ZJXK and Minister for Home Affairs (Migration)

[2019] AATA 4682

ZJXK and Minister for Home Affairs (Migration) [2019] AATA 4682 (22 October 2019)

Division:GENERAL DIVISION

File Number(s):      2019/4954

Re:ZJXK

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:22 October 2019

Date of written reasons:        6 November 2019

Place:Sydney

At the conclusion of the hearing of this matter on 22 October 2019, the Tribunal affirmed the decision under review.

...........................[SGD].............................................

Senior Member D. J. Morris

CATCHWORDS

MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – delegate decides not to revoke mandatory cancellation – consideration of Ministerial Direction No. 79 – primary considerations – other considerations – acquittal of certain offences – certain uncharged matters – crimes against women – whether Tribunal can consider matters where Court has acquitted – decision affirmed – oral decision – written reasons provided

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35, 43, 62

Crimes Act 1900 (ACT), s 53
Migration Act 1958 (Cth), ss 499, 501, 501CA

Migration Regulations 1994 (Cth), reg 2.52

CASES

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Lam and Minister for Immigration [1999] AATA 56
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1982) 5 ALD 135; 102 ALR 19
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
R v GG [2017] ACTSC 137
Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22

Woolmington v Director of Public Prosecutions [1935] AC 462

SECONDARY MATERIALS

Migration Act 1958 – Direction made under s 499 – Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 22 December 2014/commenced 23 December 2014)

Migration Act 1958 – Direction made under s 499 – Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 20 December 2018/commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

6 November 2019

1. In this matter, owing to the nature of the offences of which the Applicant has been convicted, the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) prohibiting the publication of his name or information that would tend to identify him. The anonym assigned to the Applicant is ‘ZJXK’ and certain other persons referred to will be de-identified.

2. ZJXK is aged 58 and is a citizen of New Zealand. He was born in Samoa. He arrived in Australia to settle in 2011, and on arrival was granted a Class TY Subclass 444 Special Category (Temporary) visa (the visa). The visa is one granted to citizens of New Zealand permitting them to reside indefinitely in Australia, but it does not of itself confer permanent residency. The visa was cancelled on 12 February 2018 under section 501(3A) of the Migration Act1958 (Cth) (the Act). On 7 August 2019 a delegate of the Respondent decided not to revoke the mandatory cancellation of ZJXK’s visa.

3. The Applicant was notified of the delegate’s decision on 8 August 2019 and advised that he had the right to apply to the Tribunal to review the delegate’s decision. ZJXK did so and the hearing took place on 18, 21 and 22 October 2019 in Sydney. At the conclusion of the hearing the Tribunal, after a short adjournment, affirmed the decision under review and advised parties that written reasons would be provided as soon as practicable. Subsequently, the advocate for the Applicant made an inquiry about written reasons, which I accept as a request under section 43(2A) of the AAT Act.

4. ZJXK was represented at the hearing by Ms Lieta Sauiluma-Duggan, a Samoan community advocate. She made submissions on his behalf. ZJXK gave evidence and was cross-examined by Ms Elle Tattersall of Sparke Helmore, representing the Minister for Home Affairs. A number of witnesses called by the Applicant gave evidence in person and the Tribunal gave leave under section 33A of the AAT Act for a number of other witnesses to give evidence by telephone. The Tribunal was assisted by an interpreter in the Samoan language.

5. The Respondent tendered a volume of documents (‘G’ documents) relating to the decision under review.  The Respondent also submitted a volume described as ‘tender bundle’ (TB documents) which included summonsed documents and other papers the Minister considered relevant.  The Tribunal noted that within the TB documents were references to certain uncharged acts and stated that, while it would admit the two volumes, where alleged conduct did not proceed to the placing of criminal charges, that fact would affect the weight the Tribunal gave to the material.  The Respondent also provided to the Tribunal and the Applicant a written Statement of Facts, Issues and Contentions. 

6. A redacted list of the exhibits taken into evidence is at the end of these reasons.

   Legislative framework

7. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Respondent did not dispute that ZJXK made representations within the prescribed period.

8. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

   7For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; …

9. The Tribunal had before it (G3, p 22) a Criminal History Check prepared by the Australian Criminal Intelligence Commission, dated 26 March 2019.  This document recorded that on 18 May 2017 ZJXK appeared in the Supreme Court of the Australian Capital Territory and was convicted of the following offences under the Crimes Act 1900 (ACT) and sentenced as described: the offence of sexual assault in the third degree/assaultee, with a sentence of 2 years’ imprisonment to be served as full-time detention commencing on 8 May 2017 and concluding on 7 May 2019 (non-parole period of 12 months); the offence of assault occasioning actual bodily harm (ABH), to be released on entering a good behaviour order for three years commencing on 26 May 2017; the offence of destroy/damage property not exceeding $5,000, to be released on entering a good behaviour order for three years commencing 26 May 2017.

10. Section 501CA of the Act relevantly provides that:

    1This 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.

    …

    4The 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.

11. If the Tribunal finds that ZJXK fails the character test, the sole issue before the Tribunal is then whether there is another reason why the original decision should be revoked.  In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, North ACJ stated, at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

12. On the evidence before it the Tribunal was satisfied that ZJXK has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. On the facts of the convictions made against him and the sentences imposed on 18 May 2017 (G4, p 33), the Tribunal found that the Applicant fails the character test under section 501(3A)(a)(i) of the Act. ZJXK did not dispute this. The Tribunal then went on to consider whether there is another reason why the mandatory cancellation of the visa should be revoked.

    The Ministerial Direction

13. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act.  The delegate who refused to revoke the cancellation of ZJXK’s visa consulted Direction No. 79 (the Direction), made under section 499.  The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.  Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (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.

14. Relevantly, the Direction includes the following principles at paragraph 6.3:

    (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.

15. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’  The primary considerations in Part C are set out in paragraph 13(2) of the Direction.  They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’

16. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’  The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).  The Tribunal considered each of the primary considerations and, as relevant, the other considerations.

    Background to the Applicant’s offending

17. At G4, p 24-33 was the sentencing remarks of Mossop J on 18 May 2017 in the Supreme Court of the Australian Capital Territory (ACT) in R v GG [2017] ACTSC 137. The Court assigned the anonym ‘GG’ to the Applicant in those proceedings. His Honour said:

    The offender is the cousin of the victim’s mother.  In mid-2011, the victim moved in with the offender and his wife.  She was about to or had just turned 19 years old.  She had a young child who was at that time, two or three months old.  The victim had a somewhat disrupted childhood.  Her evidence was that she had been adopted when very young by her aunt and uncle and lived with them in New Zealand until they moved back to Samoa.  She then lived with her biological mother and father.  Her mother was the victim of domestic violence and was ultimately murdered by her father.  She moved to live with her mother’s cousin in Auckland.  After the birth of her child she moved to live with the offender and his wife.

    The offender and his family took her in to help look after her baby boy.  The offender’s wife had four teenage sons from a previous marriage.  The offender and his wife also had an 11-year-old daughter.  They resided in New Zealand.  In 2011 the offender and his wife decided to move the family to Australia.  Before the whole family moved, the offender travelled to Australia to set things up before the rest of the family joined him.  He decided that his stepson QG and the victim would go with him, leaving the victim’s son behind with the extended family.  The victim did not want to travel to Australia but the relationship with the offender was such that she had no choice but to go.  She found him scary.  Her child remained in New Zealand in the care of the offender’s wife.  In Australia they stayed with two Pastors of the Samoan Independent Seventh Day Adventist Church at a house in Weetangera.

    The offender was very controlling towards the victim.  He told her what to do and how to act.  She was required to stay at home and do household tasks.  He told her how to dress.  She was prevented from looking for or securing a job.  She was prohibited from talking to any males including those who she met at the church which they attended.  The offender would even get angry if she spent too long talking to women at the church.  If he was unhappy with how she behaved, he would get angry and slap her across the face.  I note the offender’s controlling behaviour was not contested at the trial, indeed it was part of the offender’s case.  In the house at Weetangera, the victim shared a room with another woman, VU.

    Victim’s evidence

    The victim’s evidence was that the sexual assault took place when the offender and his son were at work.  The offender had established a tree lopping business.  The other people in the house had left to take the elder of the pastors who lived in the house, who was sick and elderly, to hospital.  It was around late morning or early afternoon.  She was hanging out the washing.  The offender came around the side of the house and through the large fence.  She was a little frightened because it was not usual for him to come home at that time of the day.  He said that they needed to talk inside.  He said that she had been behaving weirdly and not listening.  He said that she “…had to have sex with him.”  Her reaction, as she described it, was “freaking out and scared” and she said “I don’t want to.”  He told her that she had to remove her clothes. She refused, so he hit her with his right hand across her face.  The victim said she was taking her time to undress and the offender was telling her to hurry up.  She took off her T-shirt and jeans.  He was standing and continued to shout at her to hurry up.  She was hit a second time when she was on the bed with her clothes off.  He said to her “Look what I have done.  I am going to do this because you don’t listen to me.”  He took his clothes off while she was sitting on the bed and lay on top of her.  She struggled, but if she didn’t keep still, he hit her.  She couldn’t recall how many times she was hit but more than once.  He wanted her to kiss him but she refused and turned her head.  She continued to struggle but he was too strong.  She described him holding her arms down with his legs sitting on her.  While she would have been able to cry out, she was scared to do so.  She couldn’t recall how long sex went on but it stopped when VU arrived home in her car, which they both heard.  He grabbed his clothes and went out the back door.  She said that he said to her that she had to “…keep quiet otherwise [she] would find out what he is capable of.”  She said that he indicated that the threat was to kill her.  She went straight to have a shower when VU arrived.  She was left with a lovebite on her neck which she observed when in the shower.

    The bed was a single bed.  Afterwards the sheets and pillows were left everywhere on the floor.

    She told VU everything that had happened.  She showed her the mark on her neck and was visibly shaking when she was telling her.  She told VU that the accused had forced her to have sex.  VU asked “Are you sure?”  She showed her the mark on her neck and the room and VU just stood there.

    Afterwards, the offender acted normally, like nothing had happened.

    Evidence was also given by VU, the woman with whom the victim shared a bedroom and who arrived home at the end of the incident.  She gave evidence through an interpreter.  She said that the victim made a complaint to her as soon as she got home.  The complaint was that the offender “forced her”.  This was explained as the offender was “trying to have sex with her”.  She was asked whether the victim had said in any detail if he actually did have sex with her.  VU said “not really at the time”.  In cross examination it was suggested to her that in that conversation she didn’t say whether the offender and the complainant had sex.  VU agreed with that proposition.  VU’s evidence was credible.

    TQ, the wife of the younger pastor who lived in the house, also gave evidence.  While her evidence did shed some light on the meaning of “forced” in Samoan, she did not give evidence of any complaint relating to this incident as opposed to other incidents led as context evidence.  Her evidence was that the word translated as “forced” meant forced her to kiss him and touch his private parts.

    The offender did not give evidence.

    Consistency of the verdict

    In the trial he was found guilty on the charge of assault with intent to engage in sexual intercourse.  He was found not guilty of the charge of sexual intercourse without consent.  He was found guilty of the charge of assault occasioning actual bodily harm relating to hitting the victim.

    The explanation for the difference between the verdict on the first count and the second count must be that the jury accepted the victim’s evidence but could not be satisfied beyond reasonable doubt that what had occurred was sexual intercourse.  That was consistent with the examination in chief of VU who had given evidence that she had been told that the offender tried to have sex with her.  In cross examination it was put to her that the victim had not said that the offender had had sex with her and she agreed.  The explanation for the difference between the verdict on the first count and the second count must be that the jury accepted the victim’s evidence, but in the light of the absence of a specific complaint of actual intercourse made to VU, could not be satisfied beyond reasonable doubt that what had occurred was sexual intercourse, in the sense of penile penetration.  Thus the jury’s verdict is consistent with the sexual assault in the third degree having occurred and that there was an attempt to have sexual intercourse but, notwithstanding the evidence of the complainant, the existence of a reasonable doubt as to whether or not that intercourse actually occurred.

    Conclusion

    I accept the evidence of the complainant in regard to the assault.  I found her evidence to be very convincing, coherent, not overstated, consistent with the other evidence in the case, and given in an unaffected manner.  I am satisfied beyond reasonable doubt that the incident occurred as described by the victim up until the victim was naked on the bed.  Specifically I am satisfied beyond reasonable doubt that she was struck twice by the offender with the intent of engaging in sexual intercourse with her.  In the light of the jury’s verdict I must proceed on the basis that there was no actual intercourse in the sense of penetration of the victim’s genitalia.  However I am satisfied in the light of the evidence that there was an intention and attempt to engage in sexual intercourse.  It is not possible to determine why the intention was not carried through to actual penetration.  The interaction was interrupted when VU arrived home in a car…

1. The sentencing Judge then went on to discuss the circumstances relating to ZJXK’s conviction of the offence of assault occasioning actual bodily harm.  This related to a different day from the offending described above when the victim told ZJXK she wanted to go back to New Zealand.  The Judge said: ‘The offender became angry and hit her with an open palm on the face and ear.  The offender did not challenge this evidence.’ (G4, p 27). 

2. In terms of the third offence of property damage, His Honour stated this related to the victim’s mobile telephone (G4, p 28):

   …The house did not have any Wi-Fi and the phone was used for the offender to call the victim.  One day in the house, whilst the offender and the victim were talking together, the offender said that the victim was always on her phone.  He asked her to give him the phone and then broke it by standing on it.  The phone was in pieces and did not work as a result.  The offender disposed of it in the bin in his room.  The victim did not see the phone again.  Sometime later he gave her a replacement phone.  The condition on the use of that phone was that she couldn’t call anyone other than him.  The incident with the phone was consistent with the course of conduct by the offender seeking to control and isolate the victim.

   Evidence of ZJXK

3. ZJXK gave evidence that he was born in Samoa as one of ten children.  One sibling lives in Samoa, five live in New Zealand and four, including him, live in Australia.  He said he moved from Samoa to New Zealand in 1987 and lived in New Zealand until 2011.  He said he established himself in New Zealand and became a New Zealand citizen.  ZJXK said he had an aunt in New Zealand who had three children and a number of nieces and nephews.  In his Personal Circumstances Form submitted to the Department of Home Affairs in relation to the visa cancellation, ZJXK stated (G12, p 58) that he had 24 nieces and nephews in New Zealand and 14 cousins, eight of whom live in New Zealand.

4. ZJXK said he met his wife in New Zealand.  She is a New Zealand citizen.  When they married his wife had three young sons by a former partner.  ZJXK and his wife have since together had a son and a daughter.

5. In 2010 or 2011 GH, ZJXK’s cousin’s daughter, and the victim of his offending, came to live with ZJXK and his wife at their house in New Zealand.  GH had come to New Zealand from Samoa.  In Samoa GH had become pregnant to a young man who had subsequently returned to the USA.  In March 2011 GH had the baby in New Zealand and soon after she had come to live with ZJXK and his wife.  The baby was a boy, GD.  ZJXK and his wife commenced an adoption process for GD.  The adoption papers were before the Tribunal (G20, p 73).  These papers included an application for an Adoption Order and a Consent to the Order, both signed by GH; a joint affidavit sworn by ZJXK and his wife; an affidavit by GH; and an information sheet.  While there was evidence that lawyers had filed the papers with the Manukau Family Court in New Zealand in October 2011, there was conflicting evidence about whether the formal adoption process had been completed.  ZJXK in his evidence said that GD had not been adopted, but that he and his wife had ‘rescued’ the child from his mother because she didn’t want him.  It is not necessary in this review to make a finding on this matter, suffice to say that the Tribunal accepts that GD lives with the Applicant and his wife and is treated by them as their adopted son.  The Tribunal finds he is in the category of persons relevant to paragraph 13.2 of the Direction.

6. ZJXK said he came to Australia in December 2011 with a plan to settle.  At that time, ZJXK travelled only with GH and one of his stepsons, GP.  The rest of the family remained in New Zealand.   In Canberra, they stayed initially at the residence of a church pastor.  Sometime later ZJXK and GH returned to New Zealand and, in April 2012, ZJXK, his wife, GD, GH and most of the rest of the immediate family came to Australia to live.  The family continued to stay at the church pastor’s residence for, ZJXK estimated, about one or two months, before they moved into their own house.

7. ZJXK said that about a week or two weeks after they had come to Australia (the second time), GH moved out of the residence.

8. ZJXK gave extensive evidence about his approach to discipline in the household.  He maintained that he had occasionally inflicted corporal punishment on all his children, mainly with the open hand but sometimes using a stick from the garden, around the legs, ‘to make it sting’.  He said that he generally only did this when they had been naughty or had sworn or spoken back to teachers; generally, ZJXK said, he merely raised his voice if he needed to discipline his children.

9. Ms Tattersall took ZJXK through the judge’s sentencing remarks where he outlined the circumstances of the offending for which ZJXK was convicted.  ZJXK responded that the events ‘did not happen.’

10. The Tribunal asked ZJXK directly whether he did not agree to parts of what the judge said, or all of it.  ZJXK said he disagreed with all of it.  He said he did not agree that he had come home on the day in question.  He said he did not agree that he struck GH across the face.  He said that he did not agree that he told GH to take off her clothes.  ZJXK said he did not agree that there was any intimate act between him and GH.   Further, ZJXK said he did not agree with the facts in relation to the second offence of assault occasioning actual bodily harm (ABH). 

11. In terms of the damage to the mobile telephone, which related to the third offence, ZJXK said he did not accept the circumstances as stated by the Judge.  He said what happened was that he collided with GH in a doorway causing her to drop her mobile phone and, as he felt partly responsible for it, he bought her a new phone.

12. ZJXK said he had legal representation at the trial and had been told he could give evidence but chose not to.

13. Ms Tattersall put to ZJXK other allegations made by GH relating to sexual intercourse without consent and threats, which did not lead to charges. The Tribunal reminded the Applicant of the provisions of section 62(4) of the AAT Act that he did not have to answer a question if the answer may tend to incriminate him. ZJXK said he was ‘in the dark’ about these allegations and made various statements disputing the facts alleged. He said that his and GH’s relationship had become a ‘bit strained’ at this time.

14. In answer to questions from the Tribunal, ZJXK said: ‘I noticed the girl [GH] was getting disobedient.  This was not our house; it was the priest’s house.  After witnessing this kind of behaviour I rang my wife in New Zealand and said I wasn’t happy with GH.  I told my wife I was going to bring GH back to New Zealand and we were going to neglect [sic] her there – that was the word I used.  I was angry with her because we were living in another family’s house.  When GH and I went back to New Zealand my wife understood the situation in regard to GH and I coming back.  I told GH to go and live with her family.  She cried and apologised.  I told her I didn’t want to put up with her inappropriate behaviour.  GH went into a lengthy apology.  My wife made the decision – she still loved her – that’s why GH returned to Australia.  We came back to Australia.  Back here at church I became unhappy with GH’s behaviour.  One Sunday morning GH was sleeping with my wife in the same bed and I told her when I came back from church I didn’t want to see her in the same house.  That was the last time I set eyes on GH.’

15. The Respondent then asked ZJXK whether it was true that GH was not the only person who has made allegations of rape against him.  He agreed.  The Respondent then put to ZJXK that he was charged in relation to allegations that he had raped his daughter, GV, but was not convicted; that these charges had proceeded to trial but ZJXK was found not guilty.  ZJXK agreed with these facts.

16. ZJXK said that the allegations made against him by GV were very serious and included three or four sexual assaults a day over a long period since the family came from New Zealand to Australia.  He said: ‘As for me, I will drink it – the allegation – because this daughter of mine was born premature.  She has already apologised to me.  I can’t reiterate what she said.  When I was interviewed by the police, I agreed [with the allegations] because at the time I just wanted to die.  So then I was put into custody.’

17. ZJXK said he was not initially legally represented but then a lawyer came to the prison and asked if he agreed to the charges.  He responded ‘whatever was going to be the simplest way, I would agree to those things’.  ZJXK then said his daughter had been taken to hospital and a medical report stated that ‘nothing had happened because the hymen was still intact’.  ZJXK said that he did not read the medical report because it was in English.  The Respondent did not have a copy of the medical report.  The Tribunal notes that ZJXK entered pleas of not guilty to all charges at both trials.

18. ZJXK conceded that he had been charged with nine counts relating to incest of a person under 16, one count of incest, four counts of indecency, and one count of common assault.

19. ZJXK said he had two trials at the Supreme Court of the ACT.  He said the first related to the charges brought in relation to allegations made by GV.  He was acquitted of all those charges.  ZJXK said the next trial, ‘about a week later’, related to the charges brought in relation to the matters alleged by GH, which led to the convictions, outlined above.  ZJXK said he thought each trial lasted about one week.  He said his daughter gave evidence at the first trial, and he maintains that her evidence was ‘untrue’.

20. The Respondent asked ZJXK why he thought his daughter would have put herself through giving evidence and a one week hearing.  ZJXK said he did not know, but he suspected that sometimes his daughter wanted to go to a girlfriend’s house and that ‘in the Samoan culture, girls are sequestered; maybe when older than 18 they get some freedom, but they need to be protected.’

21. ZJXK agreed that after she made allegations against her father, his daughter was taken into foster care and court orders were made that she did not return home.  He said that one of the conditions of the orders made was that his daughter should not communicate with him, but she occasionally would ring and ask to speak to him, and they would talk on the phone.  ZJXK said that his daughter visited him when he was in prison.

22. ZJXK was taken through some instances relating to his conduct in prison and in immigration detention.  He was taken to a report (TB, p 125) that he hit a cellmate with a can of soft drink, which he disputed.  He was taken to a report (TB, p 125) that he hit another inmate with a tennis racquet, the facts of which he disputed.  ZJXK was then taken to a report of an incident in a detention centre on 10 March 2019, the details of which he did not entirely accept.

23. ZJXK was asked whether he had engaged in any rehabilitation courses while in prison.  He said there were programmes but his main problem with attending the courses was his lack of English.  He said he requested to learn English in prison, but that opportunity was never offered.  ZJXK said that at the detention centre he did attend courses, but he found them very hard to understand.

24. ZJXK was asked whether he participated in an Adult Sex Offender Programme when in prison.  He said he never attended any part of the programme because he was unaware of it but ‘if they had a programme, I would have attended it.’  The Tribunal directly asked the Applicant whether he regarded himself as a sex offender.  His response was ‘if that’s the way you see it, I don’t have any argument with it.’  He said he continued to deny the offences of which he was convicted.

25. The Tribunal made clear to the Applicant that in reviewing the decision not to restore his visa, it was not open to the Tribunal to impugn a sentence imposed by a Court but that it was permissible, without undermining the basis of a conviction, for the Tribunal to examine the circumstances that surrounded the offending.  ZJXK said he understood that.  The Tribunal then asked ZJXK directly whether, having had time to reflect on the evidence he gave at the beginning of the hearing about the circumstances of his convictions as set out by Mossop J, whether he wanted to say anything more or change his evidence.  ZJXK said ‘I maintain that statement.’

26. Ms Tattersall referred to statements of remorse in ZJXK’s written statements and asked what he was sorry or remorseful for.  ZJXK said he did not blame GH or his daughter but that he blamed himself for ‘what has caused these thoughts inside the children’.  He said: ‘When I say I am remorseful what I mean is that I’m sorry because of the future of my family – I am prepared to carry the wrong.’

27. The Tribunal asked ZJXK about his relationship with GD.  He said he was very close to GD and that GD had never missed a visit to the prison in Canberra, and had visited him in detention in Sydney. 

28. ZJXK said he did not know whether he was a citizen of Samoa.  He said that he had a Samoan passport in the past, but not for some time.

29. In response to questions from his advocate, ZJXK said that his wife had a health condition and had been advised by her doctors to be careful with undertaking certain chores or heavy duties.  As a result, ZJXK said he did most of the laundry and lifting of heavier grocery items.  He said his wife could not stand for long periods of time and had been ‘banned’ from driving a car on medical advice.  He said that since he has been in prison and detention, his children have organised a paid cleaner to help out his wife in the home.  In answer to a question from the Tribunal, ZJXK said he had not applied for or received carer payment or carer allowance in New Zealand or Australia in relation to his wife’s medical conditions.

    Evidence of GV

30. ZJXK’s daughter, GV, who is now aged 20, gave evidence by telephone that she was born in New Zealand, came to Australia in April 2012 with her parents and moved out of her parent’s home in 2016.  She said she visits her mother at the house.  She said her father hit her ‘weekly’ when she got into trouble at school or did not do her chores.

31. Ms Tattersall asked GV whether GH made allegations against her father after GH had become aware of the allegations GV had made.  GV responded: ‘I stood up.  I’d had enough.  He raped me; he sexually assaulted me.’

32. GV said her father first raped her when she was aged 13. ‘He raped me a lot.  I went to school feeling depressed.  I went to the school counsellor and then police got involved and I told the police my situation.  I told police he’d come into my room and rape me and abuse me.’

33. The Respondent asked GV whether she told anyone in the family about this behaviour and if so, did she think they believed her.  She responded: ‘My brother didn’t want to believe it.  I don’t know if they believed it or not.’

34. GV said she gave evidence in the trial which followed the charges being brought against her father for about three hours.  She said she never went back to live in the same house as her father.  GV said she believed her cousin GH when GH said she had been raped by ZJXK.  GV said she visited her father in prison and had seen him three days before when she visited him in immigration detention.  GV agreed that there was a period of time where she was not speaking to her family at all but last year decided to resume contact with them, because she missed them.

35. In answer to questions by the Tribunal, GV said she remembered undergoing a medical examination by a doctor after she had made the allegations against her father, but while the doctor performed an intimate examination, she could not recall whether the doctor asked her if she’d had sexual intercourse.  In answer to a question from ZJXK’s advocate, GV said she visited her family ‘every weekend’.

    Evidence of MT

36. MT, a friend of the Applicant and his family, gave evidence by telephone.  MT was asked about her understanding of ZJXK’s offending and said she believed he had been ‘convicted of a rape charge’ but was unaware of any other charges against him.

37. MT said when the offending happened, she was in New Zealand.  She said she approached ZJXK and asked him for the details of the case against him.  ZJXK did not want to provide them because he did not want her to ‘be offended’ and MT said that therefore the information she had was not necessarily the correct information. 

38. MT said she was aware that GV, the Applicant’s daughter, had also made certain allegations.  MT said that ZJXK had in the past been her babysitter and ‘nothing out of the ordinary happened to me’, so the convictions do not affect her view of the Applicant.  When asked whether she was aware that another witness, VU, had given evidence before the Court which largely corroborated what GH said in relation to the circumstances of the day that led to the sexual assault conviction, MT said she had not met VU. 

39. In answers to questions from ZJXK’s advocate, MT said she knew GH in Samoa and that she ‘chose not to know her too well, she is very cunning.  There has been a pattern – she has said things about other family members which weren’t true and made allegations that can’t be verified.’

    Evidence of VM

40. ZJXK’s wife, VM, gave evidence before the Tribunal.  She said she suffered from several illnesses and that, before his incarceration, her husband did many household chores and looked after their young son, GD.  She said she missed her husband and was coping because her older children had been helping, but they had their own families and could not assist forever.

41. VM said she had not spoken to the rest of the family about returning to New Zealand if ZJXK’s visa is not restored and that she would not return to New Zealand in that case.  VM said that she had started to fill in adoption papers for GD, but she was not certain that he was formally adopted because they were making arrangements to move to Australia at the time.  VM could not recall seeing the adoption papers as endorsed by the New Zealand Family Court and returned to her.

42. VM said she was aware of ZJXK being convicted of offences relating to ‘a beating and damage to a telephone’.  She said she was not aware of a conviction for sexual assault in the third degree.  She said she was unaware of allegations made against her husband by their daughter or of allegations made by GH against him.  VM then altered her evidence to say she remembered the police talking to her about GV’s allegations but ‘I didn’t believe it was happening’.

    Evidence of GP

43. GP, stepson of ZJXK, gave evidence.  He said he had a close relationship with the Applicant, regarding him as his father, ‘the only father I’ve ever known’.  He said that growing up his father was very strict and used to discipline them to be good children.

44. GP said he lived with his partner about half an hour’s drive from his mother’s house.  He said he had been helping his mother particularly since ZJXK had been in custody.  GP said he was aware of the convictions recorded against his father.  GP gave evidence about how difficult he had found operating the tree-lopping business since his father went into custody and that whilst his half-brother, GF, had recently joined him in the business and his mother helped out with light duties such as raking, he had had to turn down jobs because he couldn’t do them. 

45. Ms Tattersall asked GP whether GH had ever said that ZJXK assaulted her.  He replied: ‘she told me some stuff.   I never saw it with my own eyes.  She said he was trying to rape her.’  When asked if he told anyone else about GH’s allegations, he said ‘No, because I hadn’t seen it.’  The Tribunal asked GP directly whether he believed GH.  He responded: ‘It was hard because she sometimes lies.  She would lie about boyfriends and taking things.  She would take things and then lie about it.’

1. GP was asked whether he was aware of allegations made by GV against her father.  He said he was but did not believe the allegations because ‘I didn’t see it’.

   Evidence of GF

2. GF, the son of ZJXK and VM, gave evidence by telephone.  He said he currently lives with his mother.  He said he was aware of the crimes of which ZJXK had been convicted.  When asked who his father had assaulted, GF responded that it was his sister and his cousin.  Ms Tattersall pointed out that ZJXK had only been convicted of offences against GH.  GF said he did not believe the allegations made by either woman.  He said his sister is a ‘compulsive liar’ and that he’d never seen anything ‘funny’ happen in regard to GH.

   Evidence of GX

3. GX, the oldest child of VM and stepson of the Applicant, gave evidence by telephone.  He said he was currently living in a suburb in Canberra.  He said he stopped living with his parents when he was aged about 17 when the family were living in New Zealand.  He said that while his father had smacked him when he was young, it was about three times in total and for when he had got into trouble at school.

4. GX said he understood his father had been convicted of ‘raping GH’.  He was then told by the Respondent of the convictions of ZJXK (outlined above) made by the Court.  He said he had not discussed the offences with his father but ‘I know my Dad didn’t do something like that.’  He said he was aware of other allegations made by his sister but ‘I didn’t believe her, because she is a liar.’  He said he believed his sister had made the allegations because she knew she would be ‘grounded’ and wanted to go out with her friends.

   CONSIDERATION

5. The Tribunal is not limited to the considerations stipulated in the Direction.  They are not exhaustive.  The Tribunal may consider, more broadly, whether there is any other reason why the mandatory cancellation of the visa should be revoked.  In this matter, as mentioned above, the Tribunal did not have regard to uncharged matters put before it by the Respondent.  It was not even clear on the papers for what reason the police or the prosecution authorities did not take those matters further; in this case no weight is given to these uncharged matters.

6. In relation to the first trial that ZJXK faced (for a range of offences against his daughter, GV), the Respondent submitted that the Tribunal could have regard to information about this trial in this merits review, notwithstanding that ZJXK was acquitted of all the offences, submitting that they are relevant to the Applicant’s general conduct.

7. In support of this contention, the Respondent handed up to the Tribunal two judgments of the Full Court of the Federal Court, Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 (Brown) and Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22 (Taulahi).

8. Taulahi concerned judicial review of a decision by the Minister to cancel Mr Taulahi’s visa.  Relevantly, in the course of his decision the Minister stated, under a heading ‘Other Serious Conduct’:

   I considered the information provided by the ACIC which confirms that Mr TAULAHI’s former girlfriend, Stephanie Mill, obtained three Apprehended Violence Orders against Mr Taulahi on 4 October 2011, 14 October 2011 and 2 February 2012 following a number of intimidation and assault incidents.  I noted that Mr TAULAHI’s conduct did not result in any criminal charges, however I find Mr TAULAHI’s behaviour is a further indication of his propensity to engage in intimidating conduct.

9. Counsel for Mr Taulahi argued before the Court that the Minister’s decision was infected with legal unreasonableness because the Minister took into account irrelevant material, or based his decision on a fact that did not exist.  Counsel went on to say that charges were never laid and Mr Taulahi was entitled to the presumption of innocence in relation to allegations of committing an offence or committing offences.  Mr Taulahi’s counsel cited Woolmington v Director of Public Prosecutions [1935] AC 462, at [481-482], per Viscount Sankey LC, where his Lordship said:

   Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to provide the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exception.  If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.  No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

10. In Taulahi Robertson J (writing for the Full Court) found, at [27], that the Minister’s decision-making was administrative, even if it involved a finding of behaviour which could found criminal proceedings and added, referring to the reference by the Minister to the Apprehended Violence Orders, at [29]:

    Contrary to the submissions of the applicant, that material was plainly relevant to the Minister’s exercise of the discretion.  As I have said, the Minister was engaged in an administrative process.  He was not determining guilt or innocence and was not otherwise involved in the criminal justice process.  It follows that the principle in Woolmington is not presently relevant.

11. I do not accept the Respondent’s submissions in relation to the aptness of this decision in the present review.  Taulahi is plainly distinguishable on the facts from this consideration of ZJXK’s visa cancellation.  In the first trial ZJXK faced, on the material before the Tribunal which was not contested by parties, ZJXK was acquitted on all charges by the Court.  Just as it has been consistently found that the Tribunal may not go behind the verdict of a Court in terms of a finding of guilt, this principle must also axiomatically apply when a person is acquitted. 

12. If charges were still pending or, as in Mr Taulahi’s case, there might be linked behaviour that could found later criminal proceedings, I might come to a different conclusion.  The Tribunal notes that this ability is contemplated in paragraph 5.2(1) of Annex A of the Direction which states:

    The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence

13. However, it is not necessary for the Tribunal to consider ZJXK’s general conduct because he fails the character test by reason of meeting the requisite provisions in sections 501(3A)(a)(i) and 501(7)(c) of the Act. In this case, ZJXK’s acquittal in terms of the charges brought at the first trial is completely dispositive.

14. Equally, I do not find Brown an especially useful precedent.  The facts in that case are also distinguishable where there was an argument put (which failed) that it was not open to the Tribunal to make findings based on what the applicant characterised as ‘slight material’ in making findings that Ms Brown was guilty of criminal conduct.  Again, this judgment is not on point, because it related to the collation of several pieces of information relating to Ms Brown’s conduct as a public housing tenant in the decision-maker making a finding that she failed the character test.  ZJXK has failed the character test by operation of law.  He has conceded this fact.  There is no other material before the Tribunal such as outstanding charges yet to be heard which may be relevant in assessing ZJXK’s general conduct.  Relevantly, section 7 of Annex A of the Direction states:

    A person will not pass the character test if a court in Australia or a foreign country has convicted them of one or more sexually based offences involving a child or found them guilty of such an offence, or found a charge proven against them, even if the person was discharged without conviction.

15. In this matter, one of the charges for which ZJXK faced the Court was Indecent Act – Person less than 16 years (TB3, p 116). At TB3, p 120 the Australian Federal Police ACT Policing notes record: ‘On Thursday 6 April 2017 a trial by Jury acquitted [ZJXK] of all offences against [redacted]’, that is, his daughter GV.Therefore, following the guidance in the Direction, there is no conviction or charge proven against the Applicant, in relation to these particular matters.  The Respondent cannot revive them for fresh consideration by the Tribunal in terms of the Applicant’s conduct where they are matters that are the result of an acquittal.

    Consideration of the Direction

    Primary consideration – Protection of the Australian community (paragraph 13.1)

16. The Direction sets out that 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, and that there is an expectation that non-citizens will not cause or threaten harm to individuals or the Australian community.

17. The Tribunal is obliged to consider the nature and seriousness of ZJXK’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.

18. The Respondent, while noting that ZJXK does not appear to have any other convictions in Australia or New Zealand, noted the sentencing Judge’s findings that the sexual assault offence was within the upper range of objective seriousness for that type of offence (G4, p 29).  The judge also found that the other two offences were within the mid-range of seriousness for those types of offences.  The Respondent submitted that ZJXK’s offending was violent and sexual, directed against a young, vulnerable woman and should be viewed very seriously (see paragraph 13.1.1.(1) of the Direction) and that the imposition of a sentence of imprisonment for the sexual assault offence despite ZJXK’s lack of previous criminal history is indicative of the nature and seriousness of the conduct.

19. The Tribunal notes that the Direction explicitly was amended in 2018 to reiterate the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.  In this instance, ZJXK was living in the same house as his young female relative, GH.  Mossop J’s sentencing remarks include that the Applicant’s general conduct towards GH was significantly controlling.  Notwithstanding she was a young adult, ZJXK would not permit GH to work, he restricted her contact with others and he limited her phone use. 

20. On the facts found, ZJXK committed a serious sexual assault on a person.  His Honour described him as in a relationship of trust with his victim, ‘in the role of a stepfather’ (G4, p 28).  GH was also young and vulnerable, having a young child and having had a profoundly tragic upbringing, including the murder of her mother by her father.  At the time of the sexual assault, GH was in a new country, temporarily separated from her young child and from other family members.  ZJXK exploited this vulnerability in his conduct towards her.

21. The Judge concluded that there was no evidence that ZJXK had a genuine change of mind in relation to his intention to have sexual intercourse with GH without her consent, and was prevented in this only by the arrival of VU at the house that day. Objectively, ZJXK’s actions towards GH in striking her, making her remove her clothes and then lying on her, himself naked, and then threatening her with violence if she told anyone about his actions, are significantly serious.

22. In relation to the other offences, the striking of an adult is objectively serious.  Sensibly, there was no argument put by ZJXK that it was reasonable chastisement.  GH was an adult, and was entitled to express an intention to return to New Zealand without being physically attacked. 

23. In regard to the third conviction, for smashing the mobile phone, the Tribunal regards this as an example of particularly domineering conduct.  It had the effect for a period of cutting GH off from directly communicating with other members of her family and friends here, in New Zealand or in Samoa.  As the sentencing Judge said (G4, p 29):

    The offender dominated and controlled most aspects of the victim’s life, limiting her contact with other people in the Australian community and controlling how she spent her time.  It was this degree of control which made the offending conduct possible.  The offender was aware of the control which he exercised quite deliberately over her life and of her isolation within Australia.  He was thus aware of and exploited her vulnerability.

24. The Direction also requires that I consider the risk to the Australian community should ZJXK commit further offences or engage in other serious conduct.  Mathews J, sitting as a presidential member of the Tribunal, stated in Lam and Minister for Immigration [1999] AATA 56, at [51]:

    Once a person has shown disregard for the law, it can never be said that there is no risk of re-offending.

25. Not only did ZJXK show disregard for the law in the actions that led to his three convictions, but by his complete denial of his criminal offending, I am satisfied that the Applicant’s evidence at the hearing continues to show that disregard.

26. A pivotal point in making an assessment of risk is his complete denial.  ZJXK denied the offending when cross-examined by the Respondent.  He further denied all of the elements of the offending when the facts of the sexual offending were broken down in a series of questions and put to him directly by the Tribunal.  After the hearing was interrupted by a weekend, ZJXK was asked by the Tribunal whether he had reflected on his evidence and wanted to change any of it, and said that he stood by his statements of denial.  In regard to the assault conviction, he denied hitting GH.  In regard to the smashing of the mobile phone, ZJXK only accepted that he had ‘collided’ with GH coming through a door causing her to drop the phone and as he ‘felt partly responsible’ he bought her a new one.  This was not a credible story.

27. The Tribunal made clear to ZJXK that, in undertaking this merits review task, it could not impugn the finding of a Court.  The authorities are consistent in restating this principle in relation to merits-review tribunals undertaking administrative tasks, for example, Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575 and Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1982) 5 ALD 135; 102 ALR 19.

28. In Minister for Immigration and Multicultural Affairs and SRT [1999] FCA 1197; (1999) 91 FCR 234, the Full Court of the Federal Court of Australia (Branson, Lindgren and Emmett JJ) held, at [45]:

    45 To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

    46 While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.

29. To the extent that ZJXK, by his flat denial, was inviting the Tribunal to go behind his convictions, that invitation must be repudiated.  In this circumstance of a complete denial by the Applicant of serious offending, when faced with facts found by the Court after a jury verdict, the Tribunal found that the risk of ZXJK re-offending is not inconsiderable because he explicitly continues to hold the belief that he did no wrong.

30. It is a matter of deep concern to me that some of the evidence put to the Tribunal by ZJXK by witnesses called by him, both in oral evidence and in written statements, may at best be seen to be protective of the Applicant, and less than frank and complete.  An example is this statement from a written statement jointly signed by GP, GX, GF and GV dated 18 September 2019 (Exhibit A4):

    We understand that our dad has been convicted of some serious offences according to Australian law, however we believe our dad has suffered enough.  In addition we know that God as our true and righteous Judge, would punish our dad accordingly, if he is truly guilty.  Our dad has our forgiveness and total love.

    (Emphasis added.)

31. The Tribunal cannot conclude whether or not a natural desire for their father to remain in Australia coloured at least some of the evidence given, but given this view persists more than two years after ZJXK’s trial and conviction in May 2017, a home environment seems to exist that is temporising and characterised by avoidance of the fact of the convictions.  Such an environment is not conducive to support reformative behaviour by a serious offender.  ZJXK’s response to the question as to whether he regards himself as a sex offender, as outlined above, contributes to this view.

32. I am satisfied that in these circumstances this primary consideration weighs very heavily against revoking the mandatory cancellation of the visa.

    Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 13.2)

33. As mentioned above, ZJXK and his wife have care of a minor child, GD.  He may be their legally adopted son.  His legal status is not especially relevant in this consideration because the Tribunal accepts that they have acted in a parental role for him since he was an infant.

34. There was no evidence before the Tribunal that ZJXK had been other than a responsible parent in relation to GD.  GD did not give evidence or provide a written statement, so the Tribunal does not know what his views might be.  The Direction requires me to consider the extent to which ZJXK would play a positive role in his life.  The evidence of GP, GX, stepsons, and GF, son of the Applicant, was that they loved their father.  The Respondent focussed particularly on what corporal punishment regimen ZJXK applied when they were growing up, but their consistent evidence was that they were occasionally smacked, sometimes hit with a stick, but this was rare and confined to when they had committed particular transgressions.

35. While there was indisputable evidence against ZJXK in terms of his sexual assault of a young woman, and certain very serious allegations about his conduct alleged in this hearing by GV, there was no other specific evidence before the Tribunal of violent conduct towards any of the Applicant’s sons, stepsons or his wife, apart from some evidence of childhood chastisement from his son and the two stepsons who gave evidence.

36. The Direction requires me to consider whether there are other persons who already fulfil a parental role in relation to a minor child.  VM fulfils that role currently, and has done so since ZJXK’s incarceration in May 2017, although I accept her and the Applicant’s evidence that she has taken GD to see ZJXK both in prison and in immigration detention whenever it has been practicable to do so.

1. I also considered other minor children in Australia with a relationship with ZJXK.  GV has a six month old son, who has been born since ZJXK has been in custody but, while GV has now made contact with her family, her evidence was that she was estranged until about a year ago, so I find that her son’s relationship with the Applicant is not currently significant, in the sense of close contact.  GX has two children, but they reside in New Zealand with his former partner.  GP and GF do not yet have children.  Another son, GM, who lives in New Zealand and did not give evidence, has a three year old son, but there was no evidence that ZJXK had met him.

2. Notwithstanding the serious offending of ZJXK, because of the evidence before the Tribunal relating to the medical conditions of VM and the consistent, if sparse, evidence about the Applicant’s relationship with GD, the Tribunal finds that this primary consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.  The weight is less than it would otherwise be because VM has been managing with their young son GD, albeit that it is not an ideal situation for her, with her own health challenges.

   Primary consideration – Expectations of the Australian community (paragraph 13.3)

3. The Full Court of the Federal Court of Australia has recently considered part of the predecessor to the Direction, Direction No. 65, in relation to the cancellation of a visa.  However, the Court’s conclusions are relevant in my assessment of ZJXK’s situation because the wording of the primary consideration in Part C of the current Direction is relevantly the same.

4. In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), Charlesworth J for the majority, at [69-73], stated:

   The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:

   The Australian community expects non-citizens to obey Australian laws while in Australia.

   This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike.  It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.

   The second expectation is more difficult to interpret.  It expressed in the second and third sentences of the clause as follows:

   Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or whether the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.

   This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation.  It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.

   Before proceeding further it must be emphasised that cl. 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker should necessarily do.  The question that arises on this appeal is not whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction.  The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

5. The Tribunal finds that the expectations of the Australian community, as stipulated, would be that ZJXK would not have his visa restored, because of the particularly serious nature of his offences against a young woman who had a reasonable belief that he would protect her.  ZJXK’s conduct towards GH was a serious breach of trust, added to which he was violent towards her, and violated her intimately.  It is clear to me from Her Honour’s remarks in FYBR that a decision-maker may on occasion make a different assessment, based on particular factors, from what the normative expectations of the Australian community may be, but in this case I find that those expectations would be in concord.

6. ZJXK committed his offences very soon after he arrived in Australia and was granted his visa.  His obstinate and continuing denial of his wrongful conduct is another factor that weighs heavily against him in this consideration.

7. I found that this consideration weighs strongly against revoking the mandatory cancellation of the visa.

   Other consideration – International non-refoulement obligations (paragraph 14.1)

8. Australia has international obligations not to forcibly return a person to a place where they will be at risk of a specific type of harm.  Neither party made any submissions in relation to an identified risk.  ZJXK’s evidence was that he lived for a lengthy period in New Zealand, and while he did not own property there or assets, he was the bread-winner in the family.

9. The Tribunal notes that ZJXK lived in New Zealand some 24 years, from 1987 to 2011, and worked there.  There was no evidence from parties of any potential harm he might face if returned there.  The Tribunal found that this consideration is not engaged in this consideration and is therefore neutral in the weighing exercise.

   Other consideration: Strength, nature and duration of ties (paragraph 14.2)

10. The Direction requires the Tribunal to have regard to how long a non-citizen has been in Australia, including whether the person began offending soon after arriving in Australia, and what contribution the person has made to the Australian community.  The Tribunal must also consider the effect the loss of the visa would have on ZJXK’s immediate family in Australia where those family members are Australian citizens, permanent residents or people who have the right to remain in Australia indefinitely.  It would appear that none of ZJXK’s immediate family is strictly in any of those three categories but given that New Zealand citizens may generally reside in Australia without time limit, even if holding a temporary visa, the Tribunal will consider them here.

11. ZJXK has been in Australia since 2012, arriving at the age of 50.  As mentioned earlier, he was born and grew up in Samoa before migrating to New Zealand as a young man.  He lived and worked in New Zealand for 24 years and became a New Zealand citizen. In terms of the proven offending, it occurred soon after ZJXK arrived to settle in Australia, before his wife and the bulk of his family emigrated from New Zealand.  

12. ZJXK said that he has always been the bread-winner of the family and consistently worked when they were living in New Zealand.  In Samoa he worked on the family plantation and then worked in several jobs in New Zealand ‘including 2 different companies and farms as well as our own food business,’ as he submitted in a written timeline.  When he came to Australia he established a tree-lopping business with his son.  It appears the business has been reasonably successful.  ZJXK told the interviewer in relation to his pre-sentence report (TB1, p 4) that he had no issue meeting his financial commitments and at that time (November 2016) had no debt.  The Applicant was also an active member of his local church from his arrival in Canberra until he said he voluntarily removed himself after charges were laid against him.  The Tribunal accepts that he made a positive contribution to his local community from soon after his arrival.

13. Before the Tribunal were several medical certificates from medical practitioners treating ZJXK’s wife, VM.  A March 2019 report (Exhibit A14) records that VM has a number of medical conditions, including systemic sclerosis, CREST syndrome, ischaemic heart disease and ventricular aneurysm with intramural thrombus.  Her general practitioner was of the opinion that VM’s conditions seem to be getting progressively worse and that VM would need the support of her husband to care for her and care for their young son, GD.

14. Ms Sauiluma-Duggan submitted that, while there is evidence that since ZJXK has been incarcerated, a paid cleaner has been engaged to assist VM in the home with some of the heavier chores, that arrangement could not continue indefinitely.  The Tribunal notes that, apart from GD, an adult son GF also lives at home with VM, although he stated he is away frequently.  No doubt GF contributes, and can continue to contribute, to supporting his mother in the household to some extent.

15. I note that VM’s cardiologist in her letter dated 9 March 2018 (Exhibit A13) and 19 September 2019 (Exhibit A12), and VM’s rheumatologist in his letter dated 9 March 2018 (Exhibit A15) appeared to be under the mistaken impression that ZJXK was living at home caring for his wife as her ‘formal carer’ when he in fact had been incarcerated from April 2016.  It may be that the practitioners were referring to the period before the Applicant’s convictions but, in any event, VM has been able to live with other family support from early 2016 without the presence of her husband.

16. Given that all but one of ZJXK’s immediate family have now moved to Australia and the remaining son and his family are preparing to do so, the Tribunal on balance finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, but given his serious offending began soon after his arrival in Australia, that weight is light.

    Other consideration: Impact on Australian business interests (paragraph 14.3)

17. The Direction requires decision-makers to consider whether the removal of a non-citizen would significantly compromise the delivery of a major project or important service in Australia.  ZJXK had established, with GP, a tree-lopping business in Australia.  He said it was relatively successful.  GP said that the business struggled after his father’s arrest and incarceration and that while his half-brother, GF was now involved, GF was still learning on the job.  The Tribunal does not consider that this business falls within the compass of this part of the Direction and while I understand that, ideally, their father’s re-joining the business is something they would want, I do not consider that this other consideration carries any weight in this assessment.

18. The Tribunal found that this consideration weighs neutrally.

    Other consideration: Impact on victims (paragraph 14.4)

19. This consideration is only relevant where a victim of a non-citizen’s criminal or general conduct may be aware of a decision not to revoke the cancellation of the non-citizen’s visa and may have expressed a view.  ZJXK said he had not had contact with GH since she left the house they were living in after his arrest.  On the evidence before the Tribunal, GH has since moved interstate and is in a new relationship.  While there is a victim impact statement before the Tribunal, that relates to the effect on GH of the Applicant’s offending, not any view she might have about his immigration status.

20. The Tribunal found that this consideration weighs neutrally in this assessment.

    Other consideration: Extent of impediments if removed (from Australia)(paragraph 14.5)

21. The Tribunal accepted that ZJXK would face emotional hardship if he was returned to New Zealand.  His wife, VM, gave explicit evidence that she would not return to New Zealand in the event that his visa was not restored.  All but one of their stepchildren and children reside in Australia, and the remaining stepson is in the process of emigrating from New Zealand to Australia with his partner.  Balancing that is that ZJXK has lived in Australia only for a relatively short time, since 2012, and before that had been living in New Zealand for 24 years.  As outlined above, ZJXK had a consistent work history in New Zealand. 

22. On his own evidence, ZJXK has a large number of extended family members living in New Zealand.   The Applicant’s wife was firm in her evidence that she would not return to live in New Zealand if her husband’s visa was not restored, but all of his adult sons, as New Zealand citizens, would be free to travel there for contact with their father.  It may be that GD could also travel back there, if accompanied by an adult family member.

23. ZJXK’s general practitioner recorded in March 2018 (Exhibit A14) that he suffered from hypertension, hypercholesterolemia, gout, gastro-oesophageal disease and chronic kidney disease.  The Tribunal also noted that ZJXK is hard of hearing and uses an assisted listening device.  This part of the Direction requires a decision-maker to gauge the extent of impediments the Applicant would face in re-establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country.  The Tribunal is aware that New Zealand has a national health system which provides a range of health treatment broadly similar to that which is available in Australia, and as a New Zealand citizen, ZJXK would have the same access to those services as other citizens.  No substantial submissions were made on his behalf that there were particular health supports available in Australia of which he could not avail himself in New Zealand, and I note that having lived and worked there for most of his adult life, he would be familiar with navigating what health and social services are available.  While ZJXK showed significant difficulties in understanding English, there is a large Samoan community in New Zealand, of which he was a part for a substantial period, and there was no evidence that his language challenges had been an employment barrier in his past in New Zealand.

24. The Tribunal finds that this other consideration weighs neutrally in this assessment.

    CONCLUSORY REMARKS

25. The Tribunal has found that two primary considerations weigh against revoking the mandatory cancellation of ZJXK’s visa.  The other primary consideration relating to the best interests of minor children weighs slightly in his favour.  One other consideration weighs lightly in favour of revoking the mandatory cancellation, and the other considerations weigh neutrally.

26. As the Tribunal said at the conclusion of the hearing, a pivotal (but not the only) consideration in finding that the decision under review was correct in law and the preferable decision in terms of the discretion available to the decision-maker is ZJXK’s refusal to accept guilt and complete absence of remorse for the serious crimes he committed, all against a vulnerable young woman for whom he owed a particular duty of care, a duty he betrayed. 

27. ZJXK shows no insight into the wrongfulness of his past criminal acts and while he made expressions of ‘remorse’, he then explained that was limited only to the fact that the complainants had taken matters to the police.  There is no real remorse at all (also the finding of the sentencing Judge at G4, p 31).  Taking all the evidence into account and the submissions made and the considerations in the Direction, the Tribunal was satisfied that there is not another reason why the mandatory cancellation of the visa formerly held by ZJXK should be revoked.

    DECISION

28. At the conclusion of the hearing of this matter on 22 October 2019, the Tribunal affirmed the decision under review.

127.    I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[SGD].......................................

Associate

Dated:  6 November 2019

Date(s) of hearing:	18, 21, 22 October 2019
Advocate for the Applicant:	L Sauiluma-Duggan
Solicitors for the Respondent:	E Tattersall, Sparke Helmore

Redacted List of Exhibits

Volume of G documents submitted by the Respondent  G

Volume called ‘Tender Bundle’ submitted by Respondent  TB

Statement by ZJXK dated 14 October 2019  Exhibit A1

Document titled ‘Are there any other problems you would face
if you have to return to your country of citizenship?’  Exhibit A2

13 October 2019 letter from NF, SN and MT  Exhibit A3

18 September 2019 joint statement from GP, GX, GF and GV  Exhibit A4

10 May 2019 Statutory declaration of GM  Exhibit A5

19 September 2019 letter from GM  Exhibit A6

10 May 2019 Statutory declaration of GP  Exhibit A7

10 May 2019 Statutory declaration of GF  Exhibit A8

Submission from Ms Sauiluma-Duggan advocate, not dated  Exhibit A9

19 September 2019 letter from Pisisami Rozowskji  Exhibit A10

19 September 2019 letter from Ms Sauiluma-Duggan  Exhibit A11

17 September 2019 medical certificate Dr Arnagretta Hunter, FRACP        Exhibit A12

9 March 2018 medical certificate Dr Arngaretta Hunter, FRACP                  Exhibit A13

9 March 2018 medical letter Dr Mayokun Otesile, FRACGP  Exhibit A4

9 March 2018 medical letter Dr Ted Tsai, rheumatologist  Exhibit A16

14 March 2018 reference from Harvinder Singh Rai  Exhibit A16

9 March 2018 reference from Mr Tii and Vaolele Tamalemai  Exhibit A17