and in the detrimental impact which the offending had on the victim.
Paragraph 13.1.1(1)(b) of Direction No 79 is not applicable because the Applicant’s offences were not “crimes of a violent nature against women or children”.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community are serious. Children are vulnerable members of the community. Indeed, many laws, including the criminal law, operate to protect children who are generally accepted as vulnerable and as requiring protection. There is a substantial power imbalance between adults and children, with adults occupying a position of trust, authority, knowledge and often physical strength over children. Indeed, the age disparity between the Applicant and the victim and his position of authority as the victim’s manager were referred to by the sentencing judge, as was the Applicant’s awareness of the victim’s age at the time of the offending. The sentencing Judge further commented, “that the courts must do what they can to protect vulnerable young teenage girls from those who might be tempted for whatever reason to engage in sexual activity with them” (T30, page 163). Consequently, the Tribunal finds that the Applicant’s sexual offences against the victim when she was 14 and 15 years of age are serious.
Paragraph 6.3(3) of Direction No 79 is also relevant in that examples of a “serious crime” include crimes of a sexual nature against women or children. It states that persons who commit these crimes should generally expect to forfeit the privilege of staying in Australia. This principle is applicable to the Applicant’s situation as his offences are sexual offences involving a minor who was 14 and 15 years of age at the time.
Applying paragraph 13.1.1(1)(d) of Direction No 79, on 7 November 2014 the Applicant was sentenced to an effective term of imprisonment of four years and three months by the District Court of Western Australia. This term was comprised of concurrent and cumulative terms of imprisonment which totalled over 15 years. The sentencing Judge ordered that the Applicant would be eligible to be considered for release on parole after serving a minimum of two years and three months imprisonment (T30, page 165). In his sentencing remarks, the sentencing judge found that the offending was so serious that a custodial term of imprisonment was appropriate. His Honour stated (T30, page 164):
… you were a 32 year old man who engaged in a significant ongoing sexual relationship with a 14 and 15 year old girl who you knew was emotionally vulnerable, and in relation to whom you were, by reason of your employment, in a position of trust.
I consider that such conduct is so serious that suspension of the terms of imprisonment that I am going to impose is simply not appropriate.
A term of imprisonment is generally imposed as a last resort, particularly when the person being sentenced does not have a prior criminal history, as is the case with the Applicant. In the Tribunal’s opinion, the term of imprisonment imposed on the Applicant reflects the serious nature of the Applicant’s offending.
With respect to the trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant’s criminal offending occurred between September 2010 and August 2011 and was against the same victim. As noted above, prior to this offending, the Applicant did not have a criminal record. Similar offences against the victim occurred during this period, and whilst the offending did not escalate in seriousness, as noted by the sentencing judge, the offending was not a one-off event, and as such continued to occur after the Applicant had the opportunity to reflect on the wrongfulness of what he was doing.

With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Tribunal will often consider whether offending over a period of time by an Applicant places a burden on the resources of police, corrective services, and the courts. The Applicant was sentenced for all of the offences on the same date. He pled guilty on the first day of the trial. Apart from requiring the State to fully prepare for the trial, in general, the Applicant’s offending has not had a cumulative effect in terms of placing a burden on the resources of the justice system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending, and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(h) of Direction No 79 is also not applicable because the Applicant has not previously received any warning that further offending may affect his migration status.
Paragraph 13.1.1(1)(i) of Direction No 79 is also not applicable because the Applicant has not committed any crime in prison or immigration detention.
On balance, the Tribunal finds that the nature of the Applicant’s offending is very serious and strongly weighs against the revocation of the cancellation of the Applicant’s Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[references omitted]
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
With respect to the nature of the harm that could result if the Applicant is to reoffend, the Respondent, in Exhibit R2, [31], submitted that, “should the applicant reoffend, members of the Australian community would be at risk of sexual assault and psychological harm”. The Tribunal notes that sexual offending can have a detrimental impact on victims who may not only suffer physical harm, but also psychological harm which can continue well into adulthood. Applying paragraph 13.1.2(1)(a) of Direction No 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend in a similar manner is potentially very serious.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79).
In his sentencing remarks of 19 December 2012, His Honour Derrick DCJ reviewed the pre-sentence report and made relevant observations about the Applicant’s insight into his offending. His Honour’s comments indicate, that at the time of sentencing, the Applicant only partially appreciated the seriousness of his offending, and the impact on the victim. His Honour stated (T30, page 161-162):
As to the issue of acceptance and responsibility, acceptance of responsibility and remorse. The writer of the pre-sentence report states that you presented as having limited insight into your offending behaviour, particularly in relation to the position of trust that were are in. She states that when she questioned you about your actions, you justified and minimised your behaviour. She states that you told her that the complainant had problems of her own at the time and that although you wanted the relationship to stop it was too late. That is, of course, the explanation that has been put on your behalf today.
The writer of the report also states that you claimed that the complainant had had previous suicidal ideations, engaged in acts of self-harm and that you justified by ending your sexual relationship with her because you felt she was vulnerable and would hurt herself. Again, that is the explanation that has been advanced. And as I’ve already indicated, in my view, the fact that you apparently recognised the complainant’s vulnerability at the time of engaging in sexual activity with her, is not something that mitigates the seriousness of your conduct.
The writer of the pre-sentence report also says that although you said you were sorry for your actions, your regret appeared to be directed more at the position which you had placed you and your family in, rather than genuine remorse for the complainant. You apparently made comments to the writer of the presentence report regarding the supposed promiscuity of the complainant and stated that she had also had sex with other staff members at the [name omitted] store. So the writer of the report concludes this portion of her report by saying that you did not display insight into the potential impact of your offending on the victim.
Your counsel urges me to arrive at a different view. His submission is, in essence, that despite the impression that you obviously conveyed to the writer of the presentence report you do understand the wrongfulness of what you have done and you are remorseful for it. He argues that your plea of guilty demonstrates your remorse. I think it is difficult in light of the strong comments of the writer of the presentence report to come to the conclusion that you have, at this point, gained full insight into the seriousness of what you did. I just think that some of the comments that you made to the presentence report writer just do not sit comfortably with the proposition that you have gained full insight into your offending behaviour.
I think you have some appreciation of how serious it was but not a total and complete appreciation. I am, however, willing to accept in light of what your counsel has said to me that over the effluxion of time, particularly since you entered your guilty pleas, you have reflected on what you have done and that you are sorry for what you have done. That is sorry for what you did to the complainant, not only sorry for the position that you’ve put yourself and your family in. So to that extent I am willing to find that you do have some remorse for your conduct and that is something that I take into account.
His Honour also commented on the Applicant’s unmet treatment needs and likelihood of reoffending (T30, page 162):
The writer of the pre-sentence report identifies that you have a number of issues which require addressing, namely appropriate relationship boundaries, lack of insight into your offending, your poor communication skills, your poor problem-solving skills and your lack of consequential thinking.
The existence of these issues might, in some cases, suggest that an offender is at risk of reoffending. However, given your family support structure and the consequences that your convictions have had and will have for you, I doubt that you are at any significant risk of committing further offences of this type and I don’t make a finding to that effect.
In summary, His Honour seemed to be of the view that the Applicant did have unmet treatment needs which required addressing, and that the Applicant was not a “significant risk” of reoffending, which indicates a view that there was still some risk of the Applicant reoffending, although the exact parameters of that risk were not specified by His Honour.
It is therefore relevant for the Tribunal to consider any treatment, rehabilitative programs, reports and insights of the Applicant subsequent to sentencing to assess the likelihood of the Applicant reoffending.
Upon reviewing the pre-sentence report referred to by His Honour, the Tribunal further notes that the pre-sentence report recommended that the Applicant undertake a community based sex offender treatment program and that he may benefit from a referral to psychological counselling with the aim of exploring and addressing his criminogenic needs (R4, page 5). This indicates the report writer’s view that the Applicant still had some outstanding treatment needs in relation to his sexual offending.
During his term of imprisonment, the Applicant was assessed as requiring the SOMP (T57, page 566). The basis for the assessment was stated in the SOMP Report dated

6 December 2016 as:
·     Static 99R rating – Mr [Applicant’s] score places him in the low risk category for sexual offence recidivism relative to other adult male sex offenders
·     Sex Offending Checklist –recommended Mr [Applicant] participate in a medium intensity sex offending program to increase Mr [Applicant’s] insight into his offending and issues related to consent and appropriate boundaries
·     Pre-sentence report prepared for the court identified Mr [Applicant’s] criminogenic needs as “relationship and appropriate boundaries; sexual offending; lack of insight into offending; communication skills; poor problem solving skills and lack of consequential thinking”
·     Pre-group interview with the facilitators and Mr [Applicant’s] participation in the early stages of the program indicated that the areas requiring treatment were related to Mr [Applicant’s] poor work life balance and subsequent relationship issues; his tendency towards passivity, maintaining appropriate boundaries/ legal consent, and cognitive distortions around offending behaviour.
(References omitted.)
The Applicant’s treatment needs and treatment goals were identified as: healthy sexual relationships; interpersonal relationships; and cognitive distortions around offending behaviour (page 3 of SOMP program completion Report).
The Applicant undertook the SOMP between 5 September 2016 and 29 November 2016. The program facilitators reported the following with respect to the Applicant’s treatment gains following completion of the SOMP (page 6):
Mr [Applicant] completed all sessions of the [SOMP] and he impressed as someone who was motivated to do the work in order to understand his past offending behaviour. His participation in the program was consistent in that he expressed prosocial beliefs and opinions and he was an active participant during group activities and discussions. He expressed deep regret for his past behaviour and the negative impact his actions have had on the primary victim, secondary victims and the community; behaviour which did not accord with his Christian values. His disclosures throughout the program did not indicate any deviant sexual interest or behaviour and by contrast suggestive of a man who was committed to his long-term marriage and to family life. Facilitators consider he made gains in all designated areas.
It appears that no formal risk assessment was undertaken following the Applicant’s completion of the program. Although it stated that the Applicant had made treatment gains in the identified areas, the SOMP Report did not specify the Applicant’s category of risk after completion of the program. The facilitators did, however, recommend that if the Applicant was eligible for supervised release, that the following conditions (which the Tribunal notes would assist to reduce his likelihood of reoffending) be imposed:
·     No unsupervised contact with children under 16 years.
·     Adhere to conditions outlined by the Victim mediation Unit (VMU), Community and Youth Justice Services (CYJ), and Sex Offender Management Squad (SOMS).
·     Present his Self-Management Plan to his Community Corrections Officer and continue to monitor and adapt this plan if required.
Applying these conditions does suggest there was some question about the Applicant’s likelihood of reoffending, in the context that his treatment gains were yet to be tested in the community. However, it does appear that after completing the SOMP, the Applicant’s likelihood of sexual reoffending is likely to have been reduced.
To the Applicant’s credit, he also completed several voluntary programs whilst in prison (T35, page 280), including vocational courses such as a Certificate II in Warehouse Operations (T59, page 576 and 577) and Introduction to Workplace Health and Safety (T59, page 579; see also academic transcript at T59, pages 574-575). More specific details of relevant programs included:
(a)a non-intensive, voluntary program called Reach for Life, where victims of crime share the impact of the criminal offending against them with participants (T38, page 416);
(b)Life Skills Re-entry Program completed in March 2016 (T35, page 337). The program objectives included to improve prosocial skills, interpersonal relationships, and to develop independent living skills and use community-based resources upon release from prison;
(c)Standing on Solid Ground, completed in approximately June 2016, which was described in the Certificate of completion as a 50 hour program about emotional intelligence (T35, page 336);
(d)the 2-day Gatekeeper Suicide Prevention Workshop which ran in July 2016 (T50, page 541);
(e)a letter from a counsellor dated 4 August 2017 also indicated that the Applicant had been seeing a counsellor for one-on-one “supportive counselling” (although it is not clear how many counselling sessions he attended), and that he had attended several non-intensive, voluntary programs facilitated by the counsellor concerning grief, stress and cognitive skills (T50, page 542; see generally pages 539-547).
Mrs Susette Monk, Coordinating Chaplain at Karnet Prison, who facilitated the Reach for Life Program gave evidence at the Tribunal hearing that was supportive of the Applicant having made substantial gains in the Reach for Life Program. The following exchange with the Tribunal (transcript, page 95) is relevant:
SENIOR MEMBER: Yes, and obviously you remember ZBMD doing the program?
CHAPLAIN:     Yes, I do, very well.
SENIOR MEMBER:   What was it about him that you remembered in terms of how he went in that program?
CHAPLAIN:     Mainly a considerable amount of emotion. His understanding of “This is something that should never have happened, I’m responsible, I’m the adult, and I have to accept that. And it’s something that is not going to reoccur.” And he was very insistent and very emotional about that.
SENIOR MEMBER:   So what are you views about the benefits that you thought he got from the program?
CHAPLAIN:     I think he came very much face-to-face with himself, and what had happened, and didn’t like it at all, and virtually, as he has vowed, that’s not going to occur. He understands what happened, why it happened, how it happened, that it was wrong, and there’s no way he wants to have anything like that reoccur. And I really felt he was most sincere about that. It wasn’t just words. It was his heart. It was everything he put into that. You sort of had to be there to understand why I found it so moving, I think.
Mrs Monk did, however, acknowledge that no formal research had undertaken as to whether completion of the program reduced the risk of recidivism (transcript, page 95), and although her opinion was that she was “very certain” that the Applicant would not reoffend (transcript, page 96), she was not fully aware of his offending and stated that she did not know very much about his offending (transcript, page 97). It is therefore difficult to ascertain the extent of the gains made by the Applicant after completing this program and whether they would reduce his likelihood of reoffending.
To the Applicant’s credit, he displayed good prison behaviour during his prison term (T57, page 565). On 20 December 2016 at his first opportunity for parole, the Prisoners’ Review Board of Western Australia (PRB) granted the Applicant parole, with a release date of 13 January 2017 (T39, page 417). The reasons for parole were as follows:
No prior criminal history.
Participation in several voluntary programmes demonstrates a motivation and willingness to address offending behaviour.
Successful completion of the Medium Intensity Sex Offending Treatment Program with reported treatment gains in all designated areas. You have no outstanding prison treatment programme [sic] requirements.
The conditions of parole will further reduce the risk to the safety of the community.
The parole plan includes confirmed suitable accommodation and support from prosocial family.
The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
The PRB imposed the following conditions to the Applicant’s parole order (T39, page 417):
Not to change address without the prior approval of the Community Corrections Officer.
Provide your self-management plan formulated in the Medium Intensity Sex Offending Treatment Program to your Community Corrections Officer.
To abide by Australian National Child Offender Register requirements.
To attend programmes [sic] and counselling as directed.
To have no direct or indirect contact with the victim.
To have no unsupervised contact with female children under 16 years of age.
On 10 January 2017, the Applicant signed a request that he be denied parole and so the PRB cancelled his parole order on 12 January 2017 (T39, page 417). However, on 11 May 2017, the PRB again granted the Applicant parole with a release date of 26 May 2017, for the following reasons (T61, page 640):
1.    Successful completion of the Medium Intensity Sex Offending Treatment Program with reported treatment gains in all designated areas. You have no outstanding prison treatment program requirements.
2.    Participation in several voluntary programs demonstrates a motivation and willingness to address offending behaviour.
3.    No prior criminal history.
4.    The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
5.    The parole plan includes confirmed suitable accommodation and support from prosocial family.
6.    The conditions of parole will further reduce the risk to the safety of the community.
7. Your visa has been cancelled under section 501 of the Migration Act however the Board notes that you have a viable parole plan.
The PRB again imposed the following conditions in addition to the standard obligations and requirements of the parole order (T61, pages 640-641):
1.    To have no direct or indirect contact with the victim.
2.    To abide by Australian National Child Offender Register requirements.
3.    To have no unsupervised contact with female children under 16 years of age.
4.    To attend programs and counselling as directed.
5.    Not to change address without the prior approval of the Community Corrections Officer.
6.    Provide your self-management plan formulated in the Medium Intensity Sex Offending Treatment Program to your Community Corrections Officer.

The grant of parole to the Applicant on each occasion indicates that the PRB was of the view that with monitoring and supervision during the period of parole to ensure that the specific conditions of the parole order were complied with, the Applicant did not pose an unacceptable risk to the safety of the community (see Sentence Administration Act 2003 (WA), s 5B).
As the PRB noted on both occasions, should the Applicant be released into the Australian community, he would be subject to Australian National Child Offender Register (ANCOR) reporting requirements and conditions which may act as a protective factor to reduce the likelihood of his reoffending.
A submission from the Applicant’s former solicitors (Exhibit A2, paragraphs [61]-[63]), stated that, if he is able to return to the Australian community, the Applicant intends to resume employment in the aged care sector where he worked prior to his incarceration. The submission states that if he is unable to secure employment in that sector, he may be able to undertake work as a storeman, given his completion of a Certificate II in Warehouse Operations during his time in prison. The Applicant’s former solicitors suggest that being employed would reduce the likelihood of reoffending. Whilst the Tribunal agrees that the Applicant has had a consistent employment history, and that employment can be a protective factor, the Tribunal can only give minimal weight to the Applicant’s potential or likely employment as a protective factor. This is because the Applicant met the victim at his place of employment, and his relationship with the victim occurred whilst he was employed there.
The Tribunal further notes that leading up to his most recent parole hearing, the Applicant contacted Clinical Psychologist Mr Peter Dunlop on approximately 27 March 2017. A letter from Mr Dunlop dated 5 April 2017 to the Applicant states that Mr Dunlop was willing to see the Applicant for individual therapy and that he would be willing to save a place in his group program for the Applicant (T38, page 407). However, as the Applicant was voluntarily returned to the Philippines on 18 April 2018, his participation in this course did not eventuate, and there is no evidence before the Tribunal of any plans for the Applicant to engage in treatment with Mr Dunlop should the Applicant return to Australia.
Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. However, the Applicant’s evidence at the Tribunal hearing was at times evasive and inconsistent which raised concerns about his insight into his offending and his remorse. For example, the Applicant was evasive when asked about the age of the victim, at first stating that he thought the victim was 16, before conceding that he did not disagree with the finding of the sentencing judge that he knew that the victim was 14 or 15 at the time of the offending (transcript, pages 28-29). The Applicant also did not accept full responsibility for commencing a relationship with the victim, stating that “I did not actively pursue the victim” and that “there are a situation [sic] where my victim has a way of persuading me to do something” (transcript, page 34). When asked directly whether he accepted that he commenced a relationship with the victim the Applicant replied, “yes. Yes and no” (transcript, page 35). He later gave evidence that the victim was the one who instigated the relationship (transcript, page 40). Subsequently, during cross-examination the Applicant stated that, “I would say that I instigated it [the relationship with the victim] and then she came on to me” (transcript, page 41).
The Applicant was also evasive about the circumstances and number of times he had sex with the victim (transcript, pages 42-46). The Applicant maintained that he only had sex with the victim on the six occasions he was convicted of. However, the sentencing judge stated that (T30, page 158):
… The offences of which you have been convicted were not the only occasions on which you had sexual intercourse with the complainant. There were quite a number of other occasions that you had sexual intercourse with her during the course of your relationship with her so the offences of which you have been convicted reflect the occasions which the complainant has a specific recollection of.
I cannot sentence you for offences of which you have not been convicted and I will not do so, however, the fact that the offences are representative of your conduct towards the complainant does mean that you couldn’t possibly claim or attempt to claim by way of mitigation that these offences of which you were convicted were isolated or reflected an aberration in the way that you otherwise treated the complainant during the time that you knew her.
In summary, the Applicant often avoided answering questions or tried to answer the questions in a light that would minimise his offending such as being evasive about his knowledge of the victim’s age, attributing some of the blame onto the victim, and denying that he had sex with the victim on occasions other than those he was convicted for. The evidence of the Applicant at the Tribunal hearing indicated that, as noted in the presentence report, the Applicant appeared to place the most emphasis on the detrimental impact that the offending had on his own family (transcript, page 118), rather than on the victim of his offending.
The Applicant has the support of his wife, children and family friends, which may act as a supportive factor to reduce the likelihood of his reoffending. The Applicant’s wife’s evidence at the Tribunal hearing indicated that she was aware of the Applicant’s offending, as was his son, although to a more limited extent. It is unclear from their letters of support, as to whether Mr and Mrs C are fully aware of the Applicant’s offending, other than generally referring to the Applicant having made a “mistake” (transcript, page 109-110). However, despite this support, as noted by counsel for the Respondent in closing submissions (transcript, page 114), at the time of the offending, the Applicant was a married father of two children who was attending church twice a week. During this time he Respondent argued that these relationships did not affect his offending in the past, which is indicative that they will not be protective in the future. In the Tribunal’s opinion, these relationships are prosocial and may act, to some extent, as a protective factor to reduce the likelihood of the Applicant reoffending, particularly in light of the Applicant’s appreciation of the impact of his offending on his family.
Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community. That likelihood may be lower than the “low risk category” which was determined by formal assessment prior to the Applicant completing the SOMP. However, there is no objective psychological assessment as to whether, and if so, how much, that likelihood has been reduced. The Tribunal concludes, based on the evidence before it, that the likelihood of reoffending is low to minimal.
Further, the principle set out in paragraph 6.3(4) of Direction No 79 is relevant:
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.
Even if the likelihood of the Applicant reoffending is low to minimal, applying paragraph 6.3(4) of Direction No 79, the Tribunal finds that the circumstances of the Applicant’s convictions (sexual offences against a young girl when she was 14 and 15 years of age) and the serious nature of the harm that can result to victims of this type of offending, means that even a low likelihood of reoffending in the future is unacceptable.
On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has a 15 year old biological daughter who came to Australia with her parents when she was three years old. She is an Australian citizen. Although the Applicant has been physically separated from his family for over four years due to being in prison, and now due to his voluntary relocation to the Philippines, he has maintained a close relationship with his daughter through frequent visits and daily phone calls whilst in prison, and currently through daily phone, messaging and Facetime (T57, page 566; transcript, page 88) (Direction No 79, paragraph 13.2(4)(a)).
The Applicant’s daughter is 15 years old, and so there are only three years remaining until she turns 18. Nevertheless, given their close relationship, which was evident from the evidence given by the Applicant, his wife, son and daughter, the Applicant is likely to be a positive role model for his daughter who relies on him for emotional support (Direction No 79, paragraph 13.2(4)(b)). For example, in a written statement (Exhibit A5), the Applicant’s daughter described her close relationship with her father:
There were also some things that I feel more comfortable talking about to my dad rather than my mum, because in the little time that I get to be with my mum, she’s tired and stressed from working so much to provide for us. The things I talk about with my dad are only ever through online. There are just some things that should be talked about in person, rather than through a computer screen.
The Applicant’s past conduct may have a negative impact on his daughter in the future (Direction No 79, paragraph 13.2(4)(c)) because, as a registered sex offender he cannot have unsupervised access to children under the age of 16 years. At the time of the Tribunal hearing, the Applicant’s daughter was not fully aware of his offending, and it is likely that when she learns the details of her father’s offending, it may have a negative emotional impact upon her.
As noted above, the Applicant has been maintaining regular contact with his daughter by messaging, telephone and FaceTime. However, the Tribunal accepts the comments of the Applicant’s daughter above that such means of communication are not an adequate substitute for the personal contact and support the Applicant would be able to give his daughter if he were to return to the family home (Direction No 79, paragraph 13.2(4)(d)).
The child’s mother is currently fulfilling a parenting role, and the evidence given by the Applicant and his children at the Tribunal role indicates that she is a good mother who provides good care to her children (Direction No 79, paragraph 13.2(4)(e)).
The Applicant’s daughter has expressed a strong wish for him to stay in Australia (Direction no. 79, paragraph 13.2(4)(f)). For example, in a written statement (Exhibit A5) she described her close relationship with her father and his role as a primary caregiver for her. She described her disappointment that her father has missed important events in her life such as her primary school graduation. In her statement, the Applicant’s daughter went on to state:
… I still have hope that he [the Applicant] will come back to us, providing the emotional support that this family needs. I truly miss my dad so much. I want to bring back those days and we would all sit around the table, eating together and talking about our days. Please give him a second chance to be with his family.
There is no evidence that the Applicant has abused or neglected his daughter in any way, and consequently Direction no. 79, paragraph 13.2(4)(g) is not relevant.
It is evident that the Applicant’s daughter has experienced emotional hardship as a result of her separation from her father. This is however, only indirectly due to his conduct. If the Applicant’s daughter later learns of the details of her father’s conduct, it may cause her emotional distress. However, other than the emotional hardship the Applicant’s daughter is experiencing as a result of her physical separation from her father, at the time of the Tribunal hearing, there was no evidence that the Applicant’s daughter has suffered or experienced any physical or emotional trauma, arising from his conduct (Direction No 79, paragraph 13.2(4)(h)).
On balance, the Tribunal finds that revocation of the cancellation decision is in the best interests of the Applicant’s daughter. This weighs in favour of revocation of the decision to cancel the Applicant’s Visa.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3(1) of Direction No 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(2) of Direction No 79 sets out the following principle:
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.
Further, paragraph 6.3(3) of Direction No 79 relevantly states:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 at [133]-[146] (Le), and subsequently in Nathanson and Minister for Home Affairs [2019] AATA 642 at [130]-[145] (Nathanson).
Although the decisions discussed by Member Burford in Le and Nathanson, discussed below, concerned Direction no. 65, they are equally applicable to Direction No 79. This is because there was no change to the wording of the paragraph concerning the expectations of the Australian community in Part A, B or C when Direction No 65 was updated to become Direction No 79, which commenced on 28 February 2019.
In Nathanson, Member Burford stated as follows:
130.In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
131.In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
132.The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296 states as follows:
[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
[65] … In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
133.Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17] also applied YNQY.

Member Burford further explained, at [134]-[136]:
134. The Tribunal notes that both Direction no. 79 and the relevant authorities on the application of Ministerial Directions to decisions under s 501 of the Act make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 79 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (paragraph 8(3) of Direction no. 79). While Direction no. 79 states that a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.
135. The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 79 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement in the principle expressed with respect to ‘serious crimes’ in paragraphs 6.3(2) and more generally in 13.3(1) of Direction no. 79. Applying Uelese, paragraph 13.3(1) of Direction no. 79 directs that the Tribunal should have due regard to the Government’s views in this respect.
136. In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.
(Emphasis in original.)
Member Burford, at [138]-[145], further analysed how the Tribunal has applied the decision of Mortimer J in YNQY as follows:
138. The Tribunal has considered the effect of Mortimer J’s judgment in a number of decisions. In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted.
139. Alternatively, the Tribunal has considered that her Honour’s comments, in particular the operation of the ‘kind of deeming provision’ (YNQY at [76] – see [130] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where ‘the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa’.
140. In the case of Margach and Minister for Home Affairs [2019] AATA 353 (published 5 March 2019) Deputy President Forgie, having quoted [76] and [77] of Mortimer J’s judgment in YNQY, stated:
[86]I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.
141. Deputy President Forgie goes on to state (at [86]):
Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1)…
142. Further, she goes on to highlight that in applying the principles the Tribunal must have regard to the evidence (at [86]):
Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.
143. Member Eteuati, in Doan and Minister for Home Affairs [2019] AATA 169 at [153] to [154], stated the principles which emerge from the case law as follows:
153.… First, the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of the community.
154.Secondly, the government’s views in relation to community expectations are to be found in Direction 65 itself. It is open to the Minister to make a statement of the government’s views as to the expectations of the Australian community as it has in direction 65 for the Tribunal to act on that statement.
Member Eteuati goes on to note, at [155]:
In order to ascertain the government’s views on community expectations one must consider the direction closely.
144. The Tribunal broadly agrees with this approach. The Tribunal notes that with respect to determining whether ‘the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa’ (the third sentence of paragraph 13.3(1) of Direction 79) close consideration of the direction indicates that where a non-citizen has committed a ‘serious crime’ the expectation is that their visa will be cancelled. This is the import of paragraph 6.3(2) of Direction no. 79 which was cited in the passage of Uelese to which Mortimer J was referring in YNQY. Further, Direction no. 79 provides that particular crimes or those committed against particular victims will be regarded as ‘serious’ or are to be ‘viewed very seriously’. In circumstances where the relevant non-citizen has committed a ‘serious crime’ the government’s view on the expectation of the community has been expressed to be that they expect the non-citizen’s visa to be cancelled.
145. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
(Footnotes omitted.)
Two recent decisions were handed down by the Federal Court which adopted slightly different approaches to the interpretation of this primary consideration. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR).
In DKXY Griffiths J stated that it was not “inevitable” that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]). His Honour explained, at [31], that:
Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction… (Emphasis in original.)
In summary, Griffith J was of the view that: “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant’s circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community’s expectations would weigh against revocation.
On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach, which appears to be more consistent with Mortimer J’s approach in YNQY:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
Although Perry J refers to the statement of community expectations in the Direction to be a “norm” to be applied in “most cases”, it is not clear, however, when circumstances may justify departure from that norm.
However, regardless of whether the Tribunal takes a strict interpretation of the expectations of the Australian community such as was taken by Perry J in FYBR or the broader approach of Griffith J in DKXY, the Tribunal finds that the Australian community would expect that the cancellation of the Applicant’s Visa should not be revoked.
The Applicant has committed sexual offences against a vulnerable member of the community (when she was 14 and 15 years old) when he was in a position of authority as her manager. These seven offences were serious offences, as discussed in detail above at [41]-[62] in relation to the first primary consideration. In this regard, the Tribunal notes that the principle in paragraph 6.3(2) of Direction No 79 is applicable. This principle is that: “The Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”. Further, the principle in 6.3(3) of Direction No 79 is also applicable to the expectations of the Australian community in the Applicant’s circumstances. It states, in effect, that the Australian community would expect that the Applicant be denied the privilege of staying in Australia because he has committed serious crimes, being sexual offences against a child.
Paragraph 13.3(1) of Direction No 79 states the government’s view that the Australian community expects non-citizens to obey Australian laws whilst in Australia. Further, paragraph 6.3(5) of Direction No 79 states that “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 for only a short period of time”. This principle is applicable to the Applicant’s situation because he arrived in Australia as a 29 year old, and committed the offences in approximately the third year he was in Australia when he was 32 years of age. In the Applicant’s circumstances, the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would weigh against the revocation of the cancellation decision.
In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant’s offending and the unacceptable risk of harm if he were to reoffend in a similar manner (taking into account that his risk of reoffending is likely to be low to minimal) as well as the best interests of the Applicant’s daughter. In determining weight, the Tribunal has balanced the other considerations which weigh in the Applicant’s favour, and which are discussed below, particularly the strength, nature and duration of the Applicant’s ties to Australia and (to a lesser extent because he has voluntarily returned there) the hardship the Applicant faces now that he has returned to the Philippines.
The Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant’s Visa should not be revoked. The Tribunal finds that this consideration weighs strongly against the revocation of the decision to cancel the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction No 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
As noted elsewhere in these reasons, the Applicant arrived in Australia as an adult of 29 years of age. Consequently, he has resided in Australia for approximately 10 years and 7 months of his adult years, and was living in Australia for approximately seven years prior to his incarceration. However, he committed the offences soon after arriving in Australia as a 32 year old - specifically, within three years of coming to Australia.
The Applicant and his wife married in 1999. They remain married and the Applicant will return to live with his wife if he is able to return to the Australian community. The Applicant and his wife have a 19 year old son and a 15 year old daughter. The Applicant’s wife, son and daughter became Australian citizens in 2014.
The Applicant does not have any other family in Australia. He has been physically separated from his family for over four years due to being in prison, and now due to his voluntary relocation to the Philippines. In prison the Applicant’s wife and children visited him regularly, and he had daily telephone contact with them, as well as sending and receiving mail (T57, page 566). Now that he has returned to the Philippines, the Applicant currently speaks to his wife and children daily by phone, messaging and facetime (transcript, pages 77-80 and 88). This frequent contact despite physical separation is indicative of their close family relationship.
As indicated by the oral evidence each of them gave at the Tribunal hearing, and in their various written statements which are before the Tribunal, the Applicant’s wife and children would suffer emotional hardship if the Applicant was not able to return to the Australian community. A statement from the Applicant’s wife indicated that his son was “struggling with his [father’s] absence” as well as experiencing some behavioural changes. The Applicant’s wife further stated that his 15 year old daughter was struggling with separation anxiety, does not like to be alone, and is dependent on her father’s guidance and care, spending much of her time after school speaking to him on Skype (Exhibit A7). In a separate statement (Exhibit A6), the Applicant’s son wrote of the impact on the family of the absence of their father:
…the impact that his absence has had on our family has been substantial. My mother has definitely taken the brunt of this impact. Not only has she had to work two jobs, sometimes barely getting any sleep, but she has descended into a habit that I never thought she would be consumed by as a result of her stress. In a few weeks after my father was taken away, my mother started smoking. She would hide her dvice from my sister and I by going to the toilet, or doing it in the middle of the night, but the unmistakable stench of tobacco would never fail to send pangs of pain and anger through me. It’s a smell that brings to mind images of a broken family, a home torn apart by one man’s decision. It’s a smell to detest. Nowadays, she doesn’t bother to hide it anymore.
Considering this, my mother has shown such incredible resilience. But she needs support that we as her children simply cannot provide. She needs the husband she loves. The support that my father will contribute will be so much help if he is granted his return. My mother may be strong, but she can only take so much stress. My mother, my sister and I try to find happiness in our daily activities, but deep down there is a hole that cannot be filled in our hearts. We miss our dad. We need him in our lives. I have seen how much my mother struggles to work and to find silver linings is in our situation. But I don’t want her to come home tired at almost midnight almost every single night just to keep up with our bills for the week. I don’t want her to miss out on life because of our broken family. I don’t want her to grow old lonely.
The Tribunal accepts the evidence of the Applicant’s wife and son who the Tribunal found to be credible witnesses at the Tribunal hearing. As well as the evidence of the emotional hardship that will be experienced by the Applicant’s wife and children if he is unable to return to Australia, as indicated by the above statement, the family is also experiencing financial hardship. The Applicant’s wife has taken on extra shifts at work to support herself and the children and is working very long hours which is physically and emotionally exhausting for her. The Applicant’s son has taken on additional shifts at work to help his mother financially. As a result, he feels that his University studies have suffered and that he has not been able to reach his full potential (transcript, page 78).

Although the Applicant’s wife and children were born in the Philippines and could return there, as well as his wife and children being able to speak the Tagalog dialect, his wife gave evidence that they would not relocate to the Philippines because it would be difficult to obtain employment, and she believed that her children’s future would be much better in Australia (transcript, page 60-61).
The Applicant also has substantial support from prosocial family and friends in the Australian community as indicated by the letters of support before the Tribunal (see, for example, T35, pages 256-258 and 322-332; A8 and A9). This further indicates his ties to the Australian community.
The Applicant has made positive contributions to the community by working and paying taxes whilst he has resided in Australia until the time of his incarceration. However, this contribution must be tempered by the fact that it was at his workplace that he met, and was able to form a relationship with the victim as her Manager.
The Tribunal finds that the Applicant does have strong links to the Australian community, particularly due to his wife and children being in Australia. However, the weight that can be given to this consideration is reduced by the fact that the Applicant started offending within approximately 3 years of his arrival in Australia. Nevertheless, the Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant’s Visa.
Impact on Australian business interests
It is also not relevant to consider whether a decision not to revoke the cancellation of the Applicant’s Visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction No 79). The Applicant is not involved in the delivery of any major projects, or the delivery of an important service in Australia.
Impact on victims
There is no evidence before the Tribunal, or information available, about the impact of a decision not to revoke the mandatory cancellation of the Applicant’s Visa on the victim of the Applicant’s offending or the family members of the victim (paragraph 14.4(1) of Direction No 79).
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is now 41 years of age. He voluntarily returned to the Philippines approximately 13 months ago, on 18 April 2018.
His evidence at the Tribunal hearing indicated that he is missing his wife and children, and that his separation from them, and concern for their wellbeing, and concern about maintaining a relationship with them, is likely to cause him some emotional distress (see for example, transcript, page 118).
A submission from the Applicant’s former legal representatives (Exhibit A2, [165]) states that the Applicant “fears a severe decline in his mental health and that of his family members if he were unable to spend quality time with them on a regular basis”. The Applicant’s wife also stated that, “I am very worried about my husband’s emotional and physical well-being. He has no familial support in the Philippines and struggles with the effects of his isolation” (Exhibit A7). There is, however, no evidence before the Tribunal of a formal mental health diagnosis, and there is no evidence before the Tribunal to suggest that the Applicant would not have the same access to social and economic support as other citizens of the Philippines. The Tribunal does acknowledge, as stated in the paragraph above, that his separation from his wife and children are likely to cause the Applicant emotional distress.
There are no cultural barriers to the Applicant living in the Philippines because he lived there until he was 29 years of age, and speaks the language. Additionally, the Applicant gave evidence at the Tribunal hearing that he has been able to reside at a property in the Philippines owned by his parents. His evidence under cross examination was that he has minimal expenses, does not pay any rent and that he has been able to obtain work (transcript, page 32). His aunt and cousin reside with him. He gave evidence that his parents reside in the United States, and provide him with financial assistance, although not regularly (transcript, pages 30-31).
In summary, the main hardship that the Applicant is experiencing due to returning to the Philippines is the distress caused by the separation from his wife and children. There are no cultural or financial impediments to removal. The Tribunal notes that the Applicant has been residing in the Philippines for approximately 14 months now, that he has stable accommodation and has been able to find employment. He is also residing with his aunt and cousin who may be able to provide some level of emotional support to him.
On balance, the Tribunal finds that any impediments experienced by the Applicant are not insurmountable and that this consideration does not weigh in favour of the revocation of the cancellation decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)The nature and seriousness of the Applicant’s conduct weighs strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (paragraphs 13.1 and 13.1.1 of Direction No 79).
(b)The risk to the Australian community should the Applicant commit further offences also weighs in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (paragraph 13.1.2 of Direction No 79).
(c)Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction No 79), weighs strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa.
With respect to the remaining primary considerations, the Tribunal finds that:
(a)the best interests of the Applicant’s 15 year old daughter (paragraph 13.2 of Direction No 79) weigh in favour of the revocation of the cancellation decision; and
(b)The expectations of the Australian community (paragraph 13.3 of Direction No 79) weigh strongly in favour of the Tribunal refusing to revoke the cancellation decision.
In relation to the other considerations, the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weigh in favour of the revocation of the cancellation decision. The Tribunal has also found that there are limited impediments to removal (paragraph 14.5(1) of Direction No 79), noting that the Applicant has voluntarily relocated to the Philippines, and as a consequence, this other consideration did not weigh in favour of the revocation of the cancellation decision.
On balance, the Tribunal is of the opinion that the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh the primary consideration of the best interests of the child, and the other considerations of the Applicant’s strength, nature and duration of ties, and the extent of impediments if removed.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction No 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

11 May 2018
not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 151 (one hundred and fifty - one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

...............................[sgd]........................................
Administrative Assistant Legal
Dated: 13 June 2019

Date of hearing:

21 January 2019

Applicant:

Representative for the Respondent:

Self-represented

Ms Elle Tattersall

Solicitors for the Respondent:

Sparke Helmore Lawyers