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

[2020] AATA 3804

ZLSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3804 (21 January 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )
  )          No: 2019/7164
General Division  )

Re: ZLSM
Applicant

And: Minister for Immigration, Citizenship,
  Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Member S Burford

DATE OF CORRIGENDUM:            21 January 2020

PLACE:           Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for the decision in this application to the following:

1.

On page one and paragraph [310] the date of the Reviewable Decision

“19 July 2019” should read “28 October 2019”;

2.In paragraph [13] Ms ZLSM gave evidence by telephone, not in person; 

3.Reference to “Mrs” in paragraph [16(g)] should read “Ms ZLSM”;

4.Reference to “Mrs” in paragraphs [90], [91] and [95] are deleted and replaced with “Ms”;

5. In paragraph [99] “…the Applicant entered into a bail undertaking to appear in the Midland Magistrates Court on 13 July 2019” should read “…the Applicant entered into a bail undertaking to appear in the Midland Magistrates Court on 13 July 2017”; and

6.In paragraph [294] “ZSLM” should read “ZLSM”.

.................................[sgd]..................................

Member

Division:GENERAL DIVISION

File Number(s):      2019/7164

Re:ZLSM

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:21 January 2020

Place:Perth

The

Reviewable Decision, being the decision of the Respondent’s delegate dated

19 July 2019 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]........................................

Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 79 – primary and other considerations – protection of the Australian community – expectations of the Australian community – best interests of child – strength, nature and duration of ties to Australia – extent of impediments if returned to Mauritius – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 35(1), 35(3), 35(5), 35 (5)(a)

Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6)(a), 500(6B), 500(6L), 501 (3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501G(1)

CASES

AIJ19 v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 113 ALD 449

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

FYBR v Minister for Home Affairs [2019] FCA 500

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342

Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Nigro v Secretary to the Department of Justice [2013] 304 ALR 535

Pareeth and Minister for Immigration and Citizenship [2011] AATA 527

Re Modini and Tax Agents’ Board of Queensland [2005] AATA 1200

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424

State of Western Australia v Collier [2007] WASA 250

Toki and Minister for Home Affairs [2019] AATA 742

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 6.3(7), 7(1)(b), 8, 8(3), 8(4), 8(5), 13(1), 13(2), 13(2)(a), 13.1(1), 13.1(2), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2(1), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(e), 13.3(1), 14(1), 14.1, 14.2(1), 14.2(1)(i), 14.3(1), 14.4(1), 14.5(1), Part C

REASONS FOR DECISION

Member S Burford

20 January 2020

BACKGROUND

1. The Applicant is a 38 year old citizen of Mauritius. He arrived in Australia with his wife in early January 2008, when he was 26 years old, on a Class TU Subclass 573 Higher Education Sector (Temporary) visa (G9, page 36). He was later granted a Class RN Subclass 187 Regional Employer Nomination (Permanent) visa (the visa) (G2, page 7).

2. The Applicant has an estranged wife and a young son (under six years of age) who are resident in Australia. The Applicant’s wife and son became citizens of Australia in 2018 (R2, G17, G198, pages 75-76). They are both now dual citizen of Australia and Mauritius (Transcript, 9/1/20, page 67).

3. On 13 March 2018 the Applicant was convicted in the District Court of Western Australia on five counts of Used Electronic Communications to Expose a Child under 16 to Indecent Matter; two counts of Used Electronic Communications with Intent to Procure a Person under the Age of 16 years to engage in Sexual Activity and sentenced to a term of imprisonment of 12 months (R2, G23, page 82; R3, G6, page 28).

4. On 27 July 2018 the Applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) (R2, G2, page 7). The basis for the cancellation was that the Applicant did not pass the character test due to either having a substantial criminal record or because he had been convicted of a sexually based offence involving a child. The Applicant was advised that he could make representations to seek revocation of the decision to cancel his visa (R2, G23, page 81-84).

5. The Applicant requested revocation of the cancellation decision on 17 August 2018 (R2, G10, pages 37-40). He made representations in support of his revocation request on 18 December 2018 (R2, G12, pages 59-64).

6. On 28 October 2019, a delegate of the Minister (the Delegate) decided not to revoke the cancellation of the Applicant’s Visa (R2, G4, page 15). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal). The Reviewable Decision was made under s 501CA(4) of the Migration Act.

7. The Applicant was notified of the Reviewable Decision by letter dated 28 October 2019, delivered to him by hand at Yongah Hill Immigration Detention Centre on 29 October 2019 (R2, G2, page 7-25; G28, pages 125, 127). He signed to acknowledge receipt of the notification of the decision on 29 October 2019 (R2, G28, page 127). Accordingly, the Applicant was notified of the decision on 29 October 2019.

8. By application dated 5 November 2019, the Applicant seeks review of the Reviewable Decision (R2, G1, pages 1-6).

9. The Applicant lodged his application for review in the Tribunal on 5 November 2019

   
   

   (G1, page 1). He is in Yongah Hill Immigration Detention Centre and is in the migration zone. He therefore lodged his application for review within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the Migration Act. The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to conduct a review.

10. Subsection 500(6L) of the Migration Act effectively provides that the 84 day period starts to run from the date the Applicant is notified of the Reviewable Decision in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 29 October 2019 and the Tribunal must hand down a decision with respect to this application by no later than 21 January 2020.

    THE ISSUE

11. It is not in dispute that the Applicant does not pass the character test (as defined in

    
    

    s 501(6)(a) read with s 501(7)(c) of the Migration Act). Accordingly, the issue for consideration by the Tribunal is whether the Tribunal is satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa 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).

    MATERIAL BEFORE THE TRIBUNAL

12. The hearing took place on 9-10 January 2020. The Applicant appeared in person and was represented by Mr David Blades, Chisholm Law. Mr Arran Gerrard, from the Australian Government Solicitor, appeared for the Respondent.

13. The Applicant gave oral evidence and was cross-examined. He called his estranged wife, cousin as witnesses and two friends as witnesses, Mr Prashan Puttoo and Ms Tazfeera Gurreebun. Ms Gurreebun gave evidence via telephone from Melbourne. Mr Puttoo gave evidence via telephone from Perth. Ms ZLSM and the Applicant’s cousin gave evidence in person.

14. The Applicant also called Dr Phil Watts (Dr Watts), registered clinical and forensic psychologist, as a witness. Dr Watts appeared via telephone. Dr Watt’s academic qualifications include a Bachelor of Applied Science (Psychology), a Graduate Diploma (Psychology), a Master of Applied Psychology (Clinical) and a Doctorate in Philosophy (A11, Attachment). He holds endorsements with the National Registration Board for Clinical Psychology and Forensic Psychology and is a Member of the Australian Psychological Society. He is an adjunct Associate Professor in Clinical Psychology at Canberra University and supervises Masters students at Murdoch University. Dr Watts gave evidence at the hearing regarding his Psychological Assessment, dated

    
    

    31 December 2019, concerning the Applicant (A11).

15. The Applicant also called Ms Janice Paige (Ms Paige), registered psychologist, as a witness. Ms Paige gave evidence in person. Ms Paige’s qualifications include a Bachelor of Science (Psychology) and a Masters in Psychology (Counselling Psychology) (A12, Appendix 1). Ms Paige is also an Associate Member of the Australian Psychological Society and has experience working with individuals in relation to child sexual abuse. Ms Paige gave evidence at the hearing regarding her Psychological Report, dated

    
    

    30 December 2019, concerning the Applicant (A12).

16. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Applicant’s Statement of Facts, Issues and Contentions dated 16 December 2019 (Exhibit A1);

    (b)Applicant’s Submissions in Reply dated 6 January 2020 (Exhibit A2)

    (c)

    Applicant’s List of Documents dated 16 December 2019 and Annexures

    
    

    (Exhibit A3):

    (i)DadsWA Ngala Certificate of Attendance 14 May 2019

    (ii)DadsWA Ngala Certificate of Attendance 28 May 2019

    (iii)DadsWA Ngala Certificate of Attendance 18 June 2019

    (iv)DadsWA Ngala Certificate of Attendance 2 July 2019

    (v)DadsWA Ngala Certificate of Attendance 15 July 2019

    (vi)DadsWA Ngala Certificate of Attendance 29 July 2019

    (vii)DadsWA Ngala Certificate of Attendance 21 August 2019

    (viii)DadsWA Ngala Certificate of Attendance 27 August 2019 (Information for Fathers)

    (ix)DadsWA Ngala Certificate of Attendance 27 August 2019 (Anger Management Course)

    (x)DadsWA Ngala Certificate of Attendance 27 September 2019

    (xi)DadsWA Ngala Certificate of Attendance 1 October 2019

    (xii)DadsWA Ngala Certificate of Attendance 21 August 2019 (Anger Management Course)

    (xiii)DadsWA Ngala Certificate of Attendance 14 October 2019 (Information for Fathers)

    (xiv)DadsWA Ngala Certificate of Attendance 28 October 2019 (Information for Fathers)

    (xv)DadsWA Ngala Certificate of Attendance 28 October 2019 (Anger Management Course

    (xvi)Ngala letter of participation for the Applicant dated 2 September 2019

    (xvii)Letter from N. Ross, Manager of Clinical Services Holyoake, to Applicant

    (xviii)Lifeskills Certificate of Participation – October-November 2019

    (xix)Lifeskills Certificate of Participation – August-September 2019

    (xx)Lifeskills Certificate of Participation - September 2019

    (xxi)Lifeskills Certificate of Participation - October 2019

    (d)Applicant’s Further List of Documents received 20 December 2019 (Exhibit A4)

    St John of God Healthcare Patient Notes coversheet (20 December 2019)

    (ii)Progress Notes (3 July 2017)

    (iii)Mental Health Assessment (3 July 2017)

    (iv)MH Discharge & Emergency Support Plan (3 July 2017)

    (v)Social Work Assessment (3 July 2017)

    (e)Applicant’s Supplementary Relevant Documents dated 20 December 2019 (Exhibit A5)

    Documents Inspected 5 December 2019

    ·         Reception Intake Assessment 28 July 2017

    ·         Letter from Royal Perth Hospital Dietetics & Nutrition Department 4 July 2017

    ·         Prison Medical Notes pages 22, 32 & 33

    ·         Intensive Supervision Order, Midland Magistrate’s Court 13 April 2017

    ·         Prosecution Notice Lodged 12 March 2017

    ·         Parole Review Report Acacia Prison 21 June 2018

    (vii)Freedom of Information Request – Acacia Prison

    ·         Letter to Applicant 19 December 2019

    ·         Prison Counselling File Notes

    ·         Visits History

    ·         Records of Phone Calls

    ·         Offender Notes

    (viii)Letter from Mark Mahon, Senior Counsellor Holyoake 20 December 2019

    (f)Statutory Declaration of the Applicant dated 17 December 2019 (Exhibit A6);

    (g)

    Statutory Declaration of the Applicant’s estranged wife (Mrs (Unsigned)

    
    

    (Exhibit A7);

    (h)Statutory Declaration of Prashan Puttoo dated 30 December 2019 (Exhibit A8);

    (i)Letter of Support of Ms Tazfeera Gurreebun dated 5 January 2020 (Exhibit A9);

    (j)Statutory Declaration Mr Varun Geereedharry dated 6 January 2020 and handwritten statement of Mr Geereedharry dated 3 January 2020 (Exhibit A10);

    (k)

    Psychological Assessment by Dr Phil Watts dated 31 December 2019

    
    

    (Exhibit A11)

    (l)

    Report by Janice Paige, Clinical Psychologist dated 30 December 2019

    
    

    (Exhibit A12)

    (m)Respondent’s Statement of Facts, Issues and Contentions dated 23 December 2019 (Exhibit R1)

    (n)G Documents filed by the Respondent on 14 November 2019 (Exhibit R2)

    (o)Supplementer Relevant Documents filed by the Respondent on 12 December 2019 (Exhibit R3)

    PROCEEDURAL ISSUES – NON-DISCLOSURE

17. During the hearing, the Applicant sought an order pursuant to s 35(3) of the Administrative Appeals Act (AAT Act) to prohibit the publication or other disclosure of information tending to reveal the identity of the Applicant. The reasons given for the order being sought were that the Applicant may be caused embarrassment due to the publication of reasons due to the nature of the offences, the small size of the Mauritian community in Australia and the embarrassment which may face the Applicant on return to Mauritius if his offences are known.

18. In considering the Applicant’s application for a non-disclosure order the Tribunal is mindful of the requirement in s 35(1) of the AAT Act that proceedings before the Tribunal be held in public and of the principle expressed in s 35(5)(a) of the AAT Act that it is desirable that proceedings before the Tribunal should be held in public. Further, the Tribunal has paid due regard to the reasons provided in favour of making an order for non-disclosure.

19. The Respondent indicated that it did not oppose the order being made having regard to the interests of the Applicant’s minor child which may be detrimentally impacted by the publication of details of the Applicant’s offences. In this regard the Respondent made particular reference to the young age of the child. However, the Respondent submitted that embarrassment to the Applicant was not a sufficient basis for the grant of an order.

20. In the Tribunal’s view the norm that proceedings before the Tribunal should be public is not to be lightly displaced. This is consistent with authority on the use of non-publication and no-disclosure orders which highlight the importance of the public nature of the Tribunal’s proceedings.[1] In light of the existence of the norm of public hearing established by s 35(1) the Tribunal needs a cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. In Australian Securities and Investments Commission v Administrative Appeals Tribunal (2019) 113 ALD 449, the Full Court of the Federal Court found it difficult to accept that harm, even serious harm, to the recipients reputation resulting from public awareness of the case would be sufficiently cogent reason to justify the grant of a stay primarily because the risk of harm of this type is inherent in the nature of such a matter.

    [1] See for example Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 113 ALD 449; Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342.

21. In this regard while the Tribunal can appreciate that the Applicant is desirous of limiting the embarrassment which might flow from publication of the details of his offences, in the Tribunal’s view the harm to the Applicant’s reputation resulting from public awareness of the case is not a sufficiently cogent reason to justify the grant of non-publication order.[2] In the Tribunal’s view such a risk is inherent in the nature of the proceedings where the Applicant’s visa has been mandatorily cancelled on character grounds. Further, the Applicant’s convictions which gave rise to the mandatory cancellation of his visa are a matter of public record and, on the evidence before the Tribunal, those proceedings before the District Court were not the subject of any non-disclosure orders.[3] In such circumstances the Tribunal does not regard that there is a public interest in non-disclosure which would justify departure from the requirement that proceedings be conducted in public. This extends to the publication of any decision of the Tribunal with respect to the application.

    [2] See Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 113 ALD 449.

    [3] See Re Modini and Tax Agents’ Board of Queensland [2005] AATA 1200.

22. However, in the Tribunal’s view the situation of the minor child requires more careful balancing. As Justice Jacobson noted in Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342, “the issue is whether the public interest in open justice must give way to another public interest, namely the real possibility of doing injustice in a particular case or inflicting a serious disadvantage on a party or a witness.” The Tribunal notes that the child was very young when the offences occurred. While he has visited his father in prison at a young age his mother testified that he is not currently aware that his father is in detention and believes that he is away working. The Tribunal has considered that the Applicant pled guilty to the offences and that it is likely that limited details of the offences would be available on the public record. While the child’s mother was not asked about the request for a non-disclosure order the Tribunal drew from her testimony that she was desirous of protecting him from knowledge of the details of the offences in order to allow him to maintain and develop a strong relationship with his father. While the Tribunal notes that the Applicant’s offences make him a reportable offender and as such some details of his offences may be available to some members of the public in particular circumstances, the child is likely to be somewhat isolated from exposure on this basis in the absence of other publication of details of the offences.

1. In such circumstances, the Tribunal accepts that publication of the details of the offences in association with the Applicant’s identity may expose the minor child to a significant risk with respect to public approbation of the Applicant’s conduct. There is also a further risk of exposure of the child to the details of the conduct. Having regard to the Applicant’s offences the Tribunal regards the potential disadvantage which may be suffered by the child to be serious. On balance the Tribunal is satisfied that the protection of the minor child represents a sufficient public interest to depart from the normal rule with respect to the public nature of the proceedings.

2. Accordingly, having considered the principles outlined in s 35(5) and the reasons in favour of giving the direction the Tribunal considered that an order should be made prohibiting the publication or other disclosure of information tending to reveal the identity of the Applicant and members of the Applicant’s immediate family. The Tribunal so ordered on 10 January 2020.

   LEGISLATIVE FRAMEWORK

3. Section 501(3A) of the Migration Act provides that:

   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.

4. Section 501(6) of the Migration Act provides that:

   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

   …

   (b)a court in Australia or a foreign country has:

   (i)     convicted the person of one or more sexually based offences involving a child; …

   (Original emphasis.)

5. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:

   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.)

6. 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

7. 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:

   (c)the performance of those functions; or

   (d)the exercise of those powers.

8. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.

9. 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). The direction commenced operation on 28 February 2019, replacing the previous direction, Direction No. 65.[4]

   [4] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).

10. Paragraph 6.1 of Direction No. 79 sets out the “Objectives” of the Migration Act, with para 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:

    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.

11. 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.

12. 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.

13. Informed by the principles set out in para 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 (para 13(1) of Direction No. 79). Specifically, para 13(2) of Direction No. 79 provides:

    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    (e)Protection of the Australian community from criminal or other serious conduct;

    (f)The best interests of minor children in Australia;

    (g)Expectations of the Australian community.

14. Paragraph 14(1) of Part C of Direction No. 79 lists other considerations as follows:

    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.

15. 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:

    …

    (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.

16. Further guidance as to how a decision-maker is to apply the considerations in Direction No. 79 can be found in paragraph 8 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.

17. Part C of Direction No. 79 sets out considerations that are relevant in exercising the discretion in s 501CA(4) of the Migration Act.

    IS THERE ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

18. Following the cancellation, the Applicant made representations seeking revocation. These were set out in the Applicant’s submissions in favour of his revocation application to the Department (R2, G10- G12) and were summarised by the delegate as follows (R2, G3, Page 11-12):

    ·He would like to be a part of his son’s life, to watch him grow up and become a man;

    ·He wants to be a grandfather to his son’s children;

    ·His removal would deprive his son the affection, care, love and support of his father;

    ·His son needs me and his wife advised that she is stressing having to raise their son by herself and is lonely as she does not know many people in Australia;

    ·He would like to remain in Australia for his partner and work on their relationship;

    ·He ran his own business and is a contributing member of society;

    ·He states that never thought she was underage, although she had told him her age, she sounded more mature and her Facebook profile appeared fake to him;

    ·He would like to get a better education for himself and his son;

    ·He sees being deported as a lifetime punishment, not only for himself but for his wife and son as well.

19. Before the Tribunal, the Applicant’s written Statement of Facts, Issues and Contentions (Applicant’s SFIC), Submissions in Reply (A1 and A2) and oral submissions to the Tribunal outlined the Applicant’s central contentions as to the “other reason” why the cancellation should be revoked. The Applicant’s primary contentions were that the his low risk of re-offending, the best interests of his son, his strong ties to Australia, the impact of non-revocation on a victim of his crime (his estranged wife), and significant impediments if removed to the Mauritius constitute another reason why the cancellation should be revoked.

20. The Applicant acknowledged the general principle in Paragraph 6.3(3) of the Direction but submitted that the general principle forfeiting the right to stay in Australia should not apply to the Applicant because (A1, page 3, para 21 -29):

    ·offending was in the lower mid-range of seriousness;

    ·he ceased communicating with the child persona of his own volition;

    ·he was living in Australia for an extended period prior to his incarceration and during this time was making a positive contribution to the Australian community;

    ·the non-revocation of his visa cancellation would have a major negative it impact on his son and it would be in the child’s best interests for the cancellation to be revoked;

    ·the child’s mother supports his request to remain in Australia despite being the victim of some of his offending.

21. In summary, with respect to the relevant principles and considerations, the Applicant contended as follows (A1; Transcript, pages 34-52 and 65-70):

    ·The circumstances of the offending mitigate its seriousness including: his mental state at the time of the offending and the fact he was suffering a personal crisis, depression and going through a marriage break-down at the time, the fact he did not seek to meet the child persona and ceased contact of his own accord, and the fact the Applicant’s offending occurred over a short, contained period;

    ·The Applicant is at low risk of re-offending, as supported by the reports of the psychologists, Dr Watts and Ms Paige;

    ·While the Applicant accepted that the expectations of the Australian community would be that the cancellation should not be revoked, he submitted that having regard to all the circumstances of his case this consideration should be given less weight than other factors and in particular the best interests of his son;

    ·The Applicant has strong ties to Australia, having been a resident in Australia for almost 12 years, the majority of his adult life. His estranged wife and son are Australian citizens. He has strong social ties to Australia, including through his family, employment and social activities. The victim of some of his offending, his estranged wife, supports him remaining in Australia in the interest of their son and has undertaken to support him maintaining a relationship with their son;

    ·His family would suffer financial hardship if he were removed from Australia and he would be unable to pay debts including to the Australian Taxation Office;

    ·There are significant impediments if the Applicant is removed from Australia including: his lack of social supports due to his estrangement from immediate family in Mauritius, difficulty finding employment, difficulty maintaining a relationship with his son and the impact of removal and separation from his son on his mental health.

22. The Respondent submitted, in summary, that the protection of the Australian community and the expectations of the community weigh against the Applicant and outweigh other considerations including the best interests of the Applicant’s son (R1, page 18, para 85). The Respondent contended that the Applicant’s offending was very serious. The serious nature of the Applicant’s offending and of the consequences which could flow from any repetition of that offending meant that the community should not be expected to tolerate any risk of similar offences being repeated (R1, pages 12-14).

23. These submissions will be dealt with in more detail below.

    PRIMARY CONSIDERATIONS

24. Pursuant to para 13(2) of Direction No. 79, the following are primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of the Applicant’s visa:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction No. 79)

25. Paragraph 13.1(1) of Direction no. 79 provides that:

    (1)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…

26. Paragraph 13.1(2) of Direction No. 79 then provides:

    (2)Decision-makers should also give consideration to:

    (c)The nature and seriousness of the non-citizen’s conduct to date; and

    (d)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 (para 13.1(2)(a) of Direction No. 79)

1. 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:

   (e)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (f)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (g)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;

   (h)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   (i)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (j)The cumulative effect of repeated offending;

   (k)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (l)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);

   (m)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.

2. As at 18 March 2013, the Applicant had never been convicted of any crime of misdemeanour in Mauritius.

3. A summary of the Applicant’s offending history in Australia is as follows (R1; R2, G6, pages 27-28; R2, SG1, pages 130-132) (the Table of the Applicant’s Offending):

Court	Court Date	Offence	Offence Date(s)	Court Result
Perth Magistrates Court	14 Mar 2011	Stealing (2 counts)	13 Dec 2010	Fine $1000 (global)
Midland Magistrates Court	13 Apr 2017	Common assault in circumstances of aggravation or racial aggravation	18 Feb 2017	Intensive supervision order, 9 months concurrent from 13 Apr 2017
Unlawfully assault and thereby did bodily harm with circumstances of aggravation	11 Mar 2017	Intensive supervision order, 9 months concurrent from 13 April 2017
Midland Magistrates Court	5 Jul 2017	Breach family violence restraining order or violence restraining order Breach of protective bail conditions	1 Jul 2017 1 Jul 2017	Fine $600 Fine $600
Midland Magistrates Court	24 Aug 2017	Assault public officer	27 May 2017	Intensive supervision order, 12 months concurrent from 24 Aug 2017
Breach Intensive Supervision order (2 counts)	27 May 2017	Intensive supervision order, 12 months concurrent from 24 Aug 2017
Common assault in circumstances of aggravation or racial aggravation	27 May 2017	Suspended imprisonment order, 6 months 1 days, concurrent suspended 12 months from 24 Aug 2017
Threats to injure, endanger or harm any person	27 May 2017	Suspended imprisonment order, 6 months, concurrent suspended 12 months from 24 Aug 2017
Perth District Court	13 Mar 2018	Used electronic communications to expose a child under 16 years to indecent matter (5 counts)	12 Jan 2017 to 16 Feb 2017	Total effective sentence of 12 months’ imprisonment from 13 Mar 2018 Reportable offender
Used electronic communications with intent to procure a person, under the age of 16 years, to engage in sexual activity (2 counts)	15 Feb 2017 to 16 Feb 2017

1. As noted above, Paragraph 13.1.1(1)(a) of Direction No. 79 states that “violent and/or sexual crimes are viewed very seriously”. Paragraph 13.1.1(1)(b) states that “crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed”.

2. Also as noted above, the Applicant was convicted of the 5 counts of using electronic communications to expose a child under 16 years to indecent matter and two counts of using electronic communications with intent to procure a person, under the age of

   
   

   16 years, to engage in sexual activity. Having regard to Paragraph 13.1.1(1)(a), these are sexual crimes which must be viewed very seriously.

3. Further, the Applicant has been convicted of violence related offences including aggravated common assault and unlawful assault causing bodily harm where the victim was the Applicant’s estranged wife. Having regard to Paragraph 13.1.1(1)(b), these are violent crimes against a woman and are to be viewed very seriously regardless of the sentence imposed.

4. In submissions the Applicant conceded that his offending fell into these categories
   (A1, page 23. Para 23).

   The issues of going behind or impugning the convictions

5. The Tribunal notes that the Applicant has acknowledged his offending was serious and expressed remorse for his actions (A6). The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.

6. However, the Tribunal also notes that the Applicant submitted that the context and circumstances of the offending mitigate the seriousness of the offences or the risk of the Applicant reoffending (A1; G12, page 60). The Applicant’s evidence included the assertion that he did not believe he was communicating with a 15 year old but thought it might be a child persona or that she might be older than 15 because she looked more mature and the Facebook profile seemed fake (R2, G11, page 52-53; G12, page 60). The Tribunal notes that this was a position recorded in the psychological report by Dr Watts (A11, page 4, para 18).

7. Both the Applicant and Respondent provided oral submissions addressing the extent to which the Tribunal was bound to accept the factual findings on which the Applicant’s convictions were based and with respect to the offences giving rise to the cancellation of the Applicant’s visa, the elements of the offences (Transcript, 10/1/20, pages 34-41,

   
   

   54-56).

8. The Applicant submitted to that it was open to the Tribunal to consider the circumstances of the offences[5]. The Applicant submitted that this was particularly so where the Applicant had plead guilty to the offences (Transcript, 10/1/20, page 40). [6]

   [5] Citing the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 (Daniele) at [653]

   [6] Citing Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [38].

9. The Respondent submitted that the Tribunal was bound by the findings of the Sentencing Judge and the nature of the offence for which the Applicant was found guilty. In this respect the Respondent submitted that the offence itself included the element of intent to procure a person under the age of 16 to engage in sexual activity (Transcript, 10/1/20, page 53). The Respondent submitted that the authorities made it clear that the Tribunal is bound by the convictions and by the findings contained in sentencing remarks.

10. Relevantly, the Criminal Code WA provides in s 204(2)

    An adult who uses electronic communication -

    ……..

    (b)      with intent to -

    (ix)procure a person the offender believes is under the age of 16 years to engage in sexual activity;

    or

    (x)expose a person the offender believes is under the age of 16 years to any indecent matter,

    either in Western Australia or elsewhere,

    is guilty of a crime and is liable to imprisonment for 5 years.

11. Further s 204B(9) provides that:

    Evidence that the victim was represented to the accused person as being under the age of 16 years, or 13 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused person believed the victim was under that age.

12. With respect, the Tribunal does not accept the Applicant’s submissions as to its discretion to consider “circumstances” of the offences which are not consistent with the facts as found by the Sentencing Judge or as indicated in the offences themselves. In the Tribunal’s view this invites the Tribunal to go beyond the scope outlined in the case law[7].

    [7] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [77]). See also the survey of Bromberg J HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 and consideration of the issues by this Tribunal in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 4424 (31 October 2019) and Toki and Minister for Home Affairs (Migration) [2019] AATA 742 (17 April 2019)

13. In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803[8] (HZCP), Bromberg J provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction. According to the cases surveyed by His Honour, the Tribunal’s assessment of the circumstances of an applicant’s offending will be an important part of its consideration as to whether to exercise its discretion to revoke the mandatory cancellation of an applicant’s visa. As the discussion in HZCP demonstrates, the question of whether and to what degree the Tribunal can investigate the facts underlying the Applicant’s convictions is an important one and has been the subject of detailed judicial consideration.[9]

    [8] Upheld on appeal HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.

    [9] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Ethnic Affairs v Gungor (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981); Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

14. In HZCP, Bromberg J’s detailed consideration of the authorities,[10] summarised the principles to be applied as follows (at [78]):

    (1) Where a previous conviction is the foundation for the exercise of power by the decision maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

    (2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.

    [10] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

15. His Honour’s judgment was considered and upheld on appeal to the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 where McKerracher J stated [at 77]:

    As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based….

    The adjudgment of guilt, and determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.

16. Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to deport is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions there is a “heavy onus” on the Applicant where they seek to challenge the facts upon which those convictions are based.

17. The Tribunal notes that the Applicant submitted that the decision of Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [43] supported the proposition that the heavy onus an applicant faces in challenging the facts on which a conviction is based will be more easily met where the applicant pleads guilty to an offence. However, in the Tribunal’s view her Honour limited those comments to a conviction and sentence upon which the power to deport is not based. Her Honour noted:

    in my view, the Act should be construed as requiring a decision maker under s 200 of the Act[11] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

    (Emphasis added)

    [11] Her Honour was consider an earlier version of the Act, however as s 200 was a precursor to s 501 her comments are equally applicable to the current application.

18. The Tribunal considers that it is bound by the principles espoused in the authorities and in particular by the decision of the Full Court of the Federal Court in HZCP.

19. The Tribunal accepts that the Applicant was convicted of two counts of offence ‘using electronic communication with intent to procure a person, under the age of 16 years, to engage in sexual activity’ and five counts of ‘used electronic communication to expose a child under 16 to indecent matter’. He was sentenced to 12 months imprisonment for these offences. It is on the basis of these offences and the sentence imposed that his visa was mandatorily cancelled. The Tribunal considers that these convictions are “highly probative of the truth of the factual matters essential to the conviction”.[12]

    [12] As per Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [38].

20. As noted above, the Applicant pleaded guilty to the offence. It may, in some instances, be difficult to distinguish between the “essential facts” on which the convictions giving rise to cancellation of the visa are based (those facts which cannot be challenged) and those which relate to other convictions or more broadly the circumstances of offending (those which may be open to greater scrutiny). However, in the Tribunal’s view it is clear that the Applicant’s claim that he believed that he was not communicating with a child under 16 years of age is an essential fact of the conviction, the age of the child and his intent to commit the offence.

21. The Sentencing Judge found that the Applicant had communicated with a child persona who was 15 years old. While her sentencing remarks make reference to the Applicant indicating he thought it might have been a persona she comments, not in his favour, that he persisted regardless (R2, G7, page 33).

22. In the Tribunal’s view, the fact that the Applicant intended to communicate with a 15 year old is inherent in the offence for which he was convicted. It is a finding of fact of the Sentencing Judge. The Tribunal does not consider it is open to the Tribunal to adopt an alternate version of these facts in mitigating the seriousness of the offence. However, the Tribunal does accept that it can take account to the fact that the Applicant was conscious in his communications that this may in fact have been a child persona (in the words of the Sentencing Judge, R2, G7, page 33) and that this did not deter him. In any event, as considered further below, the Tribunal does not consider that the fact the Applicant persisted regardless of what he appeared to recognise was a risk he was communicating with a child person to be a matter that mitigates the seriousness of the offending or the risk of reoffending.

23. Further, the Tribunal notes that the Applicant did not offer any corroborating evidence to support his assertion that his did not think he was communicating with a 15 year old.

24. Having regard to all the evidence, the Tribunal is unable to accept the Applicant’s version of events as credible, even if it were open to the Tribunal to do so. This is because the evidence falls well short of discharging the “heavy onus” which falls on an Applicant seeking to challenge the facts upon which the conviction is necessarily based, even where the conviction does not form the basis for the exercise of power. The Tribunal is not satisfied on the Applicant’s evidence that there is any basis for going behind the convictions or to rejecting the facts as found by the Sentencing Judge.

25. In this regard the Applicant’s denial of the facts of the offences, and in particular the suggestion he thought he was not communicating with a child, gave rise to some concern for the Tribunal both with regard to the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences. These matters are dealt with further below.

    Online sexual offending

26. The mandatory cancellation of the Applicant’s visa arose with respect to the online sexual offending.

27. On 5 January 2017 the Applicant set up a Facebook profile under the name of ‘Dax Moore’. He began communicating with a covert police officer, who had adopted the persona of a 15-year-old girl. The communications occurred over a 5 to 6 week period. (R2, G7, Page 30). He had earlier set up another fake Facebook account to ‘talk to other girls’ but this account was not the subject of any charges and there is no evidence the Applicant was using it to talk to girls under the age of 16 (Transcript, 9/01/20, pages

    
    

    26-27).

28. The Sentencing Judge, Petrusa DCJ, described the circumstances of the offences as follows (R2, G7, page 30):

    You then proceeded to communicate with her over the next five or six weeks. During that time, on five separate occasions you made suggestive remarks and on two occasions sent pornographic material. On the first you sent an image of an erect penis ejaculating and on the second you sent a link to a video on a pornographic website telling the child persona that you’d sent them porn.

    On two of those five occasions you also encouraged the child persona to masturbate. You gave instructions on how she would do this. You included an image of a vagina.

29. Her Honour noted that, to his credit, the Applicant terminated contact with the child persona of his own volition on 16 February 2017 and deleted the fake Facebook profile (R1, G7, page 30).

30. Her Honour noted that the Applicant did not arrange to meet the child, but did offer to provide her with a phone, “which from the discussions had may have necessitated a meeting so that it could be delivered” (R1, G7, page 33). Her Honour made these comments having had the benefit of a detailed account of the interactions in an outline by the prosecutor and a fuller transcript of the interactions (R1, G7, page 30). Those details or documents were not available to the Tribunal.[13]

1. At the commencement of the hearing the Tribunal noted the absence of the outline by the prosecutor which her Honour ‘formally incorporated’ into her sentencing comments. The document had not been produced by the District Court or made available with the transcript. The Tribunal requested the Respondent make efforts to obtain the document, however at the time of this decision the document was not available. In any event, the Applicant accepted the account of the offences contained in the sentencing remarks and included in the Statements of Material Facts with the exception of the Applicant’s assertion that he thought the child was older than 15 years or was a child persona.

2. According to the sentencing remarks, the police executed a warrant at the Applicant’s address on 27 September 2017. The Applicant was arrested and participated in an interview, during which he denied any knowledge of the child persona or the Facebook page and any wrongdoing (R2, G7, page 33). However, the Applicant subsequently entered guilty pleas to the offences at the first available opportunity, and her Honour afforded the Applicant a full discount on his sentence for his plea (R2, G7, page 33).

3. The Applicant was sentenced to a 12 months’ imprisonment for five of the offences, six months for one offence and three months for another. The sentences were to be served concurrently and the Applicant was made eligible for parole. The total effective sentence was 12 months imprisonment. (R2, G7, page 34) The maximum penalty possible for the offences was 5 years imprisonment (R2, G7, page 30).

4. Her Honour formed the view that the offending was ‘at the lower mid-range of seriousness’ for offending of this kind (R2, G7, page 30). Her honour observed that

   
   

   (R2, G7, page 30):

   there were multiple contacts with the child persona over this five to six week period. The age difference between you was 20 years. You sent sexually explicit material on two occasions and you endeavoured to encourage her to engage in sexually explicit conduct.

5. Her Honour went on to note with respect to the particular facts of the Applicant’s offending (R2, G7, page 33):

   In this case you endeavoured to persuade the child persona to masturbate with relatively graphic language. You also sent images of male and female genitalia as well as a link to a pornography site. Your conduct is then very serious. Further, you were aware that you– that the contact you were having with the child persona was wrong. You make mention of that fact a number of times in the transcripts I have seen.

   You were also conscious in your communications that this may have been a child persona, but this too did not deter you.

6. In sentencing the Applicant to a term of imprisonment her Honour noted his personal circumstances and the fact that imprisonment was a sentence of last resort. He Honour was satisfied that the offending was ‘too serious’ for a suspended sentence (R2, G7, page 34).

   Assaults and domestic violence related offences

7. As noted above, the Applicant has been convicted of a number of domestic violence related offences including aggravated common assault and unlawful assault causing bodily harm where the victim was the Applicant’s estranged wife. The Applicant was also convicted of breaching violence restraining orders, protective bail conditions and intensive supervision orders. Those offences also arose with respect to violence perpetrated against his wife.

8. The details of the offences are outlined in Statements of Material Facts from Western Australia Police (R3, SG1, pages 139-1144, 146-149) and witness statements from the Applicant’s estranged wife (R3, SG1, pages 161-171, 172-183).[14] These facts were put to the Applicant during cross-examination and he accepted the summaries put to him were accurate and did not deny having committed offences against his wife (Transcript, pages 37-40).

   [14] Unsigned statement

9. According to the Statements of Material Facts and a statement of Mrs ZLSM (R3, SG1 pages 172-183), on 18 February 2017, the Applicant and his wife were at home and became involved in a heated argument regarding his belief she was cheating on him
   (R3, SG1, page 147, 175-176). The Applicant became angry when she asked him to leave the premises; he began to poke her in the face with his finger. He then grabbed her around the throat, and told her ‘next time anything happened I’ll break your bones so you’re handicapped’. The Applicant then left the residence and did not return that night. (R3, SG1, page 147, 175-176). These events gave rise to the charge of ‘Common Assault in Circumstances of Aggravation or Racial Aggravation’.

10. Again according to the Statements of Material Facts and a statement of Mrs ZLSM
    (R3, SG1 pages 172-183),

    on 11 March 2017 the Applicant and his wife became involved in another heated argument at home. They were sitting on their couch and their then

    
    

    2 year old son was on the ground between them (R3, SG1, page 148). The Applicant struck his wife with a backhanded punch to the face, cutting her lip causing it to bleed. He then punched the victim again, using a closed fist, to the left-hand side of her face, causing pain and swelling around her cheek and left eye (R3, SG1, page 148). The Applicant’s wife left their house with their child, and went to the Midland Police Station where she reported the incident. These events gave rise to the charge of ‘Aggravated Assault Occasioning Bodily Harm’.

11. The Applicant attended the Midland Police Station shortly after his wife on 11 March 2017. He was arrested and participated in a record of interview. The Applicant made full admissions to police on both the assault on 18 February 2017 and the assaults on

    
    

    11 March 2017.

12. On 13 April 2017 the Applicant was sentenced to a 9-month intensive supervision order (ISO) on charges of aggravated common assault and aggravated assault occasioning bodily harm. The maximum penalty for an aggravated common assault is 3 years’ imprisonment and a fine of $36,000. For aggravated assault occasioning bodily harm the maximum is 7 years’ imprisonment (R2, page 9, para 34-35)[15]. The transcript of the Sentencing Judge’s comments (if any) with respect to these convictions are not before the Tribunal.

    [15] Citing the Criminal Code (WA) s 131(1)(a) and s 137(1)(a).

13. An interim Violence Restraining Order was issued against the Applicant for the protection of his wife on 16 March 2017 (R3, SG1, page 184).

14. Again, according to the Statements of Material Facts and a statement of Mrs ZLSM
    (R3, SG1, pages 161-171), on 27 May 2017 the Applicant returned to the family home intoxicated after drinking at a friend’s house (R3, SG1, page 144, 163-164)). He asked his wife for some food, which she provided for him. Without provocation, the applicant slapped his wife across the face causing her to cry. He responded by punched her to the right cheek. The applicant then started to hug his wife but decided to punch her in the face again. This gave rise to the charge of ‘Common Assault in Circumstances of Aggravation or Racial Aggravation’ (R3, SG1, page 143).

15. After slapping and punching his wife, the Applicant then demanded that she sit with him while he ate his food. He touched her face and then told her ‘I will kill you’. He stood up, and said ‘I am going to kill you now’. The Applicant’s wife fled to the safety of her son’s bedroom, and contacted police (R3, SG1, page 144, 165-166). She heard the Applicant rummaging in the kitchen cutlery drawer. The Applicant then forced open the bedroom door, dropping a large kitchen knife taken from the kitchen (R3, SG1, page 144, 166-167). The Applicant’s wife claimed he then went back to finish his food and then took her to the bedroom. She asked to go to the toilet and fled the house (R3, SG1, 168-169). When police arrived, the Applicant was outside. The Applicant was arrested and taken to the Midland Police Station, where he participated in a record of interview, but did not provide an explanation for his conduct (R3, SG1, page 144). These events gave rise to the charge of ‘Threats to injure, endanger or harm any person’. The Tribunal notes the Applicant testified he could not recall the details of these events as he was intoxicated but he accepted his wife’s account (Transcript, 9/1/20, page 39-40).

16. Whilst in a holding cell at the Midland Police Station following his arrest for the events at his home, the Applicant threw a partially drunk cup of water onto a Police Constable
    (R3, G1, page 145). This event gave rise to the charge of ‘Assault pubic officer’. The Applicant challenged the account of this event in the Statement of Material Facts (Transcript, 9/1/20, page 41). This is discussed further below.

17. These offences were committed around six weeks after the Applicant was sentenced for the earlier assault offences and whilst he was the subject the ISOs. The events also gave rise to two counts of ‘Breach of Intensive Supervision Order’ relating to the ISOs which had been made in April 2017 (R3, SG1, page 131).

18. On 26 June 2017, a final Violence Restraining Order (VRO) was issued against the Applicant for the protection of his wife[16]. The VRO prevented the Applicant from entering, remaining or loitering near the residence of his wife (R3, SG1, page 186). On 29 June 2017, the Applicant entered into a bail undertaking to appear in the Midland Magistrates Court on 13 July 2019, which included similar conditions to the VRO (R3, SG1, page 141).

    [16] It was not clear when the VRO was cancelled, however the Tribunal accepts it was no longer in force by December 2017).

19. On 1 July 2017, the applicant contravened the VRO and breached the protective bail conditions, by attending an address where his wife was present with their child, in order to see his child for the child’s birthday (R3, SG1, page 140-141; Transcript, page 41-42). This was less than a week after being served with the restraining order and entering a bail undertaking. These events gave rise to the charges of ‘Breach Family Violence Restraining Order or Restraining Order’ and ‘Breach of protective bail conditions’.

20. On 5 July 2017, the Applicant was sentenced to $600 fine for each of the breach offences. The maximum sentence for breaching a VRO is a fine of $6,000 and/or 2 years’ imprisonment (R1, page 10, para 40[17]). The maximum sentence for breaching protective bail conditions is a fine of $10,000 and/or 3 years’ imprisonment (R1, page 10, para 40).[18]

    [17] Citing Restraining Orders Act 1997 (WA) s 61(1)

    [18] Citing Bail Act 1982 (WA) s 51(6)

21. On 24 August 2017, the Applicant was sentenced to a total effective sentence of 6 months and 1 day’ imprisonment, suspended for 12 months for the aggravated common assault and threat to injure, endanger or harm offences. He was sentenced to an ISO for

    
    

    12 months’ duration in respect of the assault public officer and breach of ISO offences.

22. The maximum sentence for threats to injure, endanger or harm a person is 3 years’ imprisonment (R1, page 10, para 42[19]). The maximum sentence for assault public officer is 7 years’ imprisonment (R1, page 10, para 42[20]). The maximum sentence for breaching an ISO is a fine of $1,000 and additional powers under s 133 of the Sentencing Act 1995 (R1, page 10, para 42).[21]

    [19] Citing Criminal Code (WA) s 338B(b)

    [20] Citing Criminal Code (WA) s 318(1)(m)

    [21] Citing Sentencing Act 1995 (WA) s 332(2)(b)

    Stealing offences

23. The Applicant’s first offences, in 2011, were for ‘Stealing’. The details of the offences are outlined in Statements of Material Facts from Western Australia Police (R3, SG1, pages 150-151). These facts were put to the Applicant during cross-examination and he accepted that the summaries put to him were accurate and did not deny the offending (Transcript, pages 25-26).

24. These offences occurred on 13 December 2010, when he entered the Applicant entered two large department stores and stole items of clothing. The Applicant was detained by loss prevention staff outside the second store, and escorted to the security office, where he made full admissions to police. The Applicant was summonsed to attend court and sentenced to a global fine of $1,000.

25. The maximum sentence for stealing is 7 years’ imprisonment (R1, page 7, para 26).[22]

    [22] Citing Criminal Code (WA) s 378

    Consideration

26. As noted earlier, having regard to Paragraph 13.1.1(1)(a) and Paragraph 13.1.1(1)(b) of Direction No. 79 the Applicants sexual offences and his violent crimes against his wife must be viewed very seriously.

27. Further, paragraph 6.3(3) of Direction No. 79 is also applicable to the Applicant’s offending, because it states that a non-citizen who has committed a “serious crime” including crimes of a sexual nature against children and violent crimes against women should generally expect to forfeit the privilege of staying in Australia.

28. To his credit the Applicant conceded that his offending was serious (Exhibit A1, page 23, para 23; R2, G12, page 60).

29. The Respondent submitted that Direction No. 79 specifically identifies sexual offences against children as offences which are viewed very seriously: see 6.3(3) and 13.1.1(1)(a) and (b). The Respondent further submitted that ‘the existence of s 501(6)(e) as a separate basis for failing the character test highlights Parliament’s desire to give primacy to the overarching need for protection of children against any sexual abuse’ (R1, page 10-11, para 44[23]). The Respondent submitted that the Tribunal has consistently found that offences involving the use of the internet to procure minors to engage in sexual activity are of great concern[24] and referred the Tribunal’s attention to the comments of Deputy President Hotop in Pareeth and Minister for Immigration and Citizenship [2011] AATA 527 at [25] where the Deputy President noted (R1, page 110-11, para 44):

    the applicant’s conduct in committing those offences is a matter of great concern to the welfare and safety of the Australian community, and that conduct is repugnant and clearly unacceptable to the Australian community and it must be regarded as involving serious criminality …

    [23] Referencing the Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill 2014 at [47]-[50].

    [24] Varley and Minister for Home Affairs [2019] AATA 376; Mayathevar and Minister for Immigration and Citizenship [2012] AATA 566; Willis and Minister for Immigration and Citizenship [2011] AATA 859.

30. The Respondent also submitted that the fact the child in this instance was a child persona did not lessen the seriousness of the offending. The Respondent due the Tribunal’s attention to the case of the State of Western Australia v Collier [2007] WASA 250 where the Court of Appeal (WA) where Steytler P (with whom McLure JA and Miller JA agreed) noted in discussing the introduction of s 204B and the seriousness with which the legislature regarded the offences (in the context of sentencing):

    ..it is plain from the provisions to which I have referred that the legislature regards an offender’s conduct as being no less reprehensible if an offender is communicating with a person believed to be a child, although not actually so, than if communicating with a person who is in fact a child. In my respectful opinion, that is not surprising. The first category of behaviour is no less morally reprehensible than the second.

    (Citations omitted)

    The Tribunal respectfully agrees with his Honour.

31. The Applicant did not seek to diminish the seriousness of sexual offending against children. However, the Applicant submitted that particular circumstances of the offending should be taken into account. In this regard the Applicant highlighted the fact that his online sexual crimes involved communicating with a person he believed was age

    
    

    15 years. The Applicant also drew the Tribunal’s attention to the fact the Applicant did not arrange to meet the child and that the Applicant was aware, as noted in the Sentencing Judge’s remarks, that this conduct was wrong. The Applicant drew attention to the fact that he had ceased contact with the child persona of his own volition, a matter her Honour noted to the Applicant’s credit.

32. With respect to these submissions Tribunal accepts that the Applicant ceased contact with the child persona of his own volition and notes her Honour’s comments that this was to his credit. However, the Tribunal does not consider that the fact that Applicant persisted with contact with the child persona notwithstanding his knowledge that his actions were wrong and that she was ’too young’ and that he would ’get in trouble’ diminishes the seriousness of the offending. Further while the Sentencing Judge’s assessment that the offending was at the ’lower – middle range of seriousness’ for offending of this type it does not follow, in the Tribunal’s assessment, that the offending was not still very serious. Indeed her Honour’s general comments about the risks associated with such offending (detailed below) suggest to the contrary (R2, G7, page 33).

33. The Applicant also drew attention to the fact that the police did not make contact with the applicant for the purpose of arrest, interviewing him and charging him with the offences related to this conduct until 27 September 2017. The Applicant submitted that this ’suggests that the police did not regard the inception and arrest of the applicant has a high priority at the time’. The Tribunal does not accept this submission as it is overly speculative. There is no evidence before the Tribunal as to the reasons why charges were not laid with respect to these offences until September 2017. In any event, the Tribunal does not accept that the delay evidences a lack of seriousness with regard to the offending.

34. The Applicant sought to distinguish other cases dealt with by the Tribunal, and cited by the Respondent, as involving conduct which was more serious than the Applicant’s. The Applicant drew a distinction based on the age of the children involved (13 years old compared with 15 years old in the Applicant’s case), the number of contacts, the fact the activity was ceased by the Applicant without the intervention of police and the fact the Applicant did not seek to meet the child (Transcript, 10/1/20, page 42).

35. The Respondent did not accept that the factual circumstances supported the Applicant’s assertion he did not intend to meet the child. The Respondent pointed to evidence that the Applicant had asked for the child’s phone number and address is an indication that he may have intended to seek to meet her. The Respondent further pointed to the comments of the Sentencing Judge that the discussion regarding the provision of the phone indicated that this may have necessitated a meeting (Transcript, 10/1/20, page 55).

36. In the Tribunal’s view there is insufficient evidence to establish whether the Applicant intended to meet the child. In such circumstances the Tribunal gives the benefit of the doubt to the Applicant that he did not intend to meet the child. In this regard, the Tribunal notes Dr Watts’ evidence supported the position that some offenders may only offend online without seeking to engage in activity in person (Transcript, 9/1/20, page 88). However, while the fact that the Applicant did not seek to meet with the child persona, may affect the assessment of the seriousness of the offending within a range of very serious offences (for example placing it in the lower mid-range of such offending), and may also impact an assessment of the risk to the community associated with repeat offending, it does not, in the Tribunal’s view, mean that the offending is not very serious. This may also be said of the Applicant’s decision to end communications with the child persona and close the fake Facebook account of his own volition.

37. However, with respect to the Applicant’s submission that the age of the child persona and the extent of the communications lessened the seriousness with which the offending should be viewed, in the Tribunal’s view the offending should not be regarded as less serious merely because a child was 15 years of age rather than 13 years of age. The offence is that the child is ‘under 16’ and it is not for the Tribunal to speculate as to the relative damage done to a child of 13 as opposed to one of 15. The purpose of the offence is to protect children under a certain age, 16, from certain types of behaviour from which the parliament has determined they should be protected. This is particularly the case where there is no question as to the significant age difference of the offender and the child and where the offender themselves is unquestionably an adult. Where the legislature considers that age categories are appropriate (in terms of the relative seriousness of the offending) those are reflected in the offences. For example s 204B(3) of the Criminal Code (WA) defines a set of offences relating to children under 13 years of age which carries a higher penalty than the same offences in s 204B(2) which relate to children under

    
    

    16 years of age.

1. Her Honour goes on to note the paragraph (at [75]-[79]):

   Should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visas applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration.

   …

   The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such cases, the decision maker would depart from the relative ascription of weight for which cl 8(4) “generally” provided, as he or she is permitted to do.

2. Justice Stewart summarises the “community expectations” as expressed in the Direction as follows (at [100]):

   Non-citizens will obey Australian laws while in Australia;

   It may be appropriate to refuse a visa application were noncitizen has breached, or where there has is an unacceptable risk that they will breach, the expectation that they will obey the law or were they have been convicted of offences in Australia or elsewhere;

   In a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted the visa…

   His Honour goes on to state that (at [101]):

   Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”

3. In practical terms and having regard to the authorities, 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 No. 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. Further, Direction No. 79 provides that particular crimes or those committed against particular victims will be regarded as “serious”[37] or are to be “viewed very seriously”.[38] 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.

   [37] See for example Direction No.79 paragraph 13.1.1(1)(c).

   [38] See for example Direction No.79 paragraph 13.1.1(1)(a) and (b).

4. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.

5. However, as the Applicant submitted, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.

6. As noted above, Direction No. 79 provides that certain crimes are to be considered “serious crimes”. The Applicant’s sexual crimes are to be viewed “very seriously”. The Applicant’s violent crimes against his estranged wife are also to be viewed very seriously. The Tribunal accepts the Respondent’s submission that the Australian community expects that the Applicant’s visa can, and should, be cancelled in such circumstances. In the Tribunal’s view, the offences in the present case, which by operation of Direction No. 79 are to be viewed as very serious offences, are such that the Australian community would expect that the Applicant not hold a visa. This is the community expectation which is “deemed” by the Government.

7. The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s visa.

8. Although the expectations of the Australian community will weigh against the Applicant with respect to serious crimes the Tribunal must, in the exercise of its discretion, decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. Having regard to the relevant authorities and to the particular circumstances of the Applicant’s case, the Tribunal finds that the expectations of the Australian community weigh heavily against the revocation of the cancellation decision.

   Other considerations

9. Paragraph 14 of Direction No. 79:

   (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):

   (k)International non-refoulement obligations;

   (l)Strength, nature and duration of ties;

   (m)Impact on Australian business interests;

   (n)Impact on victims;

   (o)Extent of impediments if removed.

10. The relevant considerations that appear to arise on the material before the Tribunal are the strength, nature and duration of the applicant’s ties to Australia, impact on victims and the extent of any impediments if removed.

    International non-refoulement obligations

11. The material before the Tribunal did not raise any issues of non-refoulement, and consequently, paragraph 14.1 of Direction No. 79 is not applicable.

    Strength, nature and duration of ties

12. Paragraph 14.2(1) of Direction No. 79 provides:

    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).

13. Relevantly, paragraph 6.3(5) of the Principles section of Direction No. 79 states:

    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.

14. Additionally, paragraph 6.3(7) of the Principles section of Direction No. 79 states, in part:

    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. The Applicant contends that he has been a resident in Australia for the majority of his adult life and should be afforded a higher level of tolerance with respect to his criminal conduct (citing Direction No. 79 para 6.3(5)). The Applicant submitted a number of third party supporting statements including from family and friends (see A7-A10 and G19-G22). The Applicant contends that he has strong family ties in Australia including his wife and son who are Australian citizens and his cousin who is here on a student visa and who testified in support of the application (R2, G12, page 63; A10). He submits that he has strong social connections in Australia including having worked here continuously since arriving him Australia (prior to his imprisonment) including running his own business (R2, G11, page 37). He was strongly supported by a number of friends who are permanently resident in Australia including Mr Putto and his family and Ms Gurreebun and her family.

16. The Applicant also contends that his immediate family would suffer financial and emotional hardship if his visa cancellation is not revoked (A1, page 8, page 64). The Applicant also contended that he had debts in Australia including to the Australian Taxation Office and if permitted to remain in Australia he will be able to obtain employment to pay off those debts (A1, page 8-9, para 65). No details of these debts were provided.

17. The Respondent conceded that the Applicant has ties to this country, and that they are likely to be reasonably strong albeit not to the extent that they should outweigh the protection and expectations of the Australian community.

18. The Applicant has been ordinarily resident in Australia since arriving in 2008 at the age of 26. His wife and son reside here. His cousin is here on a student visa. The rest of his family are in Mauritius. While it is clear from the nature of the Applicant’s offences that his marriage has not always been a harmonious relationship. However, notwithstanding their plans to divorce, it was also clear from the testimony of the Applicant’s estranged wife that he has strong family support in Australia. Further, it was evident from the Applicant’s own testimony and the material before the Tribunal that he has a close relationship with his son. The Tribunal accepts that the Applicant has strong family ties in Australia and places weight on those ties.

19. While the Applicant began offending a few years after arriving in Australia, in 2010, which was nearly three years after arriving in Australia, the Tribunal did not consider those offences to be serious and notes there was a significant gap in offending (7 years) before the Applicant reoffended more seriously. In such circumstances the Tribunal does not regard that paragraph 14.2(1)(i) of Direction No. 79 applies to lessen the weight to be given to his ties to Australia.

20. The Tribunal accepts that the Applicant has undertaken regular employment while in Australia, including running his own business. Notwithstanding his two stealing offences in 2010, the Tribunal is satisfied he was making a generally positive contribution to the Australian community prior to the escalation in his offending in late 2017. The Tribunal accepts that there are a number of community organisations and individuals offering active support for the Applicant and his family, including counselling support services (Holyoake) and accommodation and financial support (Mr Puttoo and his family). The Tribunal places weight on the community support for the Applicant.

21. The Tribunal accepts that his immediate family (his son and estranged wife) would suffer some financial and emotional hardship if his visa cancellation is not revoked. However the Tribunal notes that Ms ZLSM I employed in the public service and is undertaking graduate study. She has been supporting herself and the Applicant’s son since he went to prison and while the Applicant’s removal might limit his capacity to financially contribute to raising his son in the future his estranged wife and child’s financial position would remain as it has been for the past two years. As noted above, Ms ZLSM did not suggest she was financially dependent on the Applicant nor did she suggest she and he son would suffer financial hardship if the Applicant were removed, though she did indicated she would like the Applicant to stay for the child’s sake and to assist with his upbringing.

22. The Tribunal accepts that the Applicant has good employment prospects in Australia based on his past employment history and that, to the extent he has debts here, that he may be better placed to pay those off in Australia rather than Mauritius. However, the Tribunal considers these considerations may more properly, or at least, equally be considered in the extent of impediments if he is removed.

23. The Tribunal accepts that the Applicant has been in Australia for a significant amount of time, the majority of his adult life to date, and has made a generally positive contribution to the community whilst here. However, other than his links to his family and friends, there was little other evidence of involvement with or support for community activities while he has been in Australia. He submitted that his major tie to Australia is through his estranged wife and son and, to a lesser extent, his friends. He testified that he is estranged from his family in Mauritius and this makes his ties to Australia more important. The Tribunal accepts that the Applicant’s family ties are to Australia. The Tribunal also accepts that as the Applicant has limited family, his friends have become ‘like family’ to him and they will also suffer emotionally if he is removed from Australia. The Tribunal notes however, that all the Applicant’s close friends who testified are Mauritian. Those who travel home regularly indicated they would visit the Applicant in Mauritius. This may lessen the emotional hardship they are likely to suffer from separation.

24. Having regard to the all the Applicant’s circumstances, the Tribunal considers that his ties to Australia and in particular his ties to his wife, child and close friends weigh in favour of revocation of the cancellation of his visa.

    Impact on Australian business interests

25. Paragraph 14.3(1) of Direction No. 79 provides for the consideration of the:

    (1) Impact on Australian business interests of the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight when non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

26. The Applicant did not make any specific submissions with regard to any impact on Australian business interests of a decision not to revoke the cancellation of the Applicant’s visa. However, the Applicant submitted that he has economic ties in Australia having always been employed while living in Australia, including through running his own cleaning business, warehousing and freight logistics (A1, page 8, para 63).

27. While the Tribunal accepts that the Applicant a strong employment history including running his owning cleaning business there is no evidence before the Tribunal that non-revocation of the cancellation of his visa would have a detrimental impact on Australian business interests. The Tribunal notes that the Applicant hasn’t been running his business since some time prior to entering prison and there is no evidence he employed any other people in the business. There is also no evidence that any employment link he has (if any) with prior employers such as would indicate non-revocation of his visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

28. Having considered the circumstances of the Applicant, the Tribunal does not regard this this to be a relevant consideration in the exercise of its discretion. Accordingly, the Tribunal places no weight on this consideration.

    Impact on victims

29. Under the heading “Impact on victims”, paragraph 14.4(1) of Direction No. 79 provides for the consideration of the:

    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizens criminal behaviour, and the family members of the victim or victim is aware that information is available and the noncitizen being considered for revocation has been afforded procedural fairness.

    275.The Tribunal heard directly from a victim of the Applicant’s offending regarding the impact of a decision not to revoke the cancellation of the Applicant’s visa on her and her family, specifically her young son (paragraph 14.4(1) of Direction No. 79).

30. The Applicant submitted that the victim, the Applicant’s wife, wanted him to remain in Australia for the sake of their son (R2, G19, page 77; Transcript, 9/1/20, page 62; A2, page 6). The Applicant submitted that (A1, page 9, para 67):

    the Tribunal should place great weight on [Ms ZLSM’s] evidence. She is an educated and mature individual who holds a responsible job with a law enforcement organisation [omitted]. She is in an excellent position to form sound judgement on whether the applicant should be permitted to remain in Australia.

31. The Respondent submitted that the Applicant’s estranged wife was not the only victim of his offending. However, the Respondent accepted that the Applicant’s estranged wife had expressed the view that she would like him to remain in Australia, in the interests of their son. The Respondent accepted that a decision not to revoke may have an adverse impact on his estranged wife, in so far as the Applicant’s removal may be contrary to their son’s best interests. Accordingly, the Respondent conceded this consideration should be afforded some weight, noting that it is (factually) linked to the primary consideration of the best interests of the Applicant’s minor child.

32. The Tribunal places weight on Ms ZLSM’s evidence and her judgement that it is in her son’s best interests for the Applicant to remain in Australia. As such the Tribunal accepts Ms ZLSM’s assessment that non-revocation of the cancellation of the Applicant’s visa would impact on her and her family negatively. Those impacts would include a limitation on the prospect of the Applicant providing financial support for her and her son and the emotional support that her son would receive through his relationship with his father. However, the while the Applicant suggested to the delegate that Ms ZLSM would suffer ‘financial and emotional breakdown’ (R2, G11, page 53) Ms ZLSM’s evidence did not suggest this was the case. Rather, the Tribunal understood her to have moved on from the relationship but continuing to support the Applicant’s relationship with the child in the child’s interest.

33. Having regard to all the evidence, the Tribunal finds that a decision not to revoke the cancellation of the Applicant’s visa would impact negatively on the victim and her family. Accordingly, the Tribunal regards that this consideration weighs strongly in favour of the revocation of the decision to cancel the Applicant’s visa.

    Extent of impediments if removed

34. Paragraph 14.5(1) of Direction No. 79 provides:

    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:

    (c)The non-citizen’s age and health;

    (d)Whether there are substantial language or cultural barriers; and

    (e) Any social, medical and/or economic support available to them in that country.

35. The Applicant submitted that he does not have any substantial ties in Mauritius as his family has not supported him rolling his convictions and he has not had any contact with other people in Mauritius since coming to Australia. He has not returned to Mauritius since arriving in Australia in 2008. The Applicant submitted he would have difficulty finding employment and accommodation in Mauritius and would not be able to earn as much money as he could in Australia due to lower socio-economic conditions in Mauritius. He submitted that this would limit his capacity to contribute to his son’s upbringing and, as noted above, to meet debts in Australia. He would have difficulty communicating with his son to time difference. Further, the Applicant submitted that he has suffered from severe depression in the past and his mental health would be adversely affected if you were forced to leave Australia and be separated from his son (A1, page 9, para 68-70).

1. The Respondent contends that this consideration should be afforded minimal weight in favour of revocation. The Respondent submitted that the Applicant arrived in Australia as a mature adult, and has spent the majority of his life in Mauritius. Accordingly, there are no substantial language or cultural barriers to his return. The Respondent accepted that the Applicant will experience significant emotional hardship being separated from his son and through re-establishing himself in Mauritius. However, he will have access to the services that are generally available to citizens of Mauritius. Moreover, he has transferrable skills, having worked in a variety of positions in Australia, such as workshops, warehouses and as a cleaner. The Applicant is also unlikely to be the subject of sex offender reporting obligations in Mauritius, which he is subject to in Australia as a result of his offending. Further, the Respondent submitted that the Applicant has access to social support in Mauritius through the connections and family of his network of friends in Australia who indicated in testimony they would provide whatever support they could to the Applicant were he forced to return to Mauritius.

2. The Respondent contended there was no medical evidence to support the Applicant’s claim to have suffered severe depression requiring hospitalisation and that this would present a challenge for him if returned to Mauritius. The Respondent submitted that the medical evidence with respect to the Applicant’s voluntary admission to St John of God, Midland in June 2017 did not involve a diagnosis of severe depression. Further the Sentencing Judge’s comments made no mention of any mental illness diagnoses.

3. As indicated earlier, Tribunal agrees with the Respondent’s submissions that while there is expert evidence in support of a conclusion that the Applicant may have been suffering undiagnosed depression at the time of his offending there is no evidence of a diagnosis of severe depression including in the material related to his voluntary admission to St John of God in June 2017. There is, however, some evidence in the prison medical records of the Applicant presenting as depressed and being reluctant to take anti-depressants (A5, page 8). Further, in his submission to the delegate he indicated he had no diagnosed medical or psychological issues (R2, G11, page 56) though he later mentioned his broken wrist and diagnosis of ‘severe depression’.

4. Given the psychological evidence at the hearing the Tribunal accepts that depression may have been a factor in the Applicant’s prior offending, however the Applicant claims to have undertaking voluntary counselling prior to going to prison and in detention. It is clear from the notes related to his treatment in detention that managing mood and depression were a factor in his treatment. In any event there is no evidence to support the Applicant’s contention that he has suffered severe depression in the past or that he would so suffer in the future if returned to Mauritius. However, the Tribunal accepts based on his past history that he may become depressed and may suffer depression as a result of the stressors or removal and separation from his son and other close friends and family.

5. The Tribunal notes that the Applicant grew up in Mauritius and is familiar with its language and culture. These issues are not likely to amount to substantial impediments to his return and resettlement.

6. He is relatively young and on the evidence before the Tribunal is in generally physical health. Although he indicated to the delegate he had no medical issues there is evidence that he suffers from asthma and takes medication for that (1-2 puffs a couple of times a week) (A5, page 9),. There is also evidence he broke his wrist while in prison which required surgery for the insertion of pins and may require further treatment at some time in the future (A5, page 7; A12, page 63) The Tribunal accepts the Applicant has some ongoing medical needs, however there is no evidence that he would not have access to medical care of a standard available to Mauritian citizens or that health care in Mauritius would be unable to meet his treatment needs.

7. While there is no evidence the Applicant has been diagnosed with severe depression, the Tribunal accepts that he may suffer emotion and financial hardship on his return to Mauritius and that his mental health may suffer as a result. However, again there is no evidence before the Tribunal that the Applicant would not be able to access medical services including mental health services in Mauritius of a standard which would be available to citizens of Mauritius.

8. Further, while the Tribunal accepts that the Applicant may not be able to earn the same income in Mauritius that he could in Australia, the Tribunal regards that the Applicant’s employment experience in Australia would assist him in obtaining employment in Mauritius. In this regard the Tribunal notes that the Applicant was working in Mauritius prior to coming to Australia as a bus conductor and he has had a range of jobs in Australia including as a cleaner, working in logistics and having a forklift licence.

9. The Applicant has parents and two sisters who are living in Mauritius. The Tribunal accepts his evidence, which was supported by Ms ZLSM, that he is estranged from his immediate family in Mauritius. However, the Applicant did indicate that he talks to one of his sister’s occasionally (Transcript, 9/1/20, page 23) and he is in regular contact with his cousin in Australia whose family is also in Mauritius.

10. Further, on the evidence before the Tribunal the Applicant’s friends in Australia, including Mr Puttoo and Ms Gurreebun, would provide him with a potential social network the in Mauritius. In this regard the Tribunal notes that both Mr Puttoo indicated that he would ask his families to provide assistance to the Applicant where he to need it (Transcript, 10/9/20 page 5). Ms Gurreebun indicates that she intends to travel back to Mauritius on visits in the future and that she would visit the Applicant when she did (Transcript, page 72). The Applicant’s cousin indicated he intends to return to Mauritius on the expiration of his student visa. He indicated that he would provide support to the Applicant when he returns to Mauritius and that he may be in a position to ask his extended family to do the same (Transcript, 10/1/20, page 11).

11. The Tribunal accepts that the Applicant has a close, family like relationship with Mr Puttoo and his family and that both the Applicant and Mr Puttoo (and his family) are likely to suffer emotional hardship if the Applicant is removed to Mauritius. Further the Tribunal notes that Mr Puttoo had offered to provide housing and other support to the Applicant on his release from detention. The Tribunal accepts that this level of support would not be readily available to the Applicant in Mauritius and that he would suffer hardship as a result.

12. The Applicant also submitted that he may face some social stigma in Mauritius due to his crimes. This is the reason he is estranged from his family. The Tribunal accepts there may be some social stigma if the Applicant’s offending history is known publicly. This is a problem, however, the Applicant would also face in Australia and there is no evidence before the Tribunal to suggest the Applicant would face any particular discrimination or unfair treatment in Mauritius due to his offending. For example, the Tribunal notes that in Australia the Applicant’s offences make him a reportable offender. There is no information he would be a reportable offender in Mauritius. As such the Tribunal does not regard the embarrassment and social stigma which may attach to the Applicant’s crimes as a significant impediment to his return to Mauritius.

13. The Tribunal notes that the principal hardship for the Applicant in returning to Mauritius will be the separation from his son. The Tribunal accepts that it will be more difficult for the Applicant to contact his son due to the distance to Mauritius and in particular the time difference. The Tribunal also accepts that it will be challenging for the Applicant to maintain a close relationship with his son from such a significant distance and that the Applicant, his son and to a lesser extent his estranged wife are likely to suffer emotionally as a result. However, the Tribunal notes that Ms ZSLM indicated she intends to travel to Mauritius the least once every two years and that she would visit the Applicant and facilitate contact with his son on these visits.

14. On balance and having considered all the Applicant’s circumstances, the Tribunal considers that the Applicant will face some impediments in re-establishing himself if returned to Mauritius. The most significant impediment for the Applicant would be separation from his son. The Tribunal considers that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. However, as the impediments are not insurmountable they do not weigh strongly in the balance of considerations, noting that the son’s interests have been given their own consideration and weight.

    CONCLUSION

15. Direction No. 79 provides some guidance as to how a decision maker should apply the primary and other considerations, and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:

    (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.

16. The Applicant does not pass the character test under s 501(6) of the Migration Act.

17. The Tribunal has 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.

18. In relation to the first primary consideration, the Tribunal finds that:

    ·the nature and seriousness of the Applicant’s conduct weighs strongly in favour of the Tribunal refusing to revoke the cancellation of the visa (paragraphs 13.1 and 13.1.1 of Direction No. 79).

    ·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 visa (paragraphs 13.1 and 13.1.2 of Direction No. 79).

    ·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 visa.

19. The Tribunal finds that the best interests of the Applicant’s minor son (paragraph 13.2 of Direction No. 79) weighs heavily in favour of the revocation of the cancellation decision. The best interests of Mr Puttoo’s children weigh moderately in favour of the revocation of the cancellation decision. The Tribunal places no weigh on the interests of Mr Gurreebun’s child who lives in another state and has had no contact with the Applicant.

20. With respect to the expectations of the Australian community (paragraph 13.3 of Direction No. 79), the Tribunal finds that this consideration weighs strongly in favour of the non-revocation of the decision to cancel the Applicant’s visa.

21. In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No. 79) weigh strongly in favour of revocation.

22. Considering the impact of non-revocation on the victim of the Applicant’s offending (paragraph 14.4 of Direction No. 79), the Tribunal finds that a decision not to revoke the cancellation of his visa would impact negatively on the victim and her family. The Tribunal finds this consideration weighs strongly in favour of the revocation of the decision to cancel the Applicant’s visa.

23. In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No. 79) weigh strongly in favour of revocation.

24. The Tribunal has also found that there are impediments to the Applicant’s removal to Mauritius (paragraph 14.5(1) of Direction No. 79). This factor weighs in favour of the revocation of the cancellation decision. However, as the impediments are not insurmountable they do not weigh strongly in the balance of considerations.

25. The Tribunal has given consideration to the impact on Australian businesses and found that factor to be neutral in the Applicant’s circumstances. The issue of non-refoulment did not arise for consideration in submissions or on the information before the Tribunal.

26. The Tribunal accepts that non-revocation of the cancellation of the Applicant’s visa will have a detrimental effect on his son and on their relationship. In the Tribunal’s view this is extremely unfortunate. However, the Tribunal has found the Applicant’s offending to be very serious. The types of offences the Applicant has been convicted of can cause significant harm to vulnerable member of our community, including children. This is why those offences are treated so seriously by the legislature, the courts and in the terms of the Direction. The Tribunal cannot overlook the risk that the Applicant will reoffend and the harm that would result if he did, or the Australian community’s expectation that non-citizens who commit such offences forfeit the privilege of remaining in Australia.

27. On balance, and for the reasons outlined above, 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 minor children, and the other considerations which weigh in favour of the revocation of the cancellation decision.

28. 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.

    DECISION

29. The Reviewable Decision, being the decision of the Respondent’s delegate dated

    
    

    19 July 2019 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 310 paragraphs are a true copy of the reasons for the decision herein of Member Simone Burford

......................... [sgd]...........................................

Associate

Dated: 21 January 2020

Date(s) of hearing:	9-10 January 2020
Counsel for the Applicant:	David Blades
Solicitors for the Applicant:	Chisholm Law
Counsel for the Respondent:	Arran Gerrard
Solicitors for the Respondent:	Australian Government Solicitors