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Administrative Appeals Tribunal of Australia |
Last Updated: 31 August 2022
HBMH and Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs (Migration) [2022] AATA 2825 (4 August 2022)
File Number(s): 2022/4005
Re: HBMH
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: L M Gallagher,
Member
Date: 04 August 2022
Place: Perth
The Reviewable Decision, being the decision of the Delegate dated 12 May 2022, not to revoke the mandatory cancellation of the Applicant’s Class BB (subclass 155) Five Year Resident Return visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
............[Sgd]............................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – sexual offence against a child – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 70-year-old man who came to Australia as a 9-year-old – reviewable decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975
(Cth)
Migration Act 1958 (Cth)
CASES
BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Hambledon v Minister for Immigration & Border Protection [2018] FCA 7
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121
LDDW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 255
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs 
[2021] AATA 1143 
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pinder and Minister for Home Affairs [2019] AATA 1398
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration & Border Protection [2014] FCAFC 673; (2014) 225 FCR 424
TGXY v Minister for Home Affairs [2019] AATA 757
WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship
and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation
Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20
December 2018)
Minister for Immigration, Citizenship and Multicultural
Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and
revocation of a mandatory cancellation of a visa under s501CA (08 March 2021)
– paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(5), 6, 7, 8,
8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.2,
8.1.2(1), 8.1.2(2), 8.3, 8.4, 9, 9.1,
9.2, 9.3, 9.4.
Explanatory Memorandum to the Migration Amendment (Character
and General Visa Cancellation) Act 2014 (Cth)
REASONS FOR DECISION
L
M Gallagher, Member
04 August 2022
APPLICANT'S IDENTITY
BACKGROUND FACTS
APPLICANT'S OFFENDING
|
Court
|
Court Date
|
Offence
|
Court Result
|
|---|---|---|---|
|
Perth District Court of Western Australia
|
15 Dec 2020
|
Indecently Deals with a Child Over 13
Under 16
|
Imprisonment: 12 Months concurrent
from 15 Dec 2020
|
|
Perth District Court of Western Australia
|
15 Dec 2020
|
Indecently Deals with a Child Over 13
Under 16
|
Imprisonment: 15 Months concurrent
from 15 Dec 2020
|
|
Perth District Court of Western Australia
|
15 Dec 2020
|
Indecently Deals with a Child Over 13
Under 16
|
Imprisonment: 6 Months concurrent
from 15 Dec 2020
|
|
Perth Magistrates Court
|
2 June 2020
|
Breach of protective bail conditions
|
Suspended fine of $350
|
|
Midland Court of Petty Sessions
|
26 Nov 1990
|
Driving under the influence
|
Fined $1000 and licence cancelled; disqualified for 2 years
|
|
Midland Court of Petty Sessions
|
10 June 1980
|
Driving under the influence
|
Fined $250; 6 months disqualification
|
PRESENT PROCEEDINGS
ISSUES
LEGISLATIVE FRAMEWORK
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
(6) For the purposes of this section, a person does not pass the character test if:(a) the person has a substantial criminal record (as defined by
subsection (7)); or
...
(Original emphasis.)
For the purposes of the character test, a person has a substantial criminal record if:...
(c) the person has been sentenced to a term of imprisonment of
12 months or more; or
...
(Original emphasis.)
Power to revoke cancellation decision
(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. 90
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens 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.(5) Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
(1) protection of the Australian community from criminal or other serious conduct;(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):(a) international non-refoulement obligations;(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i) strength, nature and duration of ties to Australia;(ii) impact on Australian business interests.
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant also called the following witnesses to give evidence:
(a) His sister (JF);(b) His brother-in-law (NF);
(c) His friend (DG);
(d) His friend (DI);
(e) His friend (RS); and
(f) An expert witness, psychologist Dr Lorraine Sheridan (Dr Sheridan).
(a) Applicant's Statement of Facts, Issues and Contentions (SFIC) filed on 17 June 2022 (A1);(b) JF Witness Statement dated 16 June 2022 (A2);
(c) NF Witness Statement dated 16 June 2022 (A3);
(d) DI Witness Statement dated 15 June 2022 (A4);
(e) RS Witness Statement dated 16 June 2022 (A5);
(f) DG Witness Statement dated 6 December 2021 (A6);
(g) Annexure to DG Witness Statement filed on 17 June 2022 (A7);
(h) MD Statutory Declaration dated 15 June 2022 (A8);
(i) PJ Statutory Declaration dated 17 June 2022 (A9);
(j) AB Statement dated 15 June 2022 (A10);
(k) CD Statement dated 15 June 2022 (A11);
(l) Parole Order dated 28 June 2021 (A12);
(m) Medical Records of Glen Forrest Medical Centre (A13);
(n) Medical Records of Bayside Medical Centre (A14);
(o) Medical Records of Northam Hospital (A15);
(p) Report of Dr Lorraine Sheridan, Psychologist, dated 9 June 2022 and Letters of Instruction (2) dated 31 May 2022 (A16);
(q) Applicant's signed Witness Statement dated 21 June 2022, with annexures (A17);
(r) Applicant's Submissions in Reply dated 4 July 2022 and List of Authorities (A18);
(s) Text Message to DG (A19);
(t) Respondent's G Documents, being a 195-page set of documents provided under s501G of the Migration Act numbered G1 to G37 (R1);
(u) Respondent's Summons Bundle, being a 46-page set of documents numbered 1 to 3 (R2); and
(v) Respondent's SFIC filed on 30 June 2022 (R3).
The Applicant
(a) He has no memory of the United Kingdom and has no family there.[34](b) He enjoyed a close relationship with his four children while they were growing up.[35]
(c) It never occurred to him that he was not an Australian citizen, having come to Australia at a young age and serving in the Australian Army.[36]
(d) He worked as a butcher for about 30 years and owned a number of butcher shops.[37] He retired from butchering because his hips were worn out and required replacements in 2005 and 2009.[38] He has also worked for a number of different companies.[39]
(e) From the time his grandchildren were born,[40] and of those who were living in Australia,[41] he saw them relatively regularly, say, once per month,[42] taking them lollies and giving them money for the birthdays and Christmas.[43]
(f) He is very close with his sister, JF and in his adult life enjoyed his regular visits with her and his brother-in-law, NF.[44] He lost contact with JF from the time he was charged until the time he was transferred to Yongah Hill.[45] He said his relationship with his eldest sister, LF, has been patchy since their stepmother passed away.[46]
(g) In 2018 he suffered a heart attack[47] and underwent surgery.[48] His daughter EF assisted him in paying his rent and bills while he was in hospital for a month or so.[49]
He provided EF with the relevant codes and passwords to enable her to do this.[50]
He stayed with EF the night he was discharged from hospital and EF and her husband took him home the next day.[51]
(h) When the police showed up at his door in March 2019 to charge him with the offences, he was shocked,[52] gutted, and surprised;[53] he did not know what they were there for and told them it was ridiculous, outrageous nonsense he never touched [the victim] "down there" and it never happened.[54] He said he was taken to the Perth watch house that evening and was released on bail the next day.[55]
(i) He said that after he was arrested he found that $25,000 went missing from his bank account.[56] He said that more money went missing after this time,[57] and he eventually recovered the entire amount from his bank.[58]
(j) Having denied the offending conduct took place, he did not appeal his sentence on the advice of his lawyer.[59] The Applicant said his lawyer never told him that after prison, he could face deportation.[60]
(k) While in prison, he would visit the library,[61] attend Alcoholics Anonymous and Narcotics Anonymous meetings "just to get the numbers up" and he undertook computer courses[62] and a workplace safety course.[63] He said that he did not complete any rehabilitation courses in respect of his indecently dealing with a child offences, as he was not required to.[64]
(l) He was also under the care of the prison medical centre for his heart condition.[65]
(m) He did not have access to his mobile phone while in prison, however it was returned to him when he was transferred to Yongah Hill,[66] where he called his sister, JF, and a number of his friends.[67]
(n) In August 2021, about a week after he arrived at Yongah Hill, he fell on a wet floor, landing on his right side.[68] He was taken to Northam Hospital and then transferred to Royal Perth Hospital to treat a staph infection in his leg.[69] He has suffered further complications with his wound since then[70] and has his wound redressed at Northam Hospital three times per week.[71] At Yongah Hill, he has a carer attend for four hours each day to assist him with showering and dressing, as he cannot do these tasks on his own.[72]
(o) He has contributed to the two bowling clubs (of which he has been a member over the last 12 years) by helping with the drinks cart, collecting eggs from egg farms for the clubs, bringing fish caught through the fishing club to members of the bowling clubs helping different members to move to a new house, to mow their lawns and to help them if they are sick.[73]
(p) He can't bear to think about what would happen if he weren't allowed to remain in Australia[74] and it would "kill"" his sister JF.[75] He treasures his relationship with JF[76] and would be deeply hurt if he were to be separated from her.[77] He would be unable to buy a house in the UK[78] and would need a carer to assist with activities of daily living.[79]
(q) If he is released back into the community, he would increase his visits to his bowling clubs, his fishing club and other social activities.[80] He accepts that those clubs are open to members of the public without any age restriction on who can attend.[81]
...hard as it will be, to no longer have any social contacts [sic] with my grandchildren. However, if any do so choose to see me personally or on a supervisory basis, I would always welcome their company. How could I not do otherwise?
I have found that the accusations made against me, my conviction and now incarceration extremely difficult to deal with and believe on [sic] retrospect, that much of it was due to a gross misunderstanding on my granddaughter's part, but also promoted by my daughter [EF]. Regretfully, behind all of these memories of a particularly nasty family dispute...
(a) he accepts that the courts found his granddaughter was the victim; and(b) that he was convicted of the offences relating to her;[98]
but he has not done anything wrong,[99] hence his denial of his offending to Dr Sheridan and to his friends,[100] and his view that:[101]I believe that the chances of me 're-offending' are non-existent, as I will be putting a marked social-distance between myself and my grandchildren. I also intend to increase my various bowling club and other social interests so as not to feel the pangs frequently associated with living alone.
JF (the Applicant's sister)
(a) She described the Applicant as a "really good brother" to her and that they had been very close when they were children.[122](b) After being in irregular contact as young adults due to distance,[123] she re-established her relationship with the Applicant about 15 years ago when they moved nearer to each other.[124] During this time she and the Applicant would see each other every fortnight or so.[125]
(c) She did not look after the Applicant when he suffered his heart attack in 2018 because she did not know this had occurred and she assumed the Applicant had EF to look after him.[126]
(d) In 2019, the Applicant called her (and her husband, NF) and told them that he'd been charged with “interfering with”[127] or touching his granddaughter.[128] JF said that this is the extent of what the Applicant told her in respect of the charges.[129] JF said the Applicant had denied the offending conduct.[130]
(e) She did not see the Applicant at all after he was charged, she didn't even know what had happened to him[131] and he had basically just disappeared.[132] She did not speak to him for the seven and a half months he was in prison.[133]
(f) She then heard he was in prison or the hospital,[134] tried to reach him by telephone[135] and the Applicant eventually called her from the detention centre,[136] which was "such a relief."[137]
(g) She does not believe the Applicant committed the offences against his granddaughter for which he was convicted[138] or that he would offend (or reoffend) in the future.[139] She said her belief is based on having known the Applicant all her life.[140]
(h) If the Applicant had to return to the UK, JF would be devastated[141] and she does not really know how he would cope,[142] or if he would survive.[143] If the Applicant were permitted to stay, she would offer him whatever assistance he needed,[144] including providing meals and somewhere to live.[145]
NF (the Applicant's brother-in-law)
(a) He has a "pretty good" relationship with the Applicant, having known him for 47 years.[148] Prior to the Applicant's arrest, NF would see the Applicant "a fair bit."[149](b) At the time the Applicant had his heart attack, he and JF had not supported the Applicant as they didn't know the Applicant had suffered the attack.[150]
(c) When the Applicant went to prison, NF and JF lost contact with him because they did not know where he had gone.[151] He and JF have been in contact with the Applicant "just about every day"[152] that the Applicant has been in the detention centre.[153]
(d) NF is now aware that the Applicant was convicted of and jailed for molesting his granddaughter, which is the full extent of his understanding of what happened.[154]
(e) He is still of the view the Applicant is innocent,[155] that he would not offend (or reoffend) in future[156] and that returning to the UK would like a death sentence for the Applicant.[157] NF said his belief is based on the fact that he knows the Applicant "really well."[158]
(f) He will support the Applicant any way he can, as will the Applicant's friends from his clubs.[159] This support is not available to the Applicant in the UK as the Applicant does not know anyone there.[160]
DG, DI and RS (the Applicant's friends)
DG
DI
RS
Dr Sheridan (Psychologist)
The Static-99 score for [the Applicant] falls in the very low risk category. It is important to note that on the STATIC-99, the range of options are very low risk, below average risk, average risk, above average risk, or well above average risk. There is not a 'no risk' category and [the Applicant] is in the lowest category possible for this instrument......In conducting the assessment, both the actuary and clinical risk assessment would indicate that [the Applicant] is at low risk of reoffending and I would consider he poses no risk to the community. He stated that he will abide by orders and will not attempt to contact members of his family that the orders include.
I used a well-known and well supported tool, the Static-99 and he actually got a minus score on that, which is the lowest possible score. But, you know, these things are essentially just a bunch of variables... But we can never, never, never know for sure. Nobody knows for sure. I mean most people that do offend don't know themselves what they're going to do the next day. But ultimately I felt that his risk was low, not just because of the scores on the thing on the Static-99 but because of what he said. And also I took into account the fact that if he had the - any further deportations or gaol time hanging over him is a sort of [sic] Damocles threatening him.I got the impression he will be on his best behaviour for the rest of his life because - you know - he's 70, not 17 and I think he would be able to keep a lid on any form of risky offending.
...Risk can change over time but generally speaking he would be in the lowest category of risk possible. You know we'd never say never about anything or anybody.
(a) the PAI-Plus;(b) the Applicant's statutory declaration;[216]
(c) the sentencing remarks;[217]
(d) the Static-99 assessment tool;[218] and
(e) her interview with the Applicant, at which he consistently denied the offending took place.[219]
(a) The Static-99 is an actuarial tool, meaning that it simply scores 10 objective static, unchangeable, stable factors based around the offence characteristics.(b) The Static-99 does not require the Applicant to accept the charges, which is why she used it, along with it being the most established and recognised tool. She does not know if there are any other reliable assessment tools out there that would take this into account.
(c) She could not confirm if any of the variables considered the age of the victim.
(d) The position of trust the offender had in relation to the victim was not a variable, nor was the nature of the offending, the Applicant's apportionment of the blame on the victim's mother, any insight the Applicant may or may not have into his offending, the age of the offender when he first offended,[226] any rehabilitation or lack of rehabilitation the Applicant may have had since the offending or any aggravating features of the offending.
(e) She uses the PAI-Plus in conjunction with the Static-99 so that she can tap into a very large range of personality factors, plus the clinical interview. The Static-99 is a "relatively crude" assessment tool and would never be used alone.[227]
... Hanson (2006) found that the most commonly used actuarial risk tool for estimating sexual offender recidivism risk (Static-99) was only "moderately accurate in estimating relative recidivism risk in all age groups", citing Barbaree et al (2003) ...linear projection expected recidivism rates for all types of sexual offenders would decrease to virtually zero at age 70 years.Dr Sheridan said she would accept that age at release is the only factor in the Static-99 relating to age:
To the extent that if you're 70 years old you get a negative 3...
DR SHERIDAN: Because he only offended sexually against a family member. He has never offended sexually in the community. So it's reoffending - I probably should have put "within a family environment or an opportunistic family environment.'...
Ms JONES-BOLLA: A low risk of offending within the family circle?
DR SHERIDAN: Yes, and no risk to the broader community. That was absolutely my fault. I should have added a few extra words there to make that clearer.
...
Ms JONES-BOLLA: You would accept there's children in the community, wouldn't you, Dr Sheridan?
DR SHERIDAN: I would.
Ms JONES-BOLLA: And you would accept that - and this came out during HBMH's evidence today - that he plans on his release back into the community to attend a bowling club, a fishing club, and there might've been another bowling club mentioned there. He said that you had to be a member, but that there was no age restrictions on attending those clubs. So, presumably there'd be children at those clubs?
DR SHERIDAN: Yes. But due to the
Ms JONES-BOLLA: Are they not children in the community? ...
DR SHERIDAN: Due to the ...
...extreme trauma that he's gone through recently, that is why I think he is absolutely zero risk of offending against strangers in the community.
Ms JONES-BOLLA: But not when it comes to his own family?
DR SHERIDAN: I never say never. I never say never.
...
Ms JONES-BOLLA: If a person continues to deny that wrongdoing, is that indicative that they don't consider that they did anything wrong? It could be indicative of a lot of things.
DR SHERIDAN: There's not enough consistent or decent research to tell us about that. There's not enough evidence out there, because it's such a highly variable and dynamic issue. So that on its own couldn't tell us anything.
...
That variability itself, the issue of denial, that is a highly variable concept, generally speaking, which means that it's not been measured in any particular group of studies, which means that we can't take it into account as anything. It's not a predictor.
Ms JONES-BOLLA: Your conclusion in respect of those things that I've just put to you was essentially that the clinical interpretation required caution?
DR SHERIDAN: A little.
Ms JONES-BOLLA: Lastly, you have noted that he will abide - you noted in your report that he will abide by orders and not attempt to contact members of his family that the orders include?
DR SHERIDAN: That's right. At paragraph 37.
Ms JONES-BOLLA: But that is not consistent with his past behaviour, is it?
DR SHERIDAN: He provided a convincing account of how that was accidental.
...
in such cases we often see multiple attempts to contact, and this was just one, and then it stopped from there. So I think that was the bigger issue that I took into consideration, because I have no way of knowing whether it was a mistake or not. It sounded convincing to me.
Ms JONES-BOLLA: At page 26 there, that's a record of the breach of the protected bail condition. I'll just note that he was released on bail with those conditions on 12 February 2019. One month later on 12 March 2019 he contacted the protected person, and it wasn't a case that, you know, it was accidental, that it just rang once. What it says there is that the phone call went to message bank, in that he let it ring out until it went to the protected person's voicemail. That's the circumstances of that offence as set out in the statement of material facts, for which then he was subsequently convicted of breaching protected bail conditions. Does that in any way change your opinion that he will abide by orders, or that he stated that he would abide by orders - - -
DR SHERIDAN: No, because -
...
- the fear of deportation is a far bigger stick. So no, I wouldn't change anything.
- I mean, the fact that it rang out into the message bank, I didn't see any sneakiness there, and I put that into the context of trying to watch him speak to me during the interview using the technology, and he wasn't very good.
...
Ms JONES-BOLLA: So your conclusion that he's a low risk to his family is not premised on the fact that he would stay away from them, or it is premised on the fact that he would stay away from them?
DR SHERIDAN: That was premised on the fact that I believe he's a general low risk particularly - well, not particularly, anything, but yes, just general low risk. So yes, it doesn't - it's not reliant upon him having physical distance between any of them and himself.
(Emphasis added).
DISCRETION TO REFUSE TO GRANT THE VISA
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
(a) While the protection of the Australian community weighs against revocation, it is only to a minimal degree, given that the Applicant poses little to no risk to the community and he has very little history of offending in Australia.[237](b) The interests of the Applicant’s minor grandchildren are best served if he were allowed to remain in Australia.[238]
(c) Whilst the expectations of the Australian community weigh against revocation, little weight ought to be given to this primary consideration in circumstances where the Applicant has not taken the privilege of living in Australia for granted and given the length of time that the Applicant has spent in Australia, having arrived in Australia when he was six years old.
(d) The Applicant’s age and his poor health would be a significant impediment to his being returned to the UK and weighs in favour of revocation.
(e) The extent and depth of the Applicant’s links to the Australian community including JF and NF and his friends favours revocation.
(a) The protection of the Australian community consideration weighs heavily against revoking the Cancellation Decision, having regard to:(i) The nature and seriousness of the Applicant’s conduct, which the Respondent submitted ought to be viewed as very serious; and(ii) The risk to the Australian community, which the Respondent says falls squarely within the description in para 8.1.2(1) of Direction No. 90, which states that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable.
(b) The best interests of minor children also weighs in favour of not revoking the Cancellation Decision because it is not in their best interest to do so. The Respondent submitted that alternatively, if the Tribunal does find that it is in their best interest, any weight to be afforded to this is minimal and does not outweigh the other primary considerations.
(c) In respect of the expectations of the Australian community the parties are in agreement that the Australian community would expect that a person who has offended would not have the privilege of holding a visa, and where the parties disagree is that the Respondent submits that this consideration weighs heavily against revoking that Cancellation Decision.
(d) In respect of the other considerations:
(i) There is no impediment of significance and any difficulty the applicant may face being removed to his home country of the United Kingdom would be temporary such that this does not weigh heavily in favour of revocation, and it doesn’t outweigh the relevant primary consideration.(ii) In respect of the links to the Australian community, to the extent that the Tribunal places any weight on this consideration in favour of revocation it does not outweigh the relevant primary considerations which weigh heavily against revocation.
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:a) the nature and seriousness of the non-citizen’s conduct to date; andb) 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 8.1.1 of Direction No. 90)
(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 the following:a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
- with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) 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).
(Emphasis added).
...You’re the paternal grandfather of [the victim], who was 13 years old at the time of the time of each of these offences.
In count 1, on a date in August 2018, you were at your daughter and her husband’s home. Your [three grandchildren, being EF’s three children], were at home there with you. [The grandchildren] were home schooled, but their parents weren’t at home that day and so you were supervising them. That supervision included taking them to a writing course held at a nearby library.
On your return to the house after the course you [grandchild] was in another room and [the victim] was in the kitchen sitting on a chair next to you and showing you some books and videos which she’d taken out of the library.
You got up from your chair, walked over to her, bent down and put your hand into her pants, rubbing her on the vagina. [The victim] was not certain whether your hand went below her underpants and so I’m sentencing you on the basis that your hand did not touch her skin directly. You asked [the victim] if she liked you touching her there and she said it made her feel uncomfortable, at which time you took your hand out and said you wouldn’t do it again and told her not to tell anyone.
With respect to counts 2 and 3, on 4 February 2019 you collected your [grandchildren] and took them to your house where they were going to assist you by cleaning your house in return for $20 pocket money each.
While the children were there they were undertaking different tasks which you were directing and supervising. While discussing the vacuum cleaning you went alone into a spare bedroom with [the victim] when you hugged her, and in the course of hugging her squeezed and rubbed her breasts over her clothing. She said that it hurt her breasts and you stopped. So that’s the behaviour that constitutes count 2.
A second time, later, you were alone in the bathroom with [the victim], who was going to wipe down the bathroom surfaces, when you put your hand on her vagina over her clothes and patted her and/or rubbed her over her clothes. [The victim] was uncomfortable with this. You said to her words to the effect that one day she would ask you to touch her in that way, and that is the behaviour which constitutes count 3.
Your [grandchildren] were collected not long later by their mother from your house and a day or so after the second incident [the victim] disclosed to her parents that you had touched her on two occasions.
Now, the aggravating features of your offending is that you were her grandfather. You’re greatly older than her and you were in a relationship of trust with her, and further, that in [sic] each occasion [the victim’s] parents had trusted her to your supervision and care.
I’ve read [the victim’s] victim impact statement, and clearly this offending has had a profound and lasting effect on her.
...
Now, this is serious offending, [the Applicant], and it’s so serious that a sentence of imprisonment if the only appropriate sentence, because as you told the police, [he victim] was the grandchild to whom you were the closest. She was your favourite and you took advantage of her. You breached her trust in this offending.
You were left in charge of her on the first occasion at a time when she trusted you, and she trusted you not to offend again against her and so she didn’t say what had happened to her on that first occasion. In other words, she trusted you to keep your word that you wouldn’t do it again.
She did not welcome your actions and she was deeply confused by them. When you were again left in charge of her on the second occasion your persisted in touching her inappropriately on two occasions in two different rooms.
Now, I do accept that your offending was opportunistic – in other words, that you hadn’t set up a situation where you could touch [the victim] but you took the opportunity when it presented itself, and given that there were other children in the house on each occasion, it was brazen.
...
...on each occasion this offending involved a breach of trust, it was brazen, and you’ve shown no remorse or insight into your offending. It’s simply too serious to suspend the offending...
(Emphasis added).
(a) He accepts the offences for which he was convicted are of a sexual nature against a vulnerable member of the community and it to be viewed as serious.(b) However, given the sentence imposed was less than the maximum of 10 years, and even though the sentencing judge took the view that imprisonment was warranted, the Applicant’s offending was at the “lower scale of seriousness.”
(c) The Applicant has no convictions of a similar nature and his other driving and theft offences are “very minor,”, to which very little weight should be afforded.
(d) The Applicant was never formally warned about the consequences of his offending as it pertains to his migration status and had always considered he was an Australian citizen.
Mr ONG ...we have to understand it if HBMH denies the offences took place there’s nothing else he can say about them, except that they didn’t take place. And, therefore, he can’t actually express remorse. It would be an inconsistent thing for him to do so and to the extent that he doesn’t express remorse we would ask the tribunal to lessen some of the weight given to the seriousness of the offences and the risk of reoffendingMEMBER: Just rewind again and just say that last part again Mr Ong? Because - so you’re saying because HBMH continues to deny his offences it would be inconsistent to try and propose or submit that he is remorseful?
MR ONG: That’s right...the direction does say that offences of this nature are very serious. And so, the question is, how much weight ought to be given and we would submit that less weight should be given in favour of cancelling and ‑ ‑ ‑
MEMBER: And what’s that based on?
MR ONG: Well, just in the sense that the risk of the - even though the offence is serious, the risk to the community would be minimal if - in fact, I think, in Dr Sheridan’s evidence, it’s no risk to the community. So we’re talking about the protection of the Australian community and the nature and the seriousness of the conduct as being seen as very serious. And we would say that less weight should be given to this particular factor because the objective expert evidence is that there is no risk to the community.
(a) The indecently deals with a child over 13 under 16 offences were sexual crimes committed against a vulnerable member of the community.[246](b) The sentencing judge considered there to be aggravated features of the Applicant’s offending.
(c) The Applicant was sentenced to terms of imprisonment.[247] As noted by the sentencing judge, sentencing involving terms of imprisonment are the last resort in the sentencing hierarchy.[248]
(a) Paragraph 8.1.1(1)(a) – the parties agree and the Tribunal finds that the type of crime committed by the Applicant, being a sexual crime, is to be viewed seriously.
However, in the Applicant’s case, the Tribunal is hesitant to fully recognise his acceptance of his offending conduct as “very serious”[251] as anything more than a formal acknowledgement that Direction No. 90 states this must be so in the case of sexual crimes,[252] where the Applicant referred to the charges related to his offending as “crap,” “all bullshit” and a “trumped up charge.”The Applicant sexually offended against the victim, his granddaughter, a vulnerable member of the community and a child in his care, while her siblings were with her in the home and no other adults other than the Applicant were present.
After the first instance of indecent dealing, the Applicant told her he would not do it again and told her not to tell anyone. The victim trusted the Applicant and did not tell her parents until he offended against her again.
The reactive words used by the Applicant to describe his charges, do not, in the Tribunal’s view, sit comfortably with his submission that he accepts that he has committed a very serious offence.
(b) Paragraphs 8.1.1(1)(b) and 8.1.1(1)(c) – The conduct relating to the Applicant’s offence for which he ultimately was sentenced to 33 months imprisonment:(i) includes conduct that formed the basis of the finding that the Applicant did not pass the character test; and(ii) is, in the Tribunal’s view probative of the seriousness of that offending conduct,
(c) Paragraph 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f) and 8.1.1(1)(g) - the Tribunal has considered these sub-paras of Direction No. 90 and finds that the Applicant’s conduct and the present factual matrix does not come within their scope.
No substantive arguments were put by the parties in relation to these matters.
Australian society abhors the sexual exploitation of children and insists that criminal sentences are sufficiently strong to protect children, punish offenders, and powerfully denounce such conduct. The legislature, at the state and Commonwealth level, has set relatively high maximum penalties for sexual crimes against children. Community abhorrence of such crimes arises from the inherent vulnerability of children, whose emotional maturity is not fully developed. They are consequently at a disadvantage when confronted with sexual conduct by adults. That disadvantage is undoubtedly amplified when the conduct is from a trusted figure...
(Footnotes omitted, emphasis added).
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 90)
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; andb) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
- information and evidence on the risk of the noncitizen re-offending; and
- evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
...
(Emphasis added)
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection [2014] FCAFC 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 90)
(a) After he was charged in March 2019, the Applicant remained in the community until December 2020 and did not offend other than his accidental call to EF, in breach of his bail condition. The Applicant contends that this evidences the Applicant’s rehabilitation.[262](b) The Applicant was approved for parole after serving seven and a half months of his sentence, the Parole Board having assessed him as a low risk of reoffending.[263]
(c) The Applicant declared his intention to keep his distance from the victim and EF.[264]
(d) Dr Sheridan assessed the Applicant as being in the lowest possible risk category in the Static-99 and concluded he was a low risk of reoffending and that he posed no risk to the community generally.[265]
(e) There are similarities between the Applicant’s case and the Pinder case, where the Tribunal in that case decided to revoke the Cancellation Decision.[266]
(f) The Applicant maintains that he did not commit the offences against his granddaughter and that others have attested to such conduct being entirely out of character for him.[267]
(g) The prospect of the Applicant being removed from Australia considerably lowers his already low risk of reoffending, noting Dr Sheridan’s view that the Applicant would be very careful to avoid any form of offending in the future.[268]
(h) The Applicant’s poor health and limited mobility (along with his social circumstances if he were returned to the community) would not make it “very difficult” for him to reoffend.[269]
(a) There is insufficient evidence to support a conclusion that the Applicant has rehabilitated.[271](b) The risk of further offending by the Applicant is significant and unacceptable[272], specifically:
(i) The Applicant’s age or access to his grandchildren is not determinative.[273] While the sentencing judge found age to be a principle mitigating factor sentencing, and that the Applicant’s offending was opportunistic, it was also described as brazen.[274] The Tribunal cannot discount the possibility that the Applicant will once again take brazen action in the event he finds himself in the proximity of a child, his age was not a barrier to him offending on three occasions in the past and the Tribunal could not conclude that he is physically incapable of committing further sexual assaults of the same kind.[275] The Applicant also gave evidence that if any of his grandchildren chose to contact him personally or on a supervisory basis he welcomes their company.[276]
(ii) The Applicant has expressed no remorse and has taken no responsibility for his offending.[277] The Applicant continues to refer to the “allegations” against him and suggests that he was convicted due to a “gross misunderstanding” of his granddaughter which was prompted by EF who “told lies about the incident that led to [his] arrest.”[278] It is suggested that the Applicant and EF had a falling out as he did not want to help her financially by renting her investment home, that EF blamed the Applicant for the breakup with her mother 10 to 15 years prior and that she stole $25,000 from his account when he was in hospital following heart surgery.[279] It is well established that the Tribunal cannot impugn or question the essential factual findings that underpin the Applicant’s conviction for indecently deals with the child over 13 under 16.[280]
(iii) The Applicant has not engaged in any rehabilitation and has no plans to engage in rehabilitation if released.[281] Instead, he has stated that he intends to increase his various bowling club and other social visits, which would gain him access to other children in the community.[282] The Alcoholics Anonymous and Narcotics Anonymous meetings that the Applicant attended in prison cannot be considered rehabilitation given there is no suggestion in the material that he is an addict or that addiction caused the Applicant to offend.[283](iv) The Applicant’s supporters in the community would not be of any assistance in circumstances where they did not prevent the Applicant from offending previously and do not accept that he committed the offences for which he was convicted. Hence, the Applicant’s community support can’t be seen to be a protective factor that will prevent him from reoffending.[284] Concerningly, the statements are largely in the same terms and most include words to the effect “If I were to accept that [the Applicant] did do it”.[285]
(a) Dr Sheridan’s finding that the Applicant is no risk should not be accepted. At hearing, Dr Sheridan changed her opinion essentially from what was set out at paragraph 37 of her report.[287] At hearing, Dr Sheridan gave evidence that the Applicant was a low risk to his family, but no risk to the community.(b) The weight to be afforded to Dr Sheridan’s report should be very limited, because:
(i) The Static-99R assessment that Dr Sheridan used to assess the Applicant’s risk is an actuarial tool, assessing statistics. It assesses factors that cannot change. It did not consider the Applicant’s specific circumstances in any meaningful way.
(ii) The only indicator out of those 10 variables that Dr Sheridan said applied was age. The variables did not consider:
a. the Applicant’s victim;b. the opportunistic and brazen nature of his offending;
c. the Applicant’s rehabilitation or lack of rehabilitation;
d. the Applicant’s position of blaming the victim;
- the Applicant’s repeated denial of the offences despite three convictions. In fact, Dr Sheridan gave evidence that the reason why the Static-99 tool was used to assess him because it didn’t require him to accept his convictions.[288]
- The Static-99 did consider the Applicant’s age, but it considered his age at release. So, it did not factor in that the Applicant was 66 and 67 years old at the time of the offending.
- Further, the Static-99 went on to assume that the recidivism rate decreased to virtually zero at when a person reached 70 years of age. This arose out of the Static-99 tool itself, which allocates a negative 3 rating to anyone aged over 70, which is the only reason why the Applicant’s risk assessment was low risk.
(iii) The Respondent submitted that when you’re using a tool that essentially says that there is zero risk of reoffending once you are 70 years of age, and you have a person who’s committed offences a few years short of being 70 years old, that cannot be an appropriate indicator of risk.(c) The Respondent submitted that in any event, the Static-99 tool concluded that the Applicant was a “low risk” of reoffending, not a “no risk,” in accordance with Dr Sheridan’s evidence that the Static-99 tool just could not reach that conclusion.(d) The Respondent also submitted that Dr Sheridan’s own view was that any conclusion arising out of the personality assessment inventory should be viewed with caution, albeit minute, given the Applicant’s reluctance to acknowledge his personal limitations, and his tendency to present himself in a consistently favourable light.
(e) The Respondent noted that Dr Sheridan also went on to say that the Static-99R tool, was crude and simple, and that it was used because it does not require the Applicant to accept his offending or his wrongdoing.
(f) Therefore, in the Respondent’s submission, the Tribunal should view Dr Sheridan’s report with great caution.
(a) The Tribunal accepts that Dr Sheridan has assessed the Applicant’s risk of reoffending as “low,” as “no” risk was not an option offered by the Static-99 assessment tool.(b) The Tribunal agrees with the shortcomings of the Static-99 assessment tool identified by the Respondent, its crude and simple nature,[289] as espoused by Dr Sheridan herself, and the lack of comparability and persuasiveness of the Pinder case in the present matter.
(c) Hence, the Tribunal adopts Dr Sheridan’s opinions and findings, particularly in relation to the Applicant’s risk of reoffending, with a great degree of caution.
(d) However, and in any event, even if the Tribunal were to adopt Dr Sheridan’s “low” risk rating of the Applicant with greater confidence, it is of no practical consequence as the Tribunal is also of the opinion that the Applicant’s offending conduct fits squarely within the category of conduct so serious that any risk of it being repeated in unacceptable.[290]
(e) The Applicant‘s submission that he is essentially incapable of expressing any sense of remorse given his continued stance that he did not offend against his granddaughter is deeply troubling to the Tribunal. The Tribunal is concerned by the Applicant’s continued minimisation of his offending (for example, his use of quotation marks around the word “reoffending” in his statement)[291] which stands contrary for his formal acknowledgement of the seriousness of his offending. The Tribunal is also concerned by the Applicant’s failure to participate in targeted rehabilitation.[292] It is this insight which the Tribunal considers is lacking that one might view as a protective factor against reoffending and the Tribunal cannot be satisfied that if the Applicant were presented with a future opportunity to reoffend, that he would not do so.
(f) The Applicant points to protective factors such as JF and NF and social and community support. However, these factors and supports were available to him at the time of the offending, and his offending still took place. Further, the Tribunal is not satisfied the facts of his offending are known to his family, social and community supports.
Summary on paragraph 8.1 of Direction No. 90
Second primary consideration: Whether the conduct engaged in constituted family violence (para 8.2 of Direction No. 90)
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/orb) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
- the extent to which the person accepts responsibility for their family violence related conduct;
- the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
- efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non-citizen engage in further acts of family violence.
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; orb) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Third primary consideration: The best interests of minor children in Australia affected by the decision (para 8.3 of Direction No. 90)
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant’s minor grandchildren
(a) GD1 (EF’s eldest daughter, the victim);(b) GD2 (EF’s younger daughter);
(c) GS1 (AB’s son); and
(d) GD3 (AB’s daughter).
(the minor grandchildren).
(a) Before his arrest, he enjoyed a good relationship with his grandchildren in Australia.[297] Six to eight times a year, he would spend an hour or two with AB’s children and would visit them on their birthdays.[298](b) He is legally barred from having contact with the victim.[299]
(c) The Applicant has not spoken to or been in contact with any of his grandchildren since 2019 and understands that he may never see them again.[300] However, he would welcome contact with them if they chose to re-establish a relationship with him.[301] The Applicant’s grandchildren, particularly AB’s children (GS1 and GD3)[302] would be denied this opportunity if the Cancellation Decision was not revoked.[303]
(d) It would therefore be in the best interests of the Applicant’s grandchildren to revoke the Cancellation Decision.[304]
(a) The relationship that the Applicant has with the children is non-parental and their respective parents fulfil the parental role.[308](b) In light of the Applicant’s offending and ongoing risk of reoffending he is unlikely to play a positive role in the lives of the children.[309]
(c) The impact of the Applicant’s conduct, insofar as it relates to the victim, can only be seen as having a negative impact on her and to have inflicted emotional trauma.[310]
(d) The Applicant has not seen any of the children since 2019[311] and a lifetime violence restraining order was imposed on the Applicant protecting the victim such that he is prohibited from, inter alia, communicating or attempting to communicate with her by any means or to cause or encourage or procure any other person to do so.[312]
(e) In light of this limited contact the effect of further physical separation would be minimal.[313]
(a) The relationship between the Applicant and each of his minor grandchildren in Australia is not parental, the parental role being filled by the children’s parents,[315] he has had no contact with them since 2019 and his contact with the victim is legally restrained.[316] Hence, the likely effect of further separation would be minimal.[317](b) As to the extent to which the Applicant is likely to play a positive parental role in future, this is unlikely given his offending, his lack of insight into it and the ongoing unacceptable “low” risk of reoffending.[318]
(c) The impact of the Applicant’s offending conduct, insofar as it relates to the victim, has clearly had a negative impact on her and has inflicted emotional trauma.[319] The impact of the Applicant’s offending conduct and its impact on the remaining grandchildren is unknown, as are their views generally.[320]
(d) There is no evidence that the Applicant’s minor grandchildren have been subjected to family violence,[321] although clearly the victim has suffered abuse at the hands of the Applicant.[322]
Fourth primary consideration: Expectations of the Australian community (para 8.4 of Direction No. 90)
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed— they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
This Tribunal respectfully agrees with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’- expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]–[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]–[78].
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
Justice Stewart in FYBR (FC) found:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590–591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69 ; 180 CLR 404 at 429–430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA1 ; [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
Justice Charlesworth also observed:
Having regard to all that is said above, cl 11.3 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 visa 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 under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so....
.... 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 a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows: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”.
However, 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 consideration.
(Footnotes omitted.)
(a) The Applicant arrived in Australia in 1960 when he was 9 years old and, other than a short holiday, has remained her for the last 62 years.[329] Hence, he should be afforded a higher level of tolerance.[330](b) The Applicant has made substantial connections in the Australian community, including as a business owner.
Other considerations (para 9 of Direction No. 90)
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):a) international non-refoulement obligations;b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
- strength, nature and duration of ties to Australia;
- impact on Australian business interests.
International non-refoulement obligations (para 9.1 of Direction No. 90)
Extent of impediments if removed (para 9.2 of Direction No. 90)
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:a) the non-citizen's age and health;b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
(a) The Applicant contended that given his age, he also faces an increased incidence of morbidity, which will be compounded by his declining mental health and his other physical medical conditions.[339](b) His declining health. Namely, his requiring carer assistance for daily tasks, his inability to walk without a Zimmer frame or carry things, his ongoing heart condition following his heart surgery, his requiring medication for gout, heart disease, hypertension and diabetes and his continued and indefinite[340] wound care following his fall at the Yongah Hill detention centre. The Applicant contended he would not have anyone to assist him with these tasks and needs in the UK, whereas in Australia he can rely on JF and NF.
(c) His lack of social support and ties in the UK, leaving him without support for his day to day living and which would lead to a significant decline in his mental health.
(d) He is retired an unable to earn an income in the UK, and uncertain as to his eligibility for a UK pension. He does not know if he could support himself financially in the UK, in particular living, medical and carer costs.
(a) To the extent that it is impracticable to remove the applicant to the UK while he is suffering the acute effects of his injury following his fall, he would not be removed.[342](b) There is no evidence before the Tribunal to suggest that the Applicant’s need for a carer will continue after his wound has healed.
(c) Any difficulties the Applicant may face in re-establishing himself in the UK due to his long residence in Australia would only be short term and would not preclude resettlement.
(d) There are no language or cultural barriers for the Applicant to overcome.
(e) As a citizen of the UK, the Applicant has the same access to social, medical and economic support as other citizens.
(a) There are no impediments of significance to the Applicant being removed to the United Kingdom;(b) Any difficulties the Applicant may face in re-establishing himself in the UK would be temporary,
such that this factor should not weigh heavily in favour of revocation of the Cancellation Decision.
Impact on victims (para 9.3 of Direction No. 90)
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Links to the Australian community (para 9.4 of Direction No. 90)
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, 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:
- less weight should be given where the non-citizen began offending soon after arriving in Australia; and
- 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.
(a) JF and AB, among other family members, would be negatively impacted and in JF’s case “quite devastated” by the Applicant’s removal.(b) The Applicant arrived in Australia when he was 9 years old and did not commit any offences until 1980, when he was 29 years old. Those earlier offences being “very minor.”
(c) The Applicant’s offences against his granddaughter were committed when he was 67 and 68 years old.
(d) Therefore, he did not commence offending soon after he arrived in Australia.
(e) The Applicant worked for many years as a butcher, or was otherwise employed, providing for his family.
(f) His family and friends attest to his “good character” and his positive community contributions. He has strong ties with friends and family, as expressed in their witness statements.
(g) His friends express a “deep concern” for his ability to survive in the UK and he depends upon them considerably for social and emotional support.
(h) Sexual offending, or any offending “is not in his nature.”
(a) While it accepts that non-revocation of the Cancellation Decision may have an adverse effect on RF and AB, there is nothing to suggest that these people would face insurmountable hardship in the event of the Applicant’s departure.(b) The Applicant does not have any current relationship with EF or GH and CD lives overseas.
(c) The Applicant has lived in Australia for over 60 years and appears to have made some positivity community contributions through his employment.
(d) Therefore, whilst it is open for the Tribunal to place weight on this consideration in favour of the Applicant, this consideration does not outweigh the relevant primary considerations which weigh heavily against revocation of the Cancellation Decision.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
CONCLUSION - THE WEIGHING EXERCISE
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
(Emphasis added, footnotes omitted).
(a) the nature and seriousness of the Applicant’s conduct to date is “objectively high” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and(b) the “very serious” nature of the harm and the low, yet unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.
(a) International non-refoulement obligations are not relevant in this matter and is therefore neutral (para 9.1 of Direction No. 90).(b) The extent of impediments if the Applicant were removed from Australia is a factor weighing slightly in favour of revocation (see paras [xx]–[xx] above) (para 9.2 of Direction No. 90).
(c) The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 90).
(d) The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i) the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh moderately in favour of revocation of the Cancellation Decision (see paras [163]-[170]); and(ii) the impact on Australian business interests (para 9.4.2 of Direction No. 90), which has no relevance to the present matter and is therefore neutral;
indicate that this consideration overall weighs moderately in favour of the revocation of the Cancellation Decision.
(a) the unacceptable risk of harm to the Australian community; and
(b) the seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community, outweigh any considerations weighing in the Applicant’s favour.
DECISION
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I certify that the preceding one hundred and eighty-five (185)
paragraphs are a true copy of the reasons for the decision herein
of Member L M
Gallagher
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.............[Sgd]........................................................
Associate
Dated: 04 August 2022
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Date of hearing:
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07 July 2022
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Solicitors for the Applicant:
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Mr L Ong, Munro Doig Lawyers
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Solicitors for the Respondent:
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Ms D Jones-Bolla, Sparke Helmore Lawyers
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[1] R1, G3.
[2] See A17 [284]; R1, G18 [9].
[3] See A17, “Background” and [44].
[4] See A17, “Background.”
[5] See A17, “Marriage and Family.”
[6] R1, G14; A17 [63]–[64], [285].
[7] A17 [74]-[75].
[8] R1, G4.
[9] R1, G6.
[10] R1, G3 p 19; G12.
[11] R1, G3, p 19. See Sections 501(6)(a) and 501(7)(c) of the Migration Act. The Tribunal also notes that given s 501(6)(e)(i) of the Migration Act, the Applicant would not have passed the character test irrespective of the term of his sentence, and in any event, given he was convicted of a sexually based offence involving a child.
[12] R1, G7, p50.
[13] R1, G9–G44.
[14] R1, G17, G30.
[15] R1, G3, p 16.
[16] R1, G3, p 11.
[17] R1, G2.
[18] A1 [4.1]; Transcript, p 13 [5].
[19] s 501(7)(c) of the Migration Act.
[20] See [13] above.
[21] Pursuant to s 321(2) of the Criminal Code Act Compilation Act 1913 (WA).
[22] Direction No. 90 para 5.1(3).
[23] See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].
[24] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), (8 March 2021).
[25] Direction No. 90 paras 2–3.
[26] See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461.
[27] Direction No. 90 para 5.1(4).
[28] Direction No. 90 para 6.
[29] Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
[30] Direction No. 90 para 8.
[31] A9; A10; A11; R1, G11, G24, G25, G34, G36.
[32] R1, G18; A17. See also the Applicant’s personal circumstances form at R1, G8.
[33] Transcript, pp 19-74.
[34] Transcript, p 19 [40]-[45].
[35] Transcript, p 21 [15]-[30].
[36] Transcript, p 22 [5]-[25].
[37] Transcript, p 24 [15]-[25]. See A17, “Background.”
[38] Transcript, p 25 [5].
[39] Transcript, p 24 [15]-[20]. See A17 “Business ownership and employment history.”
[40] The Applicant has 9 grandchildren, including 8 minor grandchildren. His daughter AB has two children, his daughter CD has four children and his daughter EF has three children. See A17 [86]– [87], [91]–[92].
[41] CD, and her family live overseas. The Applicant has met the eldest of CD’s children on their trip to Australia in 2008. The Applicant has not met CD’s other three children A17 [91], [104].
[42] Transcript, p 27 [10].
[43] Transcript, p 26 [5]-[20]; A17 [103]-[107]; R1, G8, p 59.
[44] Transcript, p 28 [5]-[20].
[45] Transcript, p 69 [20]-[35].
[46] A17 [255].
[47] Transcript, p 30 [35]; A17 [126], [127].
[48] Transcript, p 31 [5]; A17 [128].
[49] Transcript, p 31 [25]-[30], [35]; A17 [130].
[50] Transcript, p 31 [25]-[30]; A17 [129].
[51] Transcript, p 31 [35]-[40]; A17 [131], [132].
[52] A17 [161].
[53] A17 [140].
[54] Transcript, p 32 [30]-[35]; p 33 [10]-[15]; p 35 [25]-[35].
[55] Transcript, p 32 [35]-[40].
[56] Transcript, p 36 [35]-[45; A17 [164].
[57] See A17 [169].
[58] Transcript, p 36 [35]-[45], p37 [15]; A17 [165], [170]. See various bank records annexed to A17.
[59] Transcript, p 37 [35]; p46 [20]-[25]; A17 [179], [180].
[60] A17 [181].
[61] A17 [206]
[62] Transcript, p 38 [25]-[30]; A17 [203], [208]; R1, G19.
[63] A17 [209]; R1, G20.
[64] Transcript, p 38 [25]-[35]; p 60 [25]; A17 [210].
[65] Transcript, p 38 [40]-[45]; A17 [211].
[66] Transcript, p 39 [10]-[30].
[67] Transcript, p 40 [5]-[15].
[68] Transcript, p 40 [25]-[35]; A17 [221]-[224].
[69] Transcript, p 40 [30]; A17 [227]-[229].
[70] A17 [233], [235], [236].
[71] Transcript, p 40 [30]-[45]; A17 [234].
[72] Transcript, p 41 [15]-[20]; A17 [246], [247].
[73] Transcript, p 43 [5]-[15]; A17 [80], [264]-[268].
[74] Transcript, p 43 [20]-[25].
[75] Transcript, p 43 [45].
[76] A17 [257].
[77] A17 [258].
[78] A17 [280].
[79] Transcript, p 43 [30]-[35]; A17 [278]-[280].
[80] R1, G8, p 61; Transcript, p 46 [30]-[35]; p 60 [40]-[45]; p 61 [5].
[81] Transcript, p 46 [40]-[45].
[82] R1, G8, p 61; See also A17 [283].
[83] Transcript, p 50 [30]-[45].
[84] Transcript, p 51 [15]-[20].
[85] See R3, doc 2, p 26.
[86] Transcript, p 51 [30]. The Applicant maintains that this occurred on only one occasion, and the reference to a call of this nature on 6 June 2020 is an error (see A17, [168] and transcript pp71-73). See also A17 [162].
[87] Transcript, pp 53-54; See R1, G5, extracted at [92] below.
[88] Transcript, p 54 [30]-[45]
[89] Transcript, p 55 [30].
[90] Transcript, p 55 [30], p56 [20]; R1, G8, p61.
[91] Transcript, p 55 [35], p56 [5]-[15], [35], p57 [5].
[92] A17 [145].
[93] The Applicant said that the victim was the person who came forward and told her parents and the court what had happened regarding the Applicant’s offending conduct (Transcript, p 57 [25]).
[94] Transcript, p 57 [30]-[45]; A17 [83].
[95] Transcript, p 58 [5]; A17 [111], [113].
[96] Transcript, p 58 [15]; A17 [138].
[97] Transcript, p 58 [20]-[25]; A17 [138].
[98] Transcript, p 57 [20]-[25].
[99] Transcript, p 58 [30]; p59 [5].
[100] Transcript, p 58 [30]-[35].
[101] R1, G8, p 61.
[102] Transcript, p 61 [20]; A17 [110].
[103] Transcript, p 61 [30].
[104] Transcript, p 61 [25].
[105] Transcript, p 61 [30]-[45]; p62 [5]-[25], [40]; p63 [5]-[15].
[106] Transcript, p 63 [20].
[107] Transcript, p 63 [20]-[25].
[108] Transcript, p 63 [25]-[45], referring to A10, p1 of statement.
[109] Transcript, p 63 [45]; p64 [5]-[30].
[110] Transcript, p 67 [35]-[40]; A17 [88].
[111] A17 [261].
[112] Transcript, p 65 [10]-[30]; p 66 [15]-[20], referring to A11, p 2 of statement.
[113] Transcript, p 67 [5]-[20], referring to A10, p 1 of statement.
[114] A17 [276].
[115] A17 [274].
[116] A17 [275].
[117] A17 [277].
[118] A17 [177].
[119] A17 [253], [286], [287].
[120] R1, G22; A2.
[121] Transcript, pp 75-86; A2 [6].
[122] Transcript, p 76 [5].
[123] A2 [16].
[124] Transcript, p 76 [30]; A2 [17].
[125] Transcript, p 76 [35].
[126] Transcript, p 83 [25]-[30]; A2 [30].
[127] Transcript, p 77 [15]-[20].
[128] Transcript, p 78 [45].
[129] Transcript, p 83 [35]. See also A2 [35].
[130] Transcript, p 77 [15]-[20].
[131] Transcript, p 77 [25]-[30]; p79 [10].
[132] Transcript, p 79 [15].
[133] Transcript, p 83 [20].
[134] Transcript, p 78 [30].
[135] A2 [36], [37].
[136] Transcript, p 78 [30]-[35]; p79 [25]-[30]; A2 [38].
[137] Transcript, p 79 [40].
[138] Transcript, p 80 [15].
[139] A2 [51].
[140] Transcript, p 83 [40].
[141] A2 [54], [56].
[142] Transcript, p 81 [25]-[30].
[143] A2 [62].
[144] A2 [59].
[145] Transcript, p 81 [35].
[146] R1, G23; A3.
[147] Transcript, pp 75-86; A2 [6].
[148] Transcript, p111 [5], [15].
[149] A3 [10].
[150] Transcript, p 115 [5]; A3 [22], [23].
[151] Transcript, p 111 [35]; p114 [5]; A3 [26], [27].
[152] See also Transcript, p 114 [25]-[45].
[153] Transcript, p 111 [45].
[154] Transcript, p116 [45].
[155] Transcript, p112 [5].
[156] Transcript, p117 [25]-[45]; A3 [35].
[157] Transcript, p112 [10]. See also Transcript, p 113 [5]-[10] and A3 [40].
[158] Transcript, p117 [35].
[159] A3 [45], [47].
[160] A3 [47].
[161] DG: A6, A7, R1, G26 DI A4; G21; RS: A5; G35. See also Transcript, pp 118 to 133.
[162] Transcript, p 118 [35]; R1, G26 [2]; A6 [2].
[163] Transcript, p 118 [45].
[164] Transcript, p 119 [35]; p 121 [15].
[165] Transcript, p 120 [15]; R1, G26 [12]; A6 [12], [19].
[166] Transcript, p 119 [40]; R1, G26 [19].
[167] Transcript, p 121 [10].
[168] R1, G26 [19]; A6 [19].
[169] Transcript, p 121 [30].
[170] A4 [2].
[171] Transcript, p 122 [30]-[35].
[172] Transcript, p 122 [45]; p124 [20].
[173] Transcript, p 123 [5].
[174] A4 [13].
[175] Transcript, p 122 [45]; A4 [17].
[176] Transcript, p 122 [45]; A4 [18].
[177] Transcript, p 123 [5]
[178] Transcript, p 124 [25]-[35].
[179] Transcript, p 125 [10].
[180] Transcript, p 123 [20].
[181] Transcript, p 123 [40]-[45].
[182] Transcript, p 126 [5]; see table at [10] above.
[183] Transcript, p 126 [5].
[184] A4 [20].
[185] Transcript, p 126 [40]-[45]; p127 [10].
[186] Transcript, p 128 [10]-[15].
[187] Transcript, p 128 [25]-[35]; A5 [3].
[188] Transcript, p 128 [40]; A5 [16].
[189] Transcript, p 129 [5].
[190] Transcript, p 129 [25]-[30].
[191] Transcript, p 129 [20]-[25]; p130 [5]; p130 [40].
[192] Transcript, p 131 [5].
[193] A5 [13].
[194] Transcript, p 130 [10].
[195] Transcript, p 130 [15].
[196] Transcript, p 130 [25]; A5 [17]
[197] Transcript, p 131 [20]-[40]. See table at [10] above.
[198] A5 [25].
[199] Transcript, p 132 [10]-[30].
[200] Transcript, p 87 to p 109.
[201] A16.
[202] A16, p 3 [10].
[203] Transcript, p 87 [25]-[40].
[204] A16, p 3 [10].
[205] Transcript, p 87 [45].
[206] Transcript, p 87 [45] to p 88 [5].
[207] A3, p 9 [23].
[208] Being the Personality Assessment Inventory, which Dr Sheridan reported is a standardised psychological test made up of 344 questions that load into 22 variables, that screens for a variety of common psychological and mental health issues: A16, p 5 [22]. Dr Sheridan said that there are scales within the test that enable comparison to general population norms if a person is trying to put a positive impression on themselves with their answers: Transcript, p 88 [20]-[25].
[209] Transcript, p 88 [15]-[30].
[210] A16, p 7 [33].
[211] Transcript, p 88 [45].
[212] Transcript, p 89 [5].
[213] Transcript, p 89 [5]-[15].
[214] A16 p 6 [28] and A16, p 7 [37].
[215] Transcript, p 90 [15]-[30].
[216] R1, G18.
[217] R1, G5.
[218] The Static-99R – Coding Form is publicly available.
[219] Transcript, p 91 [5]-[25].
[220] Transcript, p 91 [40].
[221] Transcript, p 91 [40]-[45].
[222] Transcript, p 92 [5]-[15].
[223] Transcript p 91 [30].
[224] Transcript, p 92 [15]-[40], p93 [5].
[225] Transcript, p 93 [15] to p103 [5].
[226] As compared to the age of the offender at release, which is a variable of the Static-99.
[227] Transcript p 96 [25].
[228] Pinder at [71], footnote omitted.
[229] A16, p 6 [28].
[230] A16 p 6 [27]. The “Age at Release” variable in the Static-99 produced a score of -3 for the Applicant. The remaining 9 variables in the Static-99 produced a “0” score.
[231] Transcript p 102 [40]-[45]. The Static-99 Coding Form states that a total score of -3 or -2 gives a Standardised Risk Level of “Very Low Risk.”
[232] Transcript, p 104 [45].
[233] A16, p 7 [37].
[234] Transcript, p 103 [15]-[20].
[235] Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
[236] Transcript, pp 13 and 17.
[237] See A1, [13.1(1)].
[238] A1 [13.1(3)].
[239] R2 [62].
[240] Transcript, pp 14-15.
[241] See also Direction No. 90 para 8.1(2)(a).
[242] R1, G5.
[243] A1 [6.2] to [6.7].
[244] Transcript, pp 134 to 136.
[245] R2 [29].
[246] Paras 8.1.1(1)(a)(i) and 8.1.1(1)(b) of Direction No. 90.
[247] Para 8.1.1(1)(c) of Direction No. 90.
[248] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[249] Para 8(1) of Direction No. 90.
[250] Direction No. 90, para 8.1.1(1).
[251] Transcript, p 136 [20].
[252] See para 8.1.1(1)(i) of Direction No. 90.
[253] See also Direction No. 90 para 8.1(2)(b).
[254] [2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 90. Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
[255] Para 8.1.2(2)(a) of Direction No. 90.
[256] A1 [6.10]
[257] R2 [32]. The Applicant noted in response that there is no evidence to suggest he has a propensity to offend against multiple victims of a particular type. However, this is not the question for the Tribunal. Here, the Tribunal is required to consider the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal or other serious conduct.
[258] R2 [32], citing https://aifs.gov.au/cfca/sites/default/files/cfca/pubs/papers/a143161/cfca11.pdf
[259] Para 8.1.2(2)(b)(i) of Direction No. 90.
[260] Transcript, p 139 [25]-[30], relying on Dr Sheridan’s risk assessment.
[261] A1 [6.11] to [6.24] and A18 [2.3] to [2.8].
[262] A18 [2.6].
[263] See A12.
[264] R1, G29, p 149.
[265] See also Transcript, p 139 [30]-[35].
[266] The Applicant did not, however, specifically identify or articulate those similarities and what the Tribunal ought to infer from them. Rather, the Pinder case involved a very different set of facts such that in the Tribunal’s view, that decision cannot be seen to be persuasive or comparable. In Pinder, the Applicant had committed sexual offences but had not re-offended sexually over 24 years. Over those 24 years the Applicant had spent 18 years in the community.
[267] Again, the Applicant did not go on to make any submission relating to these matters or articulate what the Tribunal ought to infer from them.
[268] A16, p 6, [30].
[269] A18 [2.8].
[270] R2 [33]-[34].
[271] Transcript, p 147 [40].
[272] Transcript, p 147 [40].
[273] Transcript, p 147 [45].
[274] Transcript, p 147 [40].
[275] Citing TGXY v Minister for Home Affairs [2019] AATA 757 at [121]- [122], [126]. Transcript, p 147 [40]-[45].
[276] Transcript, p 147 [45], p148 [5].
[277] Transcript, p 148 [25]-[30].
[278] R1, G6, p 61, p 108.
[279] R1, G17, p 88; G18, p 105, p 107.
[280] HZCP v Minister for Immigration and Border Protection and Another [2019] FCAFC 202.
[281] Transcript, p 48 [20].
[282] Transcript, p 148 [5].
[283] Transcript, p 148 [20].
[284] Transcript, p 148 [35].
[285] R1, G21, p 117; G22, p 121; G24, p 126, G25; 130, G34; p 160.
[286] Transcript, pp 148 to 150.
[287] See [76] above.
[288] Transcript, p 93 [30].
[289] The Tribunal also accept that the Static-99 tool is not used alone in assessing risk of reoffending and that the PAI-Plus and interview also form part of the assessment.
[290] Para 8.1.2(2)(a) of Direction No. 90.
[291] For example, R1, G8, p61.
[292] Para 8.1.1(2)(b) of Direction No. 90.
[293] A1 [7.1]-[7.12]; R2, [35] to [37].
[294] Para 8.3(1) of Direction No. 90.
[295] Para 8.3(2) of Direction No. 90.
[296] The Applicant also has four minor grandchildren, CD’s children, who live overseas. The Applicant’s eldest grandson, who is EF’s son, is over 18 years of age.
[297] A1 [8.2]
[298] A1 [8.3].
[299] A1 [8.4].
[300] A1 [8.5].
[301] A1 [8.5]
[302] A18 [3.5], [3.6].
[303] A1 [8.6]
[304] A1 [8.5].
[305] R1, G8, p59; R2 [41]. Other than a friend meeting with CD’s eldest child in Australia in 2008 (A11).
[306] R2 [42].
[307] R2 [42]; Transcript, p151.
[308] Paras 8.3(4)(a) and 8.3.4(c) of Direction No. 90.
[309] Para 8.3(4)(b) of Direction No. 90.
[310] Paras 8.3(4)(c) and 8.3(4)(h) of Direction No. 90.
[311] R1, G17, p95.
[312] R1, G5, p41.
[313] Para 8.3.4(d) of Direction No. 90.
[314] Para 8.3(3) of Direction No. 90. Where their interests differ, the Tribunal has highlighted and addressed these differences.
[315] Para 8.3(4)(e) of Direction No. 90.
[316] Para 8.3(4)(a) of Direction No. 90.
[317] Para 8.3(4)(d) of Direction No. 90.
[318] Para 8.3(4)(b) of Direction No. 90.
[319] Paras 8.3(4)(c) and 8.3(4)(h) of Direction No. 90.
[320] Para 8.3(4)(f) of Direction No. 90.
[321] Para 8.3(4)(h) of Direction No. 90.
[322] Para 8.3(4)(h) of Direction No. 90.
[323] Set out in [34] above.
[324]
[2021] AATA 1143 at
[194] .
[326] A1 [9,1], [9.2].
[327] R2 [47].
[328] A1 [9.5]-[9.8].
[329] See also A18 [4.2].
[330] Para 5.2(4) of Direction No. 90. See transcript, p142 [15]-[20].
[331] R2 [47].
[332] Citing paras 8.4(2) and 8.4(4) of Direction No. 90.
[333] As it is now referred to. See Wightman above at para [173].
[334] See para 8.4(2)(c) of Direction No. 90.
[335] Citing principle 5.2(4) of Direction No. 90.
[336] A1 [10.1].
[337] A1 [10.8]
[338] A1 [10.1] to [10.8]; Transcript, p143 [15]-[45].
[339] A18 [5.7].
[340] A18 [5.8]. The tribunal has not been provided with any medical evidence forecast the length of time for which he will continue to require wound care.
[341] R2 [52]-[55]; transcript, p152 [15]-[35].
[342] Section 198 of the Migration Act.
[343] R2 [56]-[57].
[344] Including in relation to the Applicant’s age and health concerns (para 9.2(1)(a) of Direction No. 90), the substantially comparable nature of the language and culture in Australia and the UK (para 9.2(1)(b) of Direction No. 90) and the social, medical and economic supports available to him in the UK (para 9.2(1)(c) of Direction No. 90).
[345] Section 198 of the Act.
[346] A1 [12.17].
[347] A1 [12.2]-[12.16]; transcript p144 [20]-[35].
[348] R2 [59]-[61].
[349] See A9; A10; A11; R1, G11, G24, G25, G34, G36. The Tribunal does not seek to summarise the entirety of this evidence and notes it has considered the various letters, statements and statutory declarations available to it in their entirety in the context of this consideration.
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2022/2825.html