CHCY and Minister for Immigration, Citizenship and Multicultural Affairs... [2024] AATA 334 | Case summary

CHCY and Minister for Immigration, Citizenship and Multicultural Affairs... [2024] AATA 334 | Case summary | Zoe

[23]

CHCY reported that in the months leading up to his offending, he had experienced a number of marked stressors that he now believes affected his mental health. > > The first of these was when his mother was diagnosed with breast cancer. She was told that the prognosis was poor. He became very worried as he had always considered his mother to be a primary source of support to him and to his family. He noted that his mother is continuing with her treatment for breast cancer with radiation. Part of her treatment involved mastectomy of both breasts. He described this as being a very emotionally difficult time for not only his mother, but for him and other members of his family. > > Following this, his stepfather had a number of heart attacks and nearly died. He was extremely worried that he would lose both his mother and his stepfather within a short space of time. He commented on the very close relationship that he enjoys with his stepfather. He said that he found the thought of being without both of his parents to be devastating but he hid his emotions from others. > > Further stressors came about through the suicide of a close friend and mentor, and then the suicide of this man's wife. He had been working for a man named [redacted] over a six-year period. Part of his responsibilities was to lock up tools after a day's work. On one occasion, he had to lock away the tools early because he had a commitment. Because he was in a hurry, he left one extension cord outside the shed. He planned to put it away the following day. However, that night, his friend and mentor had gone to the shed and had suicided by hanging himself with the extension cord that he did not put away. > > CHCY reported that despite the reassurances of others, he held himself responsible for his friend and mentor's suicide. This occurred in October 2020. To make matters worse, while at the funeral, his friend's wife asked him if he would come the following week and finish the shed that he had been building with his friend. He agreed to do so on the following Saturday. However, CHCY said that because his wife became very ill throughout her pregnancy, he had to ring this man's wife to explain that he could not come on the Saturday. He then learnt that she also suicided by taking an overdose of pills on the day that he was supposed to be there. > > CHCY said that he felt responsible for both of these people's deaths. > > A couple of weeks later, his sister advised him that his 14-year-old niece had been diagnosed with leukaemia and had been told that she was going to die. He said that the niece has since had multiple surgeries to do with her cancer. > > CHCY described feeling overwhelmed; in his terms, "completely broken", by this series of events that occurred in relatively close proximity in the months leading up to his offending. > > He related that his wife had become ill during her pregnancy. On the same day in February 2021 that he committed the offence against his step daughter, they had both been in attendance at the hospital where his wife was confined following the birth of their youngest child. He and his step daughter had been at the hospital each day for four consecutive days for long hours. Prior to them coming home in the evening, his wife suffered a seizure and was convulsing. He described feeling a sense of panic thinking that she could die. > > CHCY confirmed the circumstances surrounding his offending as detailed in the Statement of Facts provided to me. On questioning around his behaviour, he was unable to provide an account of his state of mind at the time that he offended against his stepdaughter. He said that there was no "precognition", meaning that he had not planned to sexually abuse his step daughter before it occurred. He considered that his offending behaviour was reflective of a complete loss of judgement and totally outside of his normal character. Immediately after he committed the primary offence against his step daughter in February 2021, he had realised that what he was doing was very wrong and he left the room. CHCY said that with the benefit of extensive psychological counselling, he has now come to understand that the stressors that he had been experiencing in the period prior to his offending and on that particular day when he offended, had contributed to deterioration in his mental health and thereby contributed to extremely poor judgement. > > He said with regard to the most serious incidents in February 2021 that he lay down in the bed with his stepdaughter because she wanted him to stay with her and because she had been quite upset by what had happened at the hospital. While he said that the offending was not pre-planned, he stated that, "one thing led to another" but he knew instantly that what he was doing was wrong and "snapped out of it and immediately left". He stated that he does not believe that he would have been in such a weak state of mind if he had the psychological management tools that he has now developed through psychological counselling. He acknowledged that as a result, he had hurt his stepdaughter, whom he had helped raise since she was a baby. > > He accepted full responsibility for his actions, stating that there was no excuse that he allowed events to unfold as they had. As to his thoughts when he initiated sexual activity with her, he said that his mind had been overcome by negative thoughts and anxiety but was unable to be more specific.

[26]

(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 engaged 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 measurable 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 other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6) 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 8.55(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 measurable risk of causing physical harm to the Australian community.

[43]

CHCY submitted that:
- He wanted to apologise to all parties involved in dealing with this matter for his actions.
- His intention was to show how remorseful he was for his actions and offending, and wished to prove his worth to the Australian community as not simply a human being that made a very serious mistake, but a person that has also learnt many valuable lessons, methods and coping strategies through rehabilitation, therapy and faith to insure that his mindset is now positively stable, and posed no threat to the Australian community and wished for the opportunity to prove his worth and for another chance to do so.
- He did not dispute his offending fitted the definition of a substantial criminal record, as defined in the Act but he wished to highlight that he had no other criminal record of any description in Australia or New Zealand.
- That the Judge gave him a Partially Suspended Sentence, where he served a total of 7 months and 26 days, on a full-time basis.
- He had read the Direction and understood as best he could, that he met the criteria for "Another Reason" for compassion towards having his visa revoked.
- He believed he can demonstrate he can be a valued and trustworthy member of the Australia community.
The Respondent submitted that CHCY's offending should be viewed particularly seriously for the following reasons:
- Paragraph 8.1.1(a)(i) of the Direction requires sexual crimes to be viewed very seriously. CHCY's crimes were sexual in nature and he 'does not deny that the offences are categorised as sexual'.
- The victim of CHCY's offending was his stepdaughter, was a minor aged 14 years at the time of the offending, was under his care at the time and she had a close relationship with CHCY having been the only father figure in the victim's life. These circumstances suggest that the offending constituted a significant breach of trust.
- CHCY's offending occurred on three separate dates against the same victim being 17 February 2021 (2 counts of rape and 4 counts of indecent treatment), a date between 16 April 2021 and 28 June 2021 (1 count of indecent treatment), and 12 July 2021 (2 counts of indecent treatment).
- Sentencing remarks described that the 'impact to the victim is substantial and ongoing'. A psychological report provided by the Applicant suggests that the victim 'broke down' at school and made disclosures to her friends and a school guidance counsellor. The victim has 'cut herself off' from her mother (the Applicant's wife) due to her mother's continued support of the Applicant.
The Respondent contended that the very serious nature of CHCY's offending is reflected in the custodial sentence imposed on him. The Respondent referred the Tribunal to the comments in PNLB and Minister for Immigration and Border Protection [2018] AATA 162, that '[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved'. The Respondent submitted that the custodial sentence imposed by the Court reflects the objective seriousness of CHCY's offending.
The Respondent acknowledged that CHCY had no prior criminal history and no trend of increasing seriousness. However, the Respondent submitted that CHCY's offending occurred over three separate incidents and all incidents were of a very serious nature.

[46]

CHCY submitted:
- He believed that without a doubt that if given the opportunity to prove his worth that he can show through his character that he has respect for Australian law and its enforcement framework.
- That prior to his conviction he had no previous criminal record and has no intent to cause any harm or threat of any kind to the Australian community.
- The very serious crimes that he committed came to light in July 2021 when he was initially interviewed by the police where he was detained and released after 2 days and again served another 2 days for breach of bail and remained an active member of the Australian community until his sentencing date after 16 months, where he engaged in seeing a therapist, renewed his faith and learnt and acquired the necessary skills and coping strategies through therapy and rehabilitation to ensure that moving forward he could demonstrate that he can be a contributing and upstanding member of the Australian community.
- Through psychological therapy he has gained insight, understanding and knowledge of how incorrect his thought process was in the moment of the offending. He has learnt that these beliefs were corrected through successful therapy that began in July 2021 where his therapist taught him that his thought process was very wrong. That he wasn't using sex as a stress relief but a masking of his low self-worth, depression and anxiety that he was suffering from at the time of the offences.
- As he was sentenced to a Partially Suspended Sentence which had no requirements for him to complete any sexual offending courses, he had no opportunity to complete such a course whilst in prison as he was not sentenced with any parole conditions to be met before release.
- He did not disagree that the harm caused by his offending was serious and if committed again would cause very serious harm but he again wished to make acknowledgement towards his rehabilitation, various coping strategies, family support network, ongoing lifelong therapy, church attendance and prayer groups are all very successful tools in his life that were not present prior to his offending and have helped him to ensure this type of behaviour and mindset are no longer and will never be present in his life again.
- He had already demonstrated remorse and rehabilitation as an active member of the community for 16 months whilst on bail, with signing in conditions only once a week which he attended every week without any issue for a total of 64 times.
- He would willingly accept any future conditions imposed on him including any signing in with local authorities, ankle monitoring if deemed necessary and being placed on a sex offenders registry to further ensure the levels of safety for the Australian community.
- That no amount of stressors can be used as reasons for offending of any nature and apologised for thinking they could be, as therapy has taught him very successfully that having no coping strategies in his life contributed to very poor decision making in that specific time with everything that was happening in a short period of time.
- Simply not having an understanding of anxiety and how to deal with negative thoughts prior to the extensive therapy he received led to poor decisions and trying to find excuses for his actions; he now understands there are no excuses for his actions. Through successful therapy and counselling, a renewed faith, multiple coping strategies and tools now available to him, he has overcome depression and anxiety.
- He experienced various stressors in the months leading up to the offending, they led to his severe lapse in judgement but do not explain why the offending happened or excuse his horrendous offending. Understanding he was trying from a distance to deal and cope with his mother's breast cancer diagnosis, his father's numerous heart attacks, the suicide of his employer/mentor and then the suicide of this man's wife, his feeling of being responsible for their deaths, his niece being diagnosed with leukaemia and the complications with his wife's pregnancy was helpful to understand the breakdown in his decision-making at the time.
CHCY contended he posed no risk of reoffending. CHCY contended that through successful therapy, he has learned and implemented coping strategies into his everyday life to ensure that he is no risk to the Australian community. That the support of his wife, children, mother, stepfather and extended family, his renewed faith, support network, employment and desire to make amends that he will never reoffend. Indeed, he has already demonstrated that he has proved himself in the community having not been convicted of any further offences in the 16 months he was on bail.
The Respondent submitted:

[50]

Mr Bird described the 12 sessions CHCY attended included cognitive behaviour therapy and self-worth therapy directed towards depression, anxiety, and self-worth, in relation to which CHCY had made good progress. The report also noted that CHCY is 'of significantly less risk of poor decision making'. CHCY testified to 'coping mechanisms' acquired in these sessions as a protective factor. However, the report does not refer to the nature of any such coping mechanisms taught, nor explicitly indicate whether any intervention was directed towards sexual offending specifically.
In the absence of further details as to the content of Mr Bird's sessions with CHCY, the Tribunal cannot be satisfied that these sessions would be appropriate and sufficient to address his risk of reoffending.
CHCY has claimed that he stopped psychological sessions with Mr Bird because Mr Bird had said there was no need for any further sessions however the Tribunal cannot rely upon this as there was not any material from Mr Bird before the Tribunal to corroborate this claim.
Mr Jordan stated in his later report, dated 22 November 2022, that '[t]o address the identified rehabilitative needs, it is recommended that [CHCY] engage in a medium intensity sexual offender program (MISOP)' and this indicated that Mr Jordan was of the view that CHCY could benefit from further rehabilitation, as at the time of writing the report. CHCY has contended that there was no requirement for him to complete any sexual offending course nor was such a course made available to him whilst in custody. Nevertheless, it appears that Mr Jordan also noted that such courses are also available in the community and/or offered by psychologists.
It was open to CHCY to enquire about and attend similar courses related to sexual offending. However, there is no evidence that this was done. The fact remains, based on the evidence available before the Tribunal, that the medium intensity sexual offender program recommended by Mr Jordan has not been completed.
CHCY breached his bail condition on a date between 5 September 2021 and 28 November 2021 and was fined $200 with no conviction recorded. Bail systems are built upon a level of trust that a person would be on conditional liberty subject to compliance with its conditions. To undermine that trust illustrates a disregard for lawful authority in Australia, casting doubt on CHCY's ability to comply with the law in the future.
It is concerning that CHCY's previous submissions appear to somehow seek to justify his breach of the bail conditions where it appears from these accounts that the Applicant made a conscious decision to disregard Australian laws that applied to him.
In CHCY's response to the Natural Justice Letter sent by the Minister, the representations about revocation of the decision to cancel the visa dated 24 June 2023 prepared by his former legal representative asserted:

[57]

The Tribunal noted prior to these offences CHCY has had no convictions of any kind including no driving-related offences and has not demonstrated any 'frequency' of offending nor any trend of increased seriousness.
However, by the very nature of CHCY's offences the Tribunal finds his actions blatantly serious and of greatest concern was the fact that whilst CHCY recognised he had done something highly inappropriate to his stepdaughter on the first encounter on 17 February 2021 he continued to enter her room and inappropriately touch her, with the offending only ending when it was reported by his stepdaughter to her school guidance counsellor.
Additionally, CHCY was for all intents and purposes the victim's father as he had raised her since she was a baby, and she had known no other father having little to no contact with her biological father since her birth. CHCY had parental control over his victim and was there to protect her; his offending was a complete abrogation of his role as a father and a significant breach of trust.
The Tribunal found CHCY's offending was serious, producing a devastating lifelong impact on his victim.
The Tribunal did not consider CHCY's breach of bail an act of disregard of the Australian legal system but a cry for help from a father and family in crisis. Staying one night with his family did not represent an escalation in his offending, as indicated by no record of conviction against him and being fined $200.
There was no evidence before the Tribunal of any untruthful information being provided by CHCY to the Department nor of any previous immigration warning, in writing or otherwise.
The Tribunal found CHCY to be a witness of truth who expressed genuine remorse for his abhorrent actions for which he never sought to blame the victim or justify in any way before the Tribunal. CHCY's repeated evidence was that he fully understood and accepted his actions against his stepdaughter were unforgiveable and abhorrent. CHCY's evidence was he did not wish to excuse his behaviour because of the extreme stressors in his life but to explain that his thought process had been so clouded by the events and his own low self-worth that he had been able to somehow justify the actions in the moment even though he realised they were wrong.
The Tribunal finds the application of weight to Primary Consideration 1 complex as there are many factors involved. The Tribunal finds the first part of the consideration, the nature and seriousness of the offence, weighs heavily against revoking the mandatory cancellation of the visa, as CHCY's actions are abhorrent and do represent conduct and the harm they would cause, if repeated, as so serious that any risk that it may be repeated may be unacceptable.
In terms of the second part of the consideration, the risk of reoffending, the Tribunal finds the risk of CHCY reoffending is low and does not agree with the Respondent that there is inconclusive evidence to arrive at this conclusion. The Tribunal relied upon the following at arriving at this finding:

[59]

I take into account your prospects of rehabilitation which, with respect, seem to be quite positive. I take into account generally your antecedents, which I have mentioned, your age and your character and I pause to note that you have a number of supportive character references, and they demonstrate that there is another side to your character. I take into account the contents of the psychological reports that I have mentioned.

Mr Jordan's report of 22 November 2022 stated:

He accepted full responsibility for his actions, stating that there was no excuse that he allowed events to unfold as they had. As to his thoughts when he initiated sexual activity with her, he said that his mind had been overcome by negative thoughts and anxiety but was unable to be more specific.

CHCY described strong support and acceptance by family members, whom he has shared his offending with and who continue to accept him. None of these people have endorsed his behaviour in any way and have indicated their abhorrence of it. He has also shared information with members of his church, including his church pastor.

His capacity for relationship stability appears to have been sound over time. He has had a long marriage and it has not been marked by domestic violence or any police involvements. He is in regular contact with his wife. According to CHCY, they intend to try to rebuild their marriage on a Christian foundation.

His comments did not suggest emotional identification with children or any enmeshment with his wife's daughter (the complainant), ...He said that he had never previously considered his step daughter with any sexual intent and referred to "no precognition" prior to offending. By this, CHCY appeared to be suggesting that there was no pre-planning with respect to what occurred. His account suggested that impulsivity in circumstances when his stress levels were high and his mental health was likely compromised was a predominant feature behind his offending.

CHCY's comments were not marked by any attitudes reflecting hostility towards females or misogynistic attitudes.

He did not believe that any sense of rejection or loneliness played a part in his offending behaviour. He said that throughout his marriage, he and his wife have had a strong relationship. He enjoyed the company of work colleagues. He was not feeling rejected by others.

He continues to feel well accepted by members of his family and members of his church congregation. He does fear societal rejection in the future if his offending comes to light with those who do not know his background.

CHCY expressed attitudes during interview, did not reflect a person who lacks empathy or concern towards others. His expressions of remorse and concern for the complainant in the matter appeared genuine. There was nothing in the history (other than the index offences) to suggest that CHCY has displayed a tendency towards behaving in a callous or indifferent manner towards others.

EVALUATION

CHCY is a person who reports experiencing sexual abuse as a child. While this may or may not have been the actuality when his mother's account is considered, CHCY has always believed it to be the case. He reports that the incident with the doctor concerned caused him to experience anxiety, poor concentration and compromised learning throughout his school years. His treating psychologist has noted a lifelong negative impact upon his self-worth. His mother confirms that the incident caused observable changes in his behaviour in terms of fear of doctors and dentists, and reduced enjoyment of school and sport. She observed him to become quieter and withdrawn after the incident. It is worth noting that the incident occurred when he was five or six years old and therefore any impact upon schooling would have been from that period onwards. This makes it difficult to determine what his baseline experience of schooling was in any case.

There is a likelihood that the belief of having been sexually abused as a child has had an impact upon CHCY's psychosexual development. This likelihood is reinforced in the comments noted from CHCY's treating psychologist who notes that "CHCY's reported a history of sexual abuse at five years of age and then daily masturbation from six years of age for stress relief". This serves to illustrate the development of a maladaptive anxiety management strategy; namely, use of sexual activity as a coping mechanism.

CHCY went on as an adult to form a stable relationship with his wife over a long period of time. It appears that his wife, who along with CHCY biological children is living with CHCY's parents in Victoria, is prepared to maintain the marriage in the future.

One dynamic factor that is important in predicting risk of reoffending is availability of support and whether the available support is helpful in terms of the prosocial values that are likely to be encouraged by supportive others. If CHCY's narrative around his family circumstances and the support available to him from that source is accepted, this is a positive prognostic indicator for reduced risk of reoffending. His willingness to be open about his offending with family members and members of his church congregation is a further positive prognostic and protective factor with respect to risk of further offending. CHCY's mother is able to corroborate that there will be ongoing support available from her and her husband, notwithstanding their abhorrence of the nature of CHCY's offending.

It does appear on objective personality assessment that CHCY's mental health is currently sound and stable. He appears to have benefited from extensive psychological counselling provided by a treating psychologist under a mental health plan, as detailed in the report of Mr Bird.

From the information that CHCY provided to me with respect to the antecedents to his offending and from the information available from Mr Bird's report, it would be reasonable to conclude that the culmination of stressors that he was experiencing in the period leading up to his offending resulted in him developing an adjustment disorder marked by clinical levels of anxiety. This likely contributed to reduction in capacity for sound judgement and decision-making at the time that he committed the offences against his stepdaughter. His lack of criminal history and the stability of his marriage over a long period of time, as well as the ongoing acceptance of family members, save for the complainant child, who have knowledge of his offending, would suggest that his offending was out of character for him.

There was nothing from CHCY's presentation to suggest to me that his expressions of remorse were disingenuous. His goals for the future appeared appropriate.

Results on a structured, and normed personality test that is well accepted for use in forensic contexts revealed no concerns regarding his mental health at the current time, apart from some post traumatic anxiety, which may relate to his current legal predicament and the sequelae associated with him being charged. Alternatively or in addition, post traumatic anxiety features may relate to the perceived experience of childhood sexual abuse.

He takes responsibility for his offending and has done so since being confronted about it. While he did not attribute any blame to the complainant child and rejected the notion that she had contributed to his offending in any way, his comment that during the course of his offending, he interpreted her lack of resistance to his sexual activity as some sort of acceptance or consent, does give rise to concerns regarding his rationalisations at that time. These rationalisations may have been short term.

In that regard, it is noted from the comments of the treating psychologist that "During treatment CHCY has come to understand that sexual activity with his fourteen year old step-daughter was absolutely wrong and that his actions have caused extensive harm to his fourteen year old step-daughter...".

CHCY has been a willing participant in psychological counselling over an extended period. His mental health now appears stable. This is an important factor to consider when it comes to risk of further offending. There is little doubt that his current legal predicament and his level of remorse have had a salutary effect and have therefore reduced risk of reoffending further. However, it is necessary to always be mindful that some repetitive offenders experience a "latency effect" that is marked by remorse and determination not to offend again. The most effective means of reassuring the Court in this regard is to consider the assessment of dynamic factors that has been conducted (STABLE assessment) and ensure that the offender engages in an appropriate rehabilitative process that addresses the full range of risk factors specifically identified, and additional risk factors that apply generally to those who have committed a sexual offence against a child. In CHCY's case, an historical propensity to use sex as a means of coping and the attitudinal factors around consent referred to above would be the most important issues to be addressed to have confidence in rehabilitative success.

Mr Bird's report of 20 October 2022 stated:

I have seen CHCY twelve [12] times from 15th July 2021 to 16th May 2022.

On presentation CHCY appeared Depressed, and severely Anxious regarding the prospect of going to jail. I have diagnosed CHCY as suffering from Depression and Anxiety. CHCY is also suffering from long-term poor Self Worth. CHCY's mental health issues may make him vulnerable to poor decision making.

CHCY reported a history of sexual abuse at five years of age and then daily masturbation from six years of age for stress relief. CHCY stated that he has used sex as a form of stress relief for most of his life - relying on sex with his wife to find that relief.

CHCY reported that during a difficult pregnancy in 2021 his wife was not able to offer sex as a means of stress relief and consequently CHCY was unable to relieve his stress. CHCY stated that he engaged in sexual activity with his fourteen year old step-daughter to address his stress. CHCY believed at the time that the sexual activity was mutually acceptable to both of them. CHCY said he knew the sexual activity was wrong but that he "wasn't strong enough".

CHCY has engaged very well in Cognitive Behavioural Therapy and Self Worth Therapy and has made very good progress regarding the Depression, the Anxiety and Self Worth.

During treatment CHCY has come to understand that sexual activity with his fourteen year old step-daughter was absolutely wrong and that his actions have caused extensive harm to his fourteen year old step-daughter, his wife, his children and to himself. CHCY has expressed deep regret for his actions and has made a strong commitment to never re-offend.

I believe that if CHCY continues to practice the psychological skills that he has learned in therapy that he should be able to successfully manage his Depression and Anxiety and that he is of significantly less risk of poor decision making.

[60]

The Tribunal relied upon the determination in Tanielu in assessing if CHCY presented an 'unacceptable risk', where her Honour stated 'a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest'. Based on the evidence before it, the Tribunal found CHCY now has the tools and support around him to ensure he will never reoffend. The Tribunal also considered CHCY's biggest incentive to never reoffend is the obvious knowledge he would be deported to New Zealand putting at risk his life in Australia and more importantly destroying the very fabric of his supportive family who have shown such faith in him.
The Tribunal notes that CHCY's immediate family in Australia are all aware of his offending, all his family members provided statutory declarations stating their dismay and horror at his offences, but all expressed continued support for him and a desire for him to remain in Australia. CHCY's parents, wife and eldest son attended the hearing and his mother provided supportive oral evidence. The International Health and Medical Services record of 4 January 2024 notes 'Gets visit daily from family. Very supportive family'. The Tribunal finds CHCY has strong prosocial factors around him that will provide the support to ensure he is not at risk of reoffending. On release from detention, he will have stable accommodation, an extremely supportive family, coping mechanisms learnt through his therapy and will have stable employment. The Tribunal did not find that CHCY had disregarded Mr Jordan's recommendation to engage in a medium intensity sexual offender program (MISOP) nor that his failure to do so represented an unacceptable risk to the Australian community. The Tribunal accepted CHCY's evidence that he had engaged in all therapy available to him, that he was not eligible to undertake the MISOP in prison and that it is not available to him in detention. The Tribunal finds CHCY's evidence that he will continue to undertake counselling credible, and this again is another factor which provides assurance he is at low risk of reoffending.
The Tribunal considered the nature and seriousness of CHCY's offences, weighs heavily against revoking the mandatory cancellation of the visa. CHCY's offences are such that this factor must weigh against him.
However, whilst the Tribunal finds CHCY's offending was limited to the one period and sadly the one individual it does not consider that he meets the criteria in the Direction that his actions are such they [are] so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. The Tribunal finds CHCY is at low risk of reoffending because of the incredible support he has around him.

[63]

CHCY submitted he took full responsibility and apologises for his actions of committing a very serious crime of domestic violence towards a family member that was in his care at the time of the offence.
CHCY submitted that he had not used coercion or controlling behaviour, had not used threatening language, been physically violent or threatening but did agree his actions had caused the family member to experience a degree of fear.
CHCY contended he had remained an active and contributing member of the Australian community from the day the offence was brought to light and being made aware of by law enforcement up until the day of sentencing. CHCY contended that no reoffending took place, and that through his ongoing commitment towards his rehabilitation and continuous therapy he will ensure he is always of sound mind to be at significantly less risk of any poor decision making into the future.
CHCY agreed with the very serious nature of his offending and understood it weighed significantly against revocation.
The Respondent submitted:
- CHCY's offending constitutes family violence as per paragraph 4(1)(b) in the Direction as it at least caused his stepdaughter, who was a member of his family, to be fearful. CHCY has accepted that his actions would have caused the family member to experience a degree of fear.
- CHCY's violent conduct was very serious, occurred on three separate dates: 17 February 2021 (2 counts of rape and 4 counts of indecent treatment), a date between 16 April 2021 and 28 June 2021 (1 count of indecent treatment), and 12 July 2021 (2 counts of indecent treatment) against his stepdaughter and that the sentencing remarks described that the 'impact to the victim is substantial and ongoing'.
- CHCY's evidence was he takes 'full responsibility' for his actions and that he has undertaken 12 sessions of psychological counselling with Mr Bird. However, there does not appear to be evidence that the Applicant has undertaken the medium intensity sexual offender program recommended by Mr Jordan and this should put doubt into the Tribunal's mind.
The Respondent contended that Primary Consideration 2 weighs heavily against the revocation of the cancellation of CHCY's visa.

[67]

CHCY submitted:
- He had arrived in Australia at the age of 16 and has continued to live in Australia up to the present day for a total of 21 years of his life.
- This gives significant weight towards the strength, nature and duration of his ties to Australia having lived here for more than half of his life while understanding part of his formative years were spent living in New Zealand.
- The significant duration of his residency in Australia, his 3 biological children and step-son that consider this country as their home as they were born in Australia and can receive their citizenship certificates, his parents and immediate family support also reside in Australia.
- He believes significant weight should be given to the following factors:
  - his oldest son will begin his university education in March 2024, his son recently became an Australian citizen and has only known Australia as home having lived here since he was an infant. Relocating to New Zealand would heavily impact his studies as he has gained a scholarship to RMIT and against his mother's and CHCY's wishes, his son feels he would have to return to New Zealand with his family if CHCY's visa was cancelled as he cannot bear to be apart from his family unit.
  - His 3 biological children were all born in Australia and can receive full citizenship.
  - His parents who have been supporting him and his family emotionally and financially all reside in Australia as well as his sister who is now an Australian citizen and her family also reside in Australia.
- He commenced working in Australia when he arrived in 2004 and continued until 2022 for a total of 18 years, until he was imprisoned, being a contributing taxpayer to the Australian government.
- He possesses the necessary skills, knowledge and machinery licences to excel in civil construction to further help the Australian community and infrastructure. He has full time employment ready to commence as soon as he is released from detention with his sister's construction company. He wishes to support his family financially, repay his parents for their generous support towards his legal fees and support of his family, give back to the community and to be a law-abiding tax-paying resident once again.
In CHCY's statement of 23 December 2022, he outlined his ties to the Australian community:

[69]

CHCY contended that Primary Consideration 3 weighs significantly in favour of the revocation.
The Respondent submitted:
- CHCY has indicated that he has immediate family in Australia, being his wife and three minor children, his adult stepson, his sister, his mother and stepfather (all of whom are New Zealand citizens), and that he has a close relationship with them. The Respondent accepts that a negative decision against CHCY would have a negative impact on these family members in Australia.
- CHCY's wife had indicated that if her husband were to be removed to New Zealand, she and her children would move to New Zealand to be with him, with the exception of her adult son, CHCY's stepson, who would remain in Australia to study. The Respondent accepts that there would be difficulties arising from CHCY's family unit being split, and also for his wife and children having to relocate to New Zealand. However, the Respondent notes that CHCY's stepson is now an adult, and that he would be able to maintain contact with the Applicant via electronic means, visit his family in New Zealand or as indicated at the hearing, may choose to relocate to New Zealand with his family.
- It also accepts that a decision not to revoke the cancellation of CHCY's visa would be difficult for his mother and stepfather, who would face a situation of having to choose between remaining in Australia with CHCY's sister's family or returning to New Zealand to be with CHCY and his family.
- CHCY's mother had breast cancer in 2020 and in 2022, and his stepfather had a heart attack in 2021, and his removal from Australia would prevent him from providing physical assistance to his mother and stepfather. However, the Respondent notes that there is no evidence to suggest that his mother and stepfather are reliant on others for daily activities.
- CHCY also has other family members in Australia including his brother-in-law, aunts, uncles, and two and nieces and a nephew (minor children). It appears that they are all citizens of New Zealand.
- CHCY arrived in Australia in 2004 at the age of 17 and has spent a small amount of his formative years in Australia but acknowledges he has been in Australia for around 20 years.
- CHCY has volunteered for the King's Church by setting up and removing seats for meetings and has been employed in Australia in various roles, including as a manager at KFC for an extended period of time, a warehouse supervisor, warehouse storeman, and machine operator/driver at various companies.
- It accepts that CHCY has social ties to the Australian community by reason of his time spent in Australia and his work and volunteering history.
The Respondent accepts that Primary Consideration 3 weighs in favour of the Applicant, particularly when considering the impact of his removal on his family in Australia. However, the Respondent contended that any weight assigned to this Primary Consideration is not determinative.

[72]

The Tribunal finds CHCY's immediate family will be greatly impacted by refusal of his visa. CHCY's extended close-knit and very supportive family all reside in Australia and the Tribunal accepts their evidence they would be devastated if he was removed to New Zealand. The Tribunal notes all CHCY's immediate family have the right to stay in Australia indefinitely and several have become or are in the process of becoming Australian citizens.
The evidence before the Tribunal was clear the only connection CHCY and his extended family had to New Zealand was their passports. The evidence indicated that removing CHCY from his immediate family would leave him without the prosocial factors he needs to keep to the path he has embarked upon and would put significant pressure on his family who remained in Australia.
The Tribunal relied upon CHCY's mother 's evidence that CHCY's removal to New Zealand would put her between a rock and a hard place. CHCY's mother explained:
- That her life was in Australia.
- The family could not continue their healing journey if CHCY was removed.
- She was still undergoing cancer treatment and had to remain in Australia to get necessary medical treatment as she could not get the same level of medical care in New Zealand.
- CHCY's wife and children have been residing with her and her husband since CHCY went to prison, they have built a strong bond and she would be devastated to lose this bond.
- CHCY's niece needed to continue her medical treatment in Australia.
- CHCY would struggle in New Zealand as he had no connections, nowhere to live, no work and would struggle to find work because of his convictions; this would put strain on the extended family; in Australia he would have stable accommodation, work and extensive family support.
- CHCY had a considerable debt for the sizeable legal fees they had paid on his behalf and he may never be able to repay the money if he was sent back.
- She did not want to have to choose between her children - one in Australia and one in New Zealand and they both needed her now because of the significant issues they were dealing with.
- She and other family members could go to New Zealand and visit CHCY but this would not be the same as having him close by.
- CHCY had experienced the difficulty of separation when living in Brisbane especially during COVID which was a stressful time for everyone but for their family in particular as it was when she was diagnosed with cancer, CHCY's stepfather suffered numerous heart attacks, his niece was diagnosed with leukemia and his wife had a difficult birth and she knew CHCY would struggle in New Zealand without his extended family support, most particularly from herself and his stepfather.
The Tribunal relied upon CHCY's wife's Statutory Declaration of 23 June 2023 stating:

[78]

My hope for the future is that I may be allowed to join my family in [redacted], where I can work on repairing my family. I wish to provide financial security, be a constant presence in my children's lives and to be considered safe to the community I'm in. > > My eldest son [redacted], he just completed year 12 where he won awards of achievement. This has led him to win a scholarship to university for mechanical engineering in [redacted]. I'm so proud of what he's achieved, I'm sad I've missed being present, but I hope I'll be allowed to be there for future graduations. > > [Redacted] is my second son, he's [redacted] and he'll commence his first year of high school which is another milestone I'll miss. He's a bright young man who wants to be a scientist. [redacted] was awarded Student of the Year 2022 and also recognised for his netball skills and trombone. > > [Redacted] is my first daughter who bubbles with joy and happiness, dances around the house and sings constantly. Sadly, [redacted] has learning disabilities which was our time for alternative strategies to bring her up to par. > > [Redacted], she needs everyone in her family, including me, to be in her life. She's one of my strongest reasons for wanting to stay in Australia, to see her grow, talk, sing and dance. To witness all her firsts, her ups and downs. Collectively, separating me from my children permanently would do more damage than I can imagine. To my children's well-being emotionally and physically and to my own mental health and further harm to myself and my family. > > My sister [redacted] is married with 3 children, [redacted]...[My sister] and her husband [redacted], run their own landscaping roadworks company and have assured me of employment in [redacted]. My sister and I are very close, and I am grateful for her love, support and forgiveness. > > My niece [redacted] fell ill in August 2021 with Leukemia. While compromised from chemo she contracted a hospital super-fungus which put her in a life threatening position over the next 12 months. [She] lost her right kidney, 1/3 of her liver and all of her large bowel and endured 29 surgeries to date. Covid had a profound and negative impact on myself as I was unable to physically support my sister and my niece due to interstate travel restrictions supporting my entire family in [redacted] was so impossible that staying, working and supporting them now can lighten the load with me doing my share of the carrying. > > My niece [redacted] has a love for art and creative writing, we have this in common..... I'm grateful for her phone calls, drawings and stories and hope to be able to return these in person. > > My nephew [redacted] has just been diagnosed with high-functioning autism. He requires learning strategies, (like my daughter) and with his behaviour which can escalate rapidly. I'm sorry that I couldn't be more helpful to my sister but it is my hope to change that if my visa is returned to be a better brother and uncle.

[79]

CHCY contended that Primary Consideration 4 weighs significantly in favour of the revocation.
The Respondent submitted:
- CHCY has three minor children in Australia and has been present in their lives except for the period for which he was in custody. His presence in the life of his youngest children would therefore be more limited due to the young age of the child and the proportionately larger part of the child's life for which he was in custody. Nevertheless, it appears that CHCY is likely to play a parental role in each of these children's lives. He has provided letters of support from his family, artworks from his children, and photographs of the family.
- It accepts that it would be in the best interest of each of CHCY's children for the cancellation of his visa to be revoked.
- However, it appears that if CHCY were to be removed to New Zealand, it would be likely that his three minor children, together with their mother, would also move to New Zealand with him.
- It accepts that a decision to not revoke the cancellation of CHCY's visa would have, to some degree, a negative impact on his three children in that they will have to move to New Zealand. They would likely be separated from their stepbrother and perhaps their grandparents in Australia, depending on their grandparents' intentions. However, it does not appear that the Applicant's minor children would be separated from their parents. They would be able to visit their relatives in Australia if they relocated to New Zealand and would also not likely have language barriers.
- CHCY has described a good relationship with his two nieces and one nephew being the children of his sister. His sister, who is the mother of the children, has provided a statutory declaration in support of this relationship and advocating for CHCY to stay, stating that 'if CHCY is allowed to stay, there is no question that he will play an increasingly influential role with my kids'.
- CHCY has had a close relationship with his nieces and nephew and that a decision against him would not be in the best interests of those three children. However, the Respondent contended that any negative impact is moderated by the fact that the children's parents already fulfil a parental role in the children's lives.
The Respondent accepts Primary Consideration 4 weighs in favour of revocation of the cancellation of CHCY's visa, although not strongly so, noting that his biological children would not likely be separated from their birth parents and that they will be able to visit their relatives in Australia if he was removed to New Zealand. Further, CHCY does not have a parental role in relation to his minor nieces and nephew.

[85]

CHCY submitted:
- He understood that non-revocation may be appropriate simply because the nature of his offences are such that the Australian community would expect that he should not be given his visa back. But he poses no risk of reoffending or causing physical harm and the reports from his psychologist all confirm that the risk is very low.
- He has accepted his offending caused significant harm to his family and most particularly his stepdaughter.
- The judge's sentencing remarks noted he should not be considered a paedophile and his compromised mental health, for which he has received successful therapy, contributed to his impulsive behaviours. Through successful therapy he has learned that his way of thinking in the moment of the offending was very wrong and it has taught him a greater understanding of how very wrong he was. His previous way of thinking doesn't reflect the perception he has towards it now or the coping strategies in place to greatly decrease the concern of him reoffending.
- The Australian community should have faith he is no longer a risk thanks to the many coping strategies he now has in place.
- The medium intensity sexual offender program was not made available to him whilst in custody as it was not possible for him to do any courses of that nature due to being sentenced on a Partially Suspended Sentence where no parole conditions were needed to be met in order to be released from prison.
- Wolston Correctional Centre awarded him a Certificate of Appreciation because of his good behaviour and positive influence upon the other inmates and he was moved to the 'residential' side of the complex.
- He has overcome depression, anxiety and low self-worth through therapy by learning and implementing multiple coping strategies into his day-to-day life such as mindful breathing, daily prayers and many other methods of coping with any levels of stress.
- He doesn't have a drug or alcohol addiction or gambling problem.
- He is a father who wants to work hard and make money to look after his family.
- He accepts the serious error he made with breaching his bail condition which allowed him to be with his wife and 4 children, but not stay overnight in the family home. However, it was very hard for his young children to understand why their family was torn apart and even harder for him to explain that it was all his fault. He sincerely apologised for his actions, was ordered to pay a fine of $200 with no conviction recorded and feels this judgement indicated he was not at any risk of reoffending.
CHCY acknowledged that at face value, Primary Consideration 5 carries weight against him but the Tribunal should also consider his great remorse for his actions, his rehabilitation already undertaken, and the numerous protective factors which will ensure he never offends again. Indeed, the Tribunal should consider the greatest deterrent to his reoffending is his desire to rebuild his family and to regain the trust of the Australian community. He sees himself as an Australian and he wants to continue to contribute to this great nation by being a productive member of the community supporting his family through hard work, paying his taxes, raising resilient children, practicing his faith and volunteering to help others not to go down the path he so wrongly chose.
The Respondent submitted:
- Paragraph 8.5(4) provides that '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'. As such, the Respondent respectfully contended that the Tribunal is required to accept the community expectations as expressed in the Direction, rather than to make its own assessment of community values on behalf of the Australian community. However, the weight to be attributed to Primary Consideration 5 remains a matter for the Tribunal's determination.
- Paragraph 8.5(2) of the Direction provides that 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. It provides that the Australian community expects the Australian Government to cancel visas of non-citizens if they raise serious character concerns through, inter alia, conduct involving acts of family violence (paragraph 8.5(2)(a)) and commission of serious crimes against children (in this case, a child) (paragraph 8.5(2)(c)). Accordingly, given the very serious nature of the Applicant's offending, being Rape - domestic violence offence and Indecent treatment of children under 16 lineal descendent/guardian/carer - domestic violence offence, the Respondent contended that the Australian community would expect CHCY's visa to remain cancelled simply because of the nature of the offences.
The Respondent contended that Primary Consideration 5 weighs heavily against the revocation of the cancellation of CHCY's visa.

[88]

Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.
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 question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12. The word "generally" contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.

[108]

As noted in paragraph 9 of the Direction, decision-makers are not limited to the four matters outlined and may consider other factors. CHCY submitted that New Zealand was a small place, and he did not want to cause the victim any more stress or psychological harm with his presence in the same country where she has gone to establish a new start to life. Particularly as it appears she has been receiving counselling, returned to her studies and is recovering well, he did not wish to undo any of her hard work she had done to get through this very traumatic event that was all his fault.
The Respondent contended that CHCY's own evidence had been he had no desire to make any contact with his stepdaughter, that he would return to a city in New Zealand where his stepdaughter was not residing and that it was highly unlikely he would unintentionally make contact with his stepdaughter.
The Tribunal perversely observes it is the victim of CHCY's offending who has been removed from Australia, the only country she has known and away from her mother, siblings, extended family and friends. It is the victim who has had to find a new life in a country she did not know with a father she had little to no contact with. The Tribunal was advised by CHCY's mother that whilst they have had no direct contact with the victim and have not been able to reconnect with her, they have heard through the police and members of CHCY's family that the victim is doing well.
The Tribunal does not consider that New Zealand is such a small place that CHCY could not use his wits to avoid running into the victim unawares. However, the Tribunal did consider that the victim may suffer trauma from the knowledge that the place she had run to be safe in is no longer so secure as her perpetrator is now residing in her safe haven.
The Tribunal places no weight on this other consideration as it finds the concerns raised by CHCY in respect of the primary and other considerations have addressed his concerns about being removed to New Zealand.

[109]

CHCY contended the evidence from the psychologist reports indicate he would not be a threat to the Australian community if he were to be released. He has never committed prior offences. He has never previously been involved in police incidents involving anyone in the Australian community and it was unfathomable that he would suddenly start offending against innocent third parties, especially considering the strong disincentives for him to do so.
CHCY apologised for the very horrible and serious crimes that he has committed and understands that the seriousness of his crimes weighs heavily against him for revocation. CHCY contended the impact and the ripple effect that this decision would have on his family would be substantial. His family members affected by the decision are law-abiding, long-term residents of Australia. They are all committed to Australia and none of them want to leave.
CHCY contended if he was successful in being released back into the community, he wanted to do everything within his power to prove that he deserves this chance and wishes to put everything he has learnt, all the strategies that he now possesses to help anyone in need and for the greater good of this amazing country which his extended and very close family call home.
CHCY contended he arrived in Australia when he was 16, has lived here continuously for almost 21 years, and made positive contributions to Australia through his industrious and strong work ethic.
CHCY contended his three biological children have the right to become Australian citizens and will do so if they are allowed to stay in Australia, but they would no longer have that privilege if removed from the only place that they too have known as home. CHCY contended his children may be New Zealanders by decent, but they are Australians at heart.
CHCY contended all his children will be the next generation of great Australian citizens that will contribute to the greater community. If permitted to stay in Australia, his wife and children will become full Australian citizens, and the only reason they have not done so yet is due to no income support being provided by himself.
CHCY submitted his oldest son will be starting his university degree for which he earned on a scholarship that is only valid in Australia, it would be greatly disrupted by relocating to a country he has not been to since he was born. However, his son has made it very clear, against his and his wife's wishes for him to remain in Australia, that it would be too hard on him to be apart from his parents and his siblings. He has expressed to his family that it would be very difficult for him to concentrate on his schooling and education if his family is torn apart which is why he does not wish to stay in Australia without them.
CHCY submitted the family have a 'Post Release' plan if his visa is restored. He will return to his wife and children, he has employment arrangements with his sister's business, will live close to his parents and to his sister and her family. He will be able to hit the ground running and reassume his role as the father of his young children. He will be able to financially provide for his family and provide care to those that love and need him.
CHCY submitted revocation of the decision to cancel his visa will ensure that his wife and children, his parents, his sister and her family, can heal the pain, and move on. CHCY contended other reasons in favour of revocation should weigh heavily in his favour. CHCY submitted his offending was isolated and uncharacteristic and the evidence does not suggest that anything like it would ever happen again.
The Respondent contended that CHCY does not pass the character test because he has a 'substantial criminal record' as defined in subsection 501(7) of the Act. Further, having regard to the considerations in the Direction, the Respondent submits that the Tribunal cannot be satisfied that there is another reason why the Tribunal should revoke the decision to cancel his visa.
The Respondent contended that Primary Considerations 1, 2, and 5 should weigh very heavily against the Tribunal being satisfied that there is another reason why the cancellation decision should be revoked, noting in particular the very serious nature of the offence which involved rape and indecent treatment of his 14 year old stepdaughter and the fact that he has not attended the medium intensity sexual offender program recommended by Mr Jordan or a program of a similar nature.
The Respondent accepts that Primary Considerations 3 and 4 and Other Consideration 2 (to a limited extent) weigh in CHCY's favour, but the weight that the Tribunal should give to these considerations should be moderated due to the fact that his wife and minor children appear willing to travel to New Zealand with him in the event of a non-revocation decision, and that New Zealand is a country with similarities to Australia in language and services available, and is where CHCY and his wife grew up. As such, the Respondent contends that these considerations are outweighed by Primary Considerations 1, 2, and 5.
The Respondent submits that the present case is one that falls within a kind described in paragraph 5.2(6) of the Direction, which provides that:

[111]

Accordingly, the Respondent contended that the correct or preferable decision is for the Tribunal to affirm the delegate's decision not to revoke the decision to cancel CHCY's visa pursuant to section 43(1)(a) of the AAT Act.
Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461, 'the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501'.
Of the Primary Considerations the Tribunal found:
- Whilst CHCY was a low risk of reoffending, his offending was of such a nature that it must be considered serious even though the Tribunal did not consider he posed a measurable risk of causing physical harm to the Australian community. The Tribunal therefore considered that protection of the Australian community weighs in favour of discretion being exercised to refuse to grant the visa.
- The evidence before the Tribunal demonstrated CHCY had been convicted of family violence and found that this consideration weighs in favour of affirming the visa refusal.
- The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh strongly in favour of granting the visa. CHCY has lived in Australia for the majority of his life and his minor children know no other country.
- The Australian community would expect someone who had committed offences against a minor in his care not to be granted a visa and found this factor weighs in favour of discretion being exercised to refuse to grant the visa.
- Of the other considerations, the Tribunal determined that the extent of impediments if removed, was engaged, finding that if CHCY and his family were to return to New Zealand this consideration weighed in favour of revocation. The Tribunal considered all the other factors were neutral.
The Tribunal fully appreciates that CHCY has not merely breached but violated the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis his visa should be cancelled. However, overall, the Tribunal found CHCY's particular circumstances and those of the victim satisfied the Tribunal that there is another reason why the cancellation decision should be revoked.
Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of CHCY's visa should be revoked.

CHCY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 334 (5 March 2024)

At a glance

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Judgment (114 paragraphs)

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Cases Cited (3)