Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 32 (16 January 2020)

1. Following receipt of this warning, the Applicant committed approximately 31 additional offences between 20 September 2007 and 4 March 2016 (SG1, pages 172-176; A11, page 37). These offences included (SG1, pages 172-174):
   • (a) "Aggravated Burglary and Commit Offence In Place" for which the Applicant was sentenced to an 18 month conditional suspended imprisonment order with programme and supervision conditions in the District Court of Western Australia on 17 February 2009;
   • (b) "Aggravated Burglary with Intent in Place" for which the Applicant was sentenced to a 12 month Community Based Order in the Armadale Magistrates Court on 13 January 2015; and
   • (c) three counts of "Sexually Penetrated a Child over 13 and Under 16" (the Child Sex Offences) for which the Applicant was sentenced to a total term of imprisonment of four years and one count of "Breach of Community Based Order" for which the Applicant was sentenced to a cumulative term of imprisonment of one year in the District Court of Western Australia on 20 January 2017.
2. In a letter dated 29 May 2018 from the Department of Home Affairs, the Applicant was advised that his Class BF transitional (permanent) visa (the Visa) had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) (G13, page 71).
3. The basis for the cancellation was that the Applicant did not pass the character test due to either having a substantial criminal record or because he had been convicted of sexually based offences involving a child (the Child Sex Offences). The Applicant was advised that he could make representations to seek revocation of the decision to cancel his Visa (G13, pages 72-73).
4. In an application dated 19 June 2018 the Applicant requested revocation of the cancellation decision (G14, pages 77-92).
5. The Delegate of the Minister for Home Affairs (the Delegate) who considered the Applicant's revocation request summarised the Applicant's submissions as to why the cancellation decision should be revoked as follows (G4, page 26):
   • - he has two nieces and nephew in Australia who will be upset if he was gone
   • - at the time of the offences, he was experiencing drug and alcohol addiction, poor health due to stress, homelessness, the separation of family members and a relationship breakdown
   • - he has attended several rehabilitation programs in prison to address his substance abuse and sexual offending, which will reduce the risk of re-offending
   • - he has completed vocational courses so that he can contribute to the community
   • - he is remorseful for his offending and recognises the pain it has caused those directly and indirectly affected by his offending
   • - his immediate family members all live in Australia
   • - his mother is very ill and needs his support, she would be unable to travel to visit him
   • - his father has been supportive throughout his time of incarceration and will continue to support his transition back into the community
   • - he completed his education in Australia and has worked in various industries
   • - he has been living in Australia since he was one and a half years old and has no memory or knowledge of his country of birth.
6. On 22 October 2019, the Delegate decided not to revoke the cancellation of the Applicant's Visa (G4, page 24). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
7. The Applicant was notified of the Reviewable Decision by a hand delivered letter dated 23 October 2019 (G2, page 15) on 24 October 2019 (G25, page 169).
8. On 25 October 2019, the Applicant lodged an application for review in the General Division of the Tribunal (G1, pages 1-3). Consequently, the Applicant filed his application for review within the 9 day period prescribed by s 500(6B) of the Act.
9. Subsection 500(6L) of the Migration Act effectively provides that the 84 day period starts to run from the date the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 24 October 2019, meaning that the Tribunal must hand down a decision with respect to this application by no later than 16 January 2020.

1. The issues for determination by the Tribunal are:
   • (a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
   • (b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79).

1. The hearing took place on Monday 6 January 2020. The Applicant appeared in person and was represented by Mr Glenister. The Respondent was represented by Mr Gerrard.
2. The Applicant gave oral evidence and was cross-examined. The Applicant also called his father and sister as witnesses.
3. The Tribunal admitted the following documents into evidence at the hearing:
   • (a) Applicant's Statement of Facts, Issues and Contentions (SFIC) dated

18 December 2019 (Exhibit A1); * (b) undated statement of the Applicant, filed in the Tribunal on 19 December 2019 (Exhibit A2); * (c) undated statement of Ms B, a friend of the Applicant, witnessed on 20 November 2019 (Exhibit A3); * (d) undated statement of Ms C, a friend of the Applicant, witnessed on 20 November 2019 (Exhibit A4); * (e) undated statement of Mr P, a friend of the Applicant, witnessed on 31 October 2019 (Exhibit A5); * (f) undated statement of the Applicant's sister, witnessed on 1 January 2020 (Exhibit A6); * (g) undated statement of the Applicant, filed in the Tribunal on 1 January 2020 (Exhibit A7); * (h) Freedom of Information application acknowledgment letter dated 9 December 2019 (Exhibit A8); * (i) Psychological Pre-Sentence Report dated 2 October 2016 (Exhibit A9); * (j) Pre-Sentence Report (Addendum to Psychological Report) dated 11 October 2016 (Exhibit A10); * (k) Transcript of District Court of Western Australia Sentencing Proceedings of 17 January 2017, 18 January 2017 and 20 January 2017 (Exhibit A11); * (l) Respondent's SFIC dated 2 January 2020 including Annexure A - Chronology of Applicant's offences (Exhibit R1); * (m) Section 501 documents (G documents) numbered G1 to G25 and comprising 169 pages (Exhibit R2); * (n) Supplementary Relevant Documents numbered SG1 to SG2 and comprising pages 170 to 348 (Exhibit R3).

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

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

• (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

• (ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

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

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by

subsection (7); or

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

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

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

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

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of

12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

1. Section 501CA of the Migration Act further provides:
   • (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
   • (2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
     • (a) would be the reason, or a part of the reason, for making the original decision; and
     • (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
   • (3) As soon as practicable after making the original decision, the Minister must:
     • (a) give the person, in the way that the Minister considers appropriate in the circumstances:
       • (i) a written notice that sets out the original decision; and
       • (ii) particulars of the relevant information; and
     • (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
   • (4) The Minister may revoke the original decision if:
     • (a) the person makes representations in accordance with the invitation; and
     • (b) the Minister is satisfied:
       • (i) that the person passes the character test (as defined by section 501); or
       • (ii) that there is another reason why the original decision should be revoked.

1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
   • (1) The Minister may give written directions to a person or body having functions or powers under this Act... if the directions are about:
     • (a) the performance of those functions; or
     • (b) the exercise of those powers.
2. Further, s 499(2A) of the Migration Act states that "A person or body must comply with a direction under subsection (1)".
3. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65 which was made by the Minister for Immigration and Border Protection.
4. Paragraph 6.1 of Direction No 79 sets out the "Objectives" of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
   • (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
5. Paragraph 6.2 of Direction No 79 provides general guidance as follows:
   • (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
   • (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
   • (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
6. Paragraph 6.3 of Direction No 79 sets out the principles which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
   • (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   • (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
   • (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   • (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
   • (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
   • (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
   • (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
7. Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
   • (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
     • (a) Protection of the Australian community from criminal or other serious conduct;
     • (b) The best interests of minor children in Australia;
     • (c) Expectations of the Australian community.
8. Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

(a) International non-refoulement obligations;

(b) Strength, nature and duration of ties;

(c) Impact on Australian business interests;

(d) Impact on victims;

(e) Extent of impediments if removed.

1. Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
   • (1) Informed by the principles in paragraph 6.3 above, a decision-maker:
     • (a) ...
     • (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.
2. Further guidance as to how a decision-maker is to apply the considerations in Direction No 79 can be found in paragraph 8 of Direction No 79 which provides:
   • (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
   • (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
   • (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
   • (4) Primary considerations should generally be given greater weight than the other considerations.
   • (5) One or more primary considerations may outweigh other primary considerations.

1. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a "substantial criminal record" as defined by s 501(7) of the Migration Act.
2. A person has a substantial criminal record if they have been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c) of the Migration Act).
3. As noted in the background section above, the Applicant has previously been sentenced to custodial terms of imprisonment of 12 months or more on 6 May 2004, 19 October 2004, and 20 January 2017. Consequently, the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act.
4. He also does not pass the character test under s 501(6)(e) because he was convicted of the Child Sex Offences in the District Court of Western Australia on 20 January 2017.
5. The Applicant has conceded that he does not pass the character test (Exhibit A1, paragraph [2]).
6. Consequently, the Tribunal must now consider whether there was "another reason" why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).

IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)

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

When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community...

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

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

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

(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)

1. Paragraph 13.1.1(1) of Direction No 79 further provides:
   • (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
     • (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
     • (b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
     • (c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
     • (d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
     • (e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
     • (f) The cumulative effect of repeated offending;
     • (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
     • (h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
     • (i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
2. The Applicant commenced offending as a juvenile, first appearing before the Perth Children's Court in 1999, when he was approximately 15 years of age. A summary of the Applicant's juvenile offending is set out in the following table (R1; SG1, pages 177-179) (the Table of the Applicant's Juvenile Offending):

No punishment section 67 Young Offenders Act 1994 (WA)(CI)

No punishment section 67 Young Offenders Act 1994 (WA)(CI)

Burglary & commit offence aggravated (place) (2 counts)

No punishment section 67 Young Offenders Act 1994 (WA)(CI)

No punishment section 67 Young Offenders Act 1994 (WA)(CI) (global)

No punishment section 67 Young Offenders Act 1994 (WA)(CI) (global)

1. The Applicant's first adult offences were committed in 2002 when he was approximately 18 years of age. A summary of the Applicant's adult offending is set out in the following table (the Table of the Applicant's Adult Offending) (A11, page 37; R1, Annexure A; R2, G6, pages 37-39; R3, SG1, pages 172-179 and 200; transcript, pages 78-80). The Table has been compiled based on the records of the Applicant's offending provided in the Western Australian Police History for Court (SG1, pages 172-179) and the National Criminal History Check (G6, pages 37-38); however, where there is a discrepancy between those records and the transcript of Sentencing the latter has been used.

Drive Contrary to Learner's Permit; Road Traffic Act 1974; s 50; Learner's Permit

No Driver's Licence (Fines Suspension); Road Traffic Act 1974; s 49(1)(a) & 2(a)(iv); Learner's Permit

MDL disqualified s51: 3 months; mandatory (concurrent)

Exceed 0.02g alcohol per 100ml of blood; >=0.02g/100ml but > ...in summary, the circumstances are such that during a period from no doubt March 2014 through to the date of the latest or the last offence is August -sorry, February 2015, you were then residing at the complainant's house.

You were there with the consent of the complainant's father and, in essence, your role was to - or one of your obligations was to effectively have some adult presence in the house while he was away. In respect of count 1 you were then residing at the house. There was a tent that was erected in the back yard where she and her friend were resting.

After the friend exited the tent you went into the tent and were with her; you kissed and caressed before penetrating her vagina with your penis for an extended period of time.

Count 2 on the indictment again is a count of sexual penetration but on this instance it's a count of sexual penetration by engaging in fellatio, that is to say, by placing your penis into her mouth. On this occasion in the evening of February 2015 I think it was then your birthday, there had been some drinking. She had been consuming alcohol and was affected by alcohol. She retired and went to her bedroom.

...

Count 2 was where... There was a small birthday party to celebrate your birthday. Friends attended. The complainant was intoxicated, retreated to her bedroom to sleep.

You entered her bedroom and lay down next to her and you woke her. You asked her to perform oral sex and she did - manoeuvred herself under the bed covers where you removed your underwear. She performed oral sex on you; that is to say, fellatio, for a period of time before you were disturbed by others present in the house. You dressed yourself and returned to the party, leaving her in the bedroom.

Count 3 is the offence of again sexual penetration of her vagina with your penis. On this occasion she was in her bedroom in February 2015. You entered her bedroom, lay down on the bed next to her. Again some kissing and caressing of her took place. You then penetrated her vagina with your penis for a short period of time, but had to stop due to someone coming - or wanting to come into the room. At the time, he then - you redressed and hid in her wardrobe to avoid being spotted by the complainant's friend.

The fact that you hind in the wardrobe simply highlights the fact that you knew you shouldn't have been doing what you were doing, and there was never any doubt about that.

1. The seriousness of the Applicant's offending is further reflected in the Sentencing Remarks of Birmingham DCJ, who stated that the Applicant was in a trusted position, that his relationship with the victim was for a lengthy period of time, that he was aware of her age, that the offending had a profound effect on the victim, and that the Applicant infected the victim with a sexually transmitted disease (chlamydia) (G10, page 52):

The aggravating features to the offending. This is a 14-year-old girl. It's at a house where you're staying. You were in a position of trust. While the father was away you were expected to be looking after her and her family,

The relationship was for a lengthy period of time, and throughout that period you were aware of her true age but continued offending. It had a profound effect upon her. You maintained indeed that it was her fault. Indeed initially when this young girl contracted chlamydia it was suggested that she was sexually active and had contracted it elsewhere. That was a submission made by your counsel. And he would only have been doing that on instructions and information from you.

When I did not accept that and it was to be challenged then Mr Hope quite properly informed the court that he's been instructed that you now accepted that it was you that infected Ms - or the complainant with chlamydia. You qualified that by saying you did so unwittingly, and only realised that you had yourself been infected when you were incarcerated at Hakea Prison. I don't accept that. It's an infection which you undoubtedly would have had symptoms and been aware.*

But what it also highlights is that whilst you were having this supposedly loving relationship with this 14-year-old girl, you were having sexual activity with other persons.

*The Tribunal notes Mr Glenister's submission that chlamydia is a symptom-free sexually transmitted disease; however there was no medical evidence before the Tribunal in support of this submission. In any event, the identification of aggravating factors by the Sentencing Judge in determining the sentence to be imposed is an exercise of judicial power. Consequently, it is not open to the Tribunal to reach a contrary conclusion (see HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [77]).

1. His Honour, Birmingham DCJ, expanded on the detrimental effect that the offending had on the 14-year-old victim, which again indicates the seriousness of the offending. This included the victim having post-traumatic stress disorder, anxiety and depression, and being unable to complete her schooling. More specifically, His Honour stated (G10, pages 53-54):

It's a serious offence, and the impact of the offence is highlighted by the victim impact statement and the extent to which your conduct has impacted upon the complainant. She's now 15, and she describes how prior to this incident she was attending high school, she got A's and B's and always tried to do her best.

She couldn't go to school afterwards. She didn't strive to become better, and she didn't complete her year 12 studies. She has no desire for a career or a bright future. She can't bear to go to school and hear nasty comments being directed at her.

They're being directed at her because she's obviously now revealed amongst those who know her that she's been engaged in sexual conduct with someone who's over 30 - 30 years of age, 29 at the time. And she was when this started just 14.

...

The complainant describes how she's unable to sleep properly, and she's highly strung. She takes out her frustrations on those closest to her. She doesn't feel comfortable with herself. She has difficulty in interacting with others, and indeed now behaving with boys of her own age. She feels uncomfortable and worthless.

The fact that she's been infected with a sexually transmitted disease was not something she mentioned but it was something that came to light in the course of the investigation. The fact that she didn't disclose that is clearly understandable because of the embarrassment that that would have caused a young girl.

She's been diagnosed with post-traumatic stress disorder, and anxiety and depression. She says she can't be alone in her head; that is to say that her thoughts are infected by what has happened to her such that she's confused, embarrassed, ashamed, depressed, wondering how this could have happened, how she could have got to that point.

When one looks at the material in the brief and the photographs that are there of you and her in a spa and things such as that, you carried on with her as though she's an adult sexual partner when, in fact, she's a young girl. And you were the adult, and you were the person who was just simply taking advantage of a girl whose emotions had been distorted by your conduct. She goes on to say:

I don't feel normal or happy on outings with friends. I worry about running into you because you live nearby. I don't know how I could protect myself considering that I'd failed once before. I can't be reassured that I'm safe. I remember everything on a regular basis. I'd like to feel one day that I'm special and beautiful, slim, curvy, bright, happy and have an education. I want to be someone who deserves to feel safe, secure -

- and so on. These are her desires that have been impacted by you.

1. During sentencing His Honour further noted that the victim experienced social isolation from her friends and family as a result of the offending. His Honour also noted the potential for any future relationship of the victim to be detrimentally impacted due to the offending (G10, page 60):

...she now feels a social pariah with her friends, she's dropped out of school, people within the community, her relationship with her family and, in particular, now has again the problems dealing with people her own age. So as to whether she enters into a satisfactory sexual relationship or loving relationship with others in the future will undoubtedly be affected.

1. Applying paragraph 13.1.1(1)(a) of Direction No 79, the Applicant's sexual offences (the Child Sex Offences) against a 14-year-old victim must be viewed very seriously, particularly in light of the comments of the Sentencing Judge regarding the seriousness and context of the offending and its impact on the young victim.
2. Paragraph 6.3(3) of Direction No 79 is also applicable to the Applicant's offending because it states that a non-citizen who has committed a "serious crime" including crimes of a sexual nature against children should generally expect to forfeit the privilege of staying in Australia.
3. Paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. As can be seen from the above Table of the Applicant's Adult Offending, the Applicant also has repeated traffic and driving related offences.

Mr Glenister acknowledged in closing submissions that the Applicant's driving offences were of a fairly consistent and persistent nature. By way of mitigation however, Mr Glenister submitted that the Applicant's offences were primarily related to the type of driver's license that he held, (for example by driving contrary to his learners permit), or did not hold, (for example driving whilst unlicensed), and that (as is also relevant to the likelihood of re-offending) the Applicant would not commit these types of offences in the future because upon release into the Australian community he would have a driver's licence. The Tribunal disagrees that these factors mitigate the seriousness of this type of offending. Licensing rules are in place to ensure drivers are suitably qualified and responsible in order to protect innocent road users from harm. Additionally, as well as these types of licensing related offences, the Applicant also has convictions for driving under the influence of alcohol (2008), reckless driving (2008) and driving under the influence of an illicit drug (2014). Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that "...driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly." 4. Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) also noted the serious nature and adverse consequences of driving offences. In Bartlett, Senior Member Tavoularis stated at

[43]-[45]: 1. ...There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle.

His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels. 2. I have similar concerns about the Applicant's failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle. 3. The Applicant's driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users 'go to the essential safety of the community'. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle - be it drinking and driving, driving without a licence, or driving an unregistered vehicle - can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.

1. In MJNN and Minister for Home Affairs [2019] AATA 3205, this Tribunal applied the above comments of Member Webb and Senior Member Tavoularis at [53] and [54]. The Tribunal stated, at [55]:

...The Applicant's record of repeat driving offences tends to indicate an ability [sic] to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant's driving offences should also be viewed as serious.

1. A substantially similar observation can be made with respect to the current application, when regard is given to the Applicant's history of driving offences, set out in the above Table of the Applicant's Adult Offending.
2. As noted above, on 6 May 2004 the Applicant was sentenced in the Supreme Court of Western Australia to an effective term of imprisonment of 15 months for two counts of "Robbery Whilst Armed in Company" and one count of "Attempted Robbery Whilst Armed in Company" (G6, pages 38-39; SG1, page 176). These offences were robberies committed against 14 year old male victims with the Applicant's brother where his brother pretended to be armed with a knife to obtain the wallets of the victims (G11, page 65). Paragraph 13.1.1(1)(b) of Direction No 79 further provides that "crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed". Whilst these offences were committed some time ago and are of a far less serious nature than the Applicant's sexual offending, armed robberies committed against 14-year-old victims are, in the Tribunal's opinion, serious.
3. On 19 October 2004, the Applicant was sentenced in the District Court of Western Australia to a term of 18 months imprisonment for one count of "Robbery in Company" (G6, pages 38; SG1, page 176). This offence was described by the Sentencing Judge, Macknay DCJ as (G12, page 68):

...a bicycle-born mugging of the complainant near the Leederville railway station in the course of which at least three of you became involved. Your elder brother Terrence punched the complainant in the mouth and someone - either you or another man - took his wallet.

1. Macknay DCJ went on to state that this offence was a robbery with violence against a victim who was "easy prey" (G12, page 69):

This was a nasty offence, a group of people picking on a single person, someone who was plainly a recent arrival to this country, it seemed to me of a fairly nervous disposition and probably an easy prey. Actual violence was done to him. He was punched in the face and, as I say, his wallet was then taken and the money was taken from it.

1. In the Tribunal's opinion, a robbery involving violence against a victim who was displaying signs of vulnerability should also be viewed as serious (paragraph 13.1.1(1)(a) of Direction No 79).
2. Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community, or government representatives or officials due to the position they hold, or in the performance of their duties, are serious. Children are considered vulnerable members of the community. This further shows the serious nature of the Applicant's offending, particularly with respect to his three convictions for the Child Sex Offences.
3. Applying paragraph 13.1.1(1)(d) of Direction No 79, the Applicant received a total sentence of four years' imprisonment for the Child Sex Offences. This term of imprisonment also reflected the serious nature of the Applicant's sexual offending. It was noted by the Sentencing Judge, Birmingham DCJ, that "in my view, the offending is so serious that only a term of immediate imprisonment is the appropriate disposition" (G10, page 60) and further, that "these offences are so serious that the question of suspension is simply not open" (G10, page 63).
4. The Applicant was previously sentenced to terms of imprisonment of: 15 months for two counts of the offence of "Robbery Whilst Armed in Company" and one count of the offence of "Attempted Robbery Whilst Armed in Company"; and 18 months for the offence of "Robbery in Company". A term of imprisonment is usually a last resort, and particularly given the young age of the Applicant at the time of sentencing, again reflects the seriousness with which the court regarded this offending.
5. With respect to the frequency of the Applicant's offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant commenced his offending conduct as a juvenile in approximately 1999. His offending continued into adulthood, with his last recorded offence having been committed in 2016. As an adult, the Applicant has committed approximately 34 criminal and traffic offences. Mr Glenister submitted in closing that there were essentially four different and separate trends in the Applicant's adult offending, namely driving offences, dishonesty offences, robbery offences and sexual offences. His submission was that whilst the Applicant's offending has become more serious, there was no "trend" due to the differences in the categories of offences committed by the Applicant which did not appear to be cumulative. However, the Tribunal's view is that the Applicant's offending, when viewed as a whole, can be regarded as lengthy and persistent and culminated in sexual offending against a minor (the Child Sex Offences), which is his most serious offending to date. In summary, the Applicant's offending can be regarded as frequent and as showing a trend of increasing seriousness.
6. With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant's adult offending spans approximately 12 years and approximately 34 offences in total (see above Table of the Applicant's Adult Offending at paragraph [43]). This volume of offending would have placed a burden on the resources of police, corrective services, and the courts.
7. There is no evidence that the Applicant has provided false or misleading information to the Department by not disclosing prior criminal offending, and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
8. Paragraph 13.1.1(1)(h) of Direction No 79 requires the Tribunal to consider "whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending..." As noted above at paragraph [5], the Applicant received a written warning on 8 December 2004 to the effect that he would be liable to have his Visa cancelled if he was convicted of any further criminal offences. Despite this warning, the Applicant went on to commit approximately 30 further offences. The Tribunal further notes the comments of Macknay DCJ on 19 October 2004 when sentencing the Applicant for one of the "Robbery in Company" offences. His Honour warned the Applicant that deportation may be a consequence of any further offending (G12, page 69):

I'm told that your eldest brother has already been deported and there is apparently a deportation notice out in relation to [the Applicant's other brother], so that, of course on the assumption that you do enjoy living in this part of the world, is another compelling reason of course for you to ensure that you don't get involved in this kind of activity again.

1. The Applicant should have appreciated the consequences of further offending, particularly in light of these warnings and the deportation of his two brothers. It is of concern that after these warnings the Applicant subsequently committed numerous offences, including the Child Sex Offences which are very serious. In the Tribunal's opinion a failure to respond to these warnings shows a disregard for lawful authority and lack of appreciation of the consequences of further offending.
2. Paragraph 13.1.1(1)(i) of Direction No 79 is not applicable because the Applicant has not committed any crime in prison or immigration detention.
3. In summary, the Applicant's offences include offences involving violence, although his violent offences were committed some time ago, and persistent driving related offending. In the Tribunal's opinion, these violent offences are serious because they involved harm to innocent members of the public. The Applicant's offending has culminated in the Child Sex Offences against a minor who is a vulnerable member of the community. These Child Sexual Offences in particular are very serious. The overall seriousness of the Applicant's offending is also reflected in the sentences imposed by the courts, the frequency and trend of increasing seriousness of his offending, and his reoffending subsequent to receiving a formal warning, and with the knowledge that he could face deportation. On balance, the Tribunal finds that the Applicant's offending, particularly his most recent convictions for the Child Sex Offences, is very serious and strongly weighs against the revocation of the cancellation of his Visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)

1. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
   • (1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
     • (a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
     • (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
2. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

(Footnotes omitted.)

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Moshinsky J stated at [68] that: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a "rational and probative basis".
2. Sexual offending against children can result in harm to victims of a significant physical and/or psychological nature. These harms were discussed by the Tribunal in Varley and Minister for Home Affairs [2019] AATA 376 at [76]. The Tribunal stated:
   1. With respect to the nature of the harm that could result if the Applicant is to reoffend in a sexual manner, the Respondent, in Exhibit R3, paragraph [26], referred the Tribunal to pages 15 - 16 of the Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Preface and Executive Summary (Final Report), which documented some of these harms. The following excerpt, which appears under the heading, "How does sexual abuse affect children"? on page 16 describes some of the harms that can be experienced by victims of child sexual abuse, including mental and emotional harms, difficulties with trust and intimacy, substance misuse, and developmental difficulties:

The most common impact of child sexual abuse is on the survivor's mental health. The impacts include: depression, anxiety and post-traumatic stress disorder; other symptoms of mental distress such as nightmares and sleeping difficulties; and emotional issues such as feelings of shame, guilt and low self-esteem. Mental health issues were often described as occurring simultaneously, rather than as isolated problems or disorders.

After mental health, the impacts survivors most commonly told us about were on their relationships. These included difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Survivors also frequently told us of impacts on their education and economic circumstances.

Survivors often told us they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse. This in turn affected their physical and mental health, sometimes leading to criminal behaviour or relationship difficulties.

The diverse impacts of child sexual abuse are often interconnected in complex ways, and can be experienced as a cascade of effects over a lifetime.

Part of the explanation for the profound and broad-ranging effects of child sexual abuse lies in the detrimental impacts that interpersonal trauma can have on the biological, social and psychological development of a child. Child sexual abuse can result in profound trauma, affecting the chemistry, structure and function of the developing brain and potentially interrupting normal psychosocial development at every critical stage of the formative years.

1. Applying paragraph 13.1.2(1)(a) of Direction No 79, the Tribunal finds that the nature of harm that could result if the Applicant is to commit similar Child Sex Offences in the future is potentially very serious.
2. Should the Applicant commit further traffic and driving related offences, members of the public could suffer physical injuries or loss of life, as well as psychological harm.

Applying paragraph 13.1.2(1)(a) of Direction No 79, the Tribunal also finds that the nature of harm that could result if the Applicant is to reoffend in such a manner is potentially serious. 3. In terms of general reoffending, the Applicant has prior convictions for dishonesty and aggravated robbery offences, as well as breaches of court imposed orders. The nature of harm from these offences is less serious and varied, and ranges from victims suffering economic loss (for example, for dishonesty offences) through to victims suffering physical or psychological injuries (as may be the case for an aggravated robbery). 4. The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79). 5. The Applicant has a lengthy criminal history commencing as a juvenile. Focussing on his adult criminal history which must necessarily be given the most weight, the Applicant has committed approximately 34 criminal and traffic offences over an approximate 12 year period. When sentencing the Applicant for the child sexual offences, the Sentencing Judge, Birmingham DCJ, stated (G10, page 58):

Your criminal history provides some insight and discloses that you have a persistent disregard and defiance of the law. It's a lengthy criminal history and it's not an aggravating feature for these offences, but it does demonstrate you're not entitled to any leniency for good character.

1. The Tribunal agrees with His Honour's comments and observes that the frequency and number of the Applicant's offences does tend to suggest a disregard for Australian laws and lawful authority, and suggests a likelihood of future offending. So too does the Applicant's lack of compliance with court imposed orders (including breach of a police order in 2008, and breaches of bail in 2008, 2012 and 2016). Indeed, in 2015 the Applicant was subject to a Community Based Order when he committed one of the Child Sex Offences (See G10, pages 58 and 62). Additionally, the Applicant continued to offend after receiving a written warning from the Department and an oral warning from the Sentencing Judge, as well as having witnessed his two brothers being deported on similar character grounds. Further, in a Treatment Assessment Report created on 29 March 2017 (R3, SG2, pages 313-314), the Applicant was assessed as being a "very high" risk of committing further general offending.
2. When sentencing the Applicant on 20 January 2017, Birmingham DCJ referred to the Applicant's Pre-Sentence Report dated 2 October 2016 which assessed the Applicant as being "a moderate to high risk of re-offending in a sexual manner" (G10, page 57; A9, page 8-9). The Pre-Sentence Report also stated that (A9, page 8):

Based on his results, Mr Mayes fell within a category of offenders who sexually reoffended at a rate of 11% within a five year period. When using a 95% confidence interval, offenders who scored in a like manner to Mr Mayes reoffended sexually at a rate of between 10% and 12.1% within a five year period.

1. Under the heading "Recommendations" (A9, page 9), the pre-sentence report stated:

Mr Mayes' treatment needs relate to him addressing his sexual offences; negative, antisocial and self-defeating attitudes and behaviour; substance misuse issues; decision-making and consequential thinking skills; concerning personality features; impulse control; coping skills; and interpersonal/relationship skills. After sentencing, he will be assessed for his suitability for departmental programs including sex offender treatment. On his release, he will need stable accommodation, full-time employment and the support of prosocial others. He should also abstain from alcohol and illicit substances and urinalysis is suggested.

1. A subsequent Pre-Sentence Report dated 11 October 2016 (A10, page 1) stated that:

Mr Mayes accepted the charges against him, however disputed the circumstances of the offence in what appeared to be an attempt to justify his offending. [Sentence redacted] In doing so, he is considered to have demonstrated reluctance to accept responsibility for the offences. Although he expressed regret for his offending, his demeanour whilst discussing this suggested his regret derived from the consequences of his behaviour on himself.

1. The recommendations section of this report stated, in part that (A10, page 3):

As indicated in the Psychological Report, Mr Mayes has displayed a tendency to impart blame onto external factors and deflect from his own offending attitudes and behaviours. This is seen to be a consistent trend as supported by prior Departmental records, and appears to be serving as a consistent barrier to Mr Mayes addressing his treatment needs.

1. The Sentencing Judge accepted the contents of these reports, noting that the Applicant was a moderate to high risk of reoffending in a sexual manner (G10, pages 57 and 60). The Sentencing Judge also queried the Applicant's expression of remorse, stating that, "The lateness of the plea is such that it does not indicate any remorse, but a late recognition of the strong case against you" (G10, page 59). It is some cause for concern, with respect to the likelihood of the Applicant reoffending, that these comments were made only three years ago, however they must be assessed in light of the Applicant's subsequent insights into his offending, treatment gains and other protective factors that may reduce the risk of the Applicant reoffending.
2. Between 30 March 2009 and 27 July 2009, the Applicant undertook the "Change and Emotions Program", attending 12 out of the 15 sessions (R3, SG2, page 272). In a Treatment Completion Report dated 11 August 2009, program facilitators reported that he made treatment gains in this program such as "having insight [into] the nature and function of emotions and the link to his offending" including his use of alcohol and or illicit substances as coping mechanisms. The report stated that the Applicant "impressed as having gained in terms of increasing his insight into ways to manage emotions in a pro- social manner which may assist him to maintain and build on the positive aspects he currently reports, and to avoid lapse/relapse to offending behaviour". The report continued on to state the opinion that the Applicant did not have any further treatment needs at that time (SG2, pages 271-274). It is of concern to the Tribunal that despite being assessed as having made reported gains and as not having any further treatment needs, the Applicant went on to commit numerous additional offences and to continue his alcohol and drug use.
3. To the Applicant's credit, he completed the Intensive Sex Offender Treatment Program (ISOTP) at Bunbury Regional Prison between 5 February 2018 and 11 September 2018 with reported treatment gains. Prior to his completion of the program, the Program Completion Report rated the Applicant's risk of reoffending in a sexual manner using three different treatment tools as follows (SG2, pages 263-264):
   • (a) LSRNR (the Level of Service/Risk, Need, Responsivity) for which the Applicant received a "Very High" score;
   • (b) Static-99R (described by the program facilitators as a "risk assessment tool [which] measures static (unchanging) risk for sexual and violent reoffending") for which the Applicant received a "Moderate/ High" score; and
   • (c) STABLE-2007 (described by program facilitators as "a risk assessment tool for use with sexual offenders which measures dynamic areas of risk for sexual recidivism") for which the Applicant received a "High" score.
4. The ISOTP Program Completion Report stated that the Applicant "displayed an ongoing commitment to identifying and addressing risk factors", and that he was able to develop a self-management plan (SG2, page 268). In the "Summary and Recommendations" section of the report (SG2, page 269), it was stated that the Applicant:

... was deemed to have made gains in addressing his identified criminogenic targets. These treatment targets were in the areas of attitudes/cognitions, including emotional identification with children, self-regulation issues and relationship problems. Mr Mayes now understands what he values in life, recognises the impact of his offending and has goals and plans in place to help him live offence free. As with all changes in behaviour, continued rehearsal of new skills will be required in order for these skills to be generalised and for lasting change to be effected. Thus, it is considered that Mr Mayes will need further support and/or counselling. This support could be provided during supervision by Mr Mayes [sic] Community Corrections Officer (CCO) should he be released to a period of supervised release, with referral to professional self-funded counselling on an as needs basis.

1. The program facilitators went on to suggest a number of conditions to be applied to any period of community supervised release including abiding by reporting requirements for child sex offenders, not to have unsupervised contact with females under the age of 16 years, ongoing psychological counselling or programs as directed by his Community Corrections Officer, drug and alcohol relapse prevention counselling, as well as urinalysis.
2. Unfortunately, the program facilitators did not provide any assessment as to whether, and to what extent, the likelihood of the Applicant reoffending had been reduced as a result of the treatment gains he achieved during the program.
3. The Applicant acknowledged, when giving evidence at the hearing, a relationship between his consumption of illicit substances and his offending (see for example, transcript, pages 47-48). When sentencing the Applicant for the child sexual offences, the Sentencing Judge also referred to the Applicant's drug use, stating that: "I accept that you obviously took and used illicit drugs from time to time" (G10, page 56). Addressing his drug use issues would be a factor in reducing the likelihood of his re-offending. The Applicant completed the Pathways Program between 5 November 2018 and 6 February 2019 at Karnet Prison Farm (A3, SG2, page 256; see also A2, G17, page 103). The Program Completion Report describes the Pathways Program as a program for "individuals who have a history of offending behaviour and substance use problems" (SG2, page 256).
4. The "Summary and Recommendations" section of the Program Completion Report identified the treatment needs that the Applicant had before completing the program, together with the significant treatment gains he made as a result of completing the program. These were (SG2, page 261):

The following factors were identified as treatment needs for Mr Mayes:

• Changing his perception towards alcohol and drug use
• Improving confidence and self-esteem
• Creating meaning and purpose through goal setting
• Improving victim empathy
• Developing balanced relationships
• Having a positive outlook on life

Some of the significant treatment gains observed in Mr Mayes at the conclusion of the program include the following:

• His decision to abstain from drinking alcohol and using illicit drugs
• Finding evidence to disprove his negative core beliefs
• Developed and set goals
• Demonstrated empathy for the victim of his criminal conduct
• Improved self-esteem and communication skills
• Developed a positive attitude and noted the benefits of this

1. The Pathways Program Completion Report also identified (SG2, page 262):

Protective factors for Mr Mayes include having strong family support, willingness to engage in further counselling programs and a desire to engage pro-socially within society.

1. The Pathways Program Completion Report concluded by suggesting a number of recommendations which involve monitoring the Applicant's progress with regard to the following: continued disengagement from antisocial peers, development of a prosocial network, development of a professional support base, undertaking regular alcohol and drug testing and engagement with employment (SG2, page 262).
2. Similarly to the ISOTP, although the Applicant was reported to have made treatment gains, the program facilitators did not provide any assessment as to the likelihood of the Applicant reoffending being reduced and to what extent, as a result of the treatment gains he achieved during the program.
3. A letter from Acacia Prison dated 29 June 2017 also confirmed that the Applicant had attended 14 Narcotics Anonymous (NA) meetings whilst at Acacia Prison (G17, page 96). This attendance is also to the Applicant's credit, particularly in light of attendance being on a voluntary basis. The Applicant also stated in his evidence at the hearing that he had undertaken drug and alcohol counselling in prison for two weeks (transcript, page 50).
4. In his evidence at the hearing, the Applicant was able to describe some of the gains he made as a result of completing these programs including thinking before he acts, being aware of and taking control of his decisions, building up his self-esteem, the need to continue with counselling in the community, to have support from his family and close friends and not to associate with negative peers. He also recognised the need to abstain from drugs and alcohol which has a relationship to his offending (transcript, page 16-17).
5. To the Applicant's credit, the Applicant has not engaged in any drug use whilst in prison or immigration detention. This is illustrated by his frequent tests for alcohol and drugs by Corrective Services while he was in prison, which were all negative (SG2, pages 235-236). Thus, if the Applicant is released into the Australian community, he will be starting from the position of being abstinent from drug and alcohol use. This may assist him to continue to abstain from drug use in the community and thereby reduce the likelihood of his reoffending.
6. On 28 March 2019, the Western Australian Prisoners' Review Board (PRB) made a parole order to release the Applicant on parole to commence from his earliest eligibility date of 25 April 2019 with conditions (SG2, page 234). The conditions of the Applicant's parole order included not to consume alcohol or to enter licensed premises, to submit to random breath testing as required by Police, to attend random urinalysis for illicit substances as directed by the Community Corrections Officer, to attend programs and counselling as directed, to comply with reporting requirements under the Community Protection (Offender Reporting) Act 2004 (WA), and to immediately engage in employment, training or job seeking. The release on parole reasons were:

The fact the conditions of parole will further reduce the risk to the safety of the community.

The salutary impact of a term of imprisonment and an opportunity for parole supervision.

You successfully completed a period of parole in 2004.

Your parole plan which includes confirmed suitable accommodation and family support.

Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.

Your successful completion of the Intensive Sex Offender Treatment Program and Pathways Program with reported gains.

1. The Applicant's release on parole reasons indicate that the PRB was of the opinion that with monitoring and supervision in the community, the Applicant's risk to the safety of the community could be reduced. As can be seen in the above reasons, the PRB noted the Applicant's motivation to address his offending behaviour and his reported treatment gains. Evidently, the PRB was of the opinion that the "risk to the safety of the community" posed by the Applicant had been reduced but that there was still some risk that needed to be managed with conditions and supervision.
2. Mr Glenister submitted that if the Applicant is released into the Australian community, he will be a reportable sex offender for 15 years. He will therefore be subject to monitoring by way of reporting requirements and conditions which may assist to reduce his likelihood of reoffending (transcript, page 69). Additionally, if released into the Australian community, the Applicant will be subject to a period of parole until 25 April 2021 (SG2, page 234), also with monitoring and conditions (referred to above) which may also reduce the likelihood of his reoffending and assist in his rehabilitation and reintegration into the community. The Tribunal agrees that this period of parole in particular may act as a further protective factor, which, as the duration of parole progresses, may further reduce the Applicant's risk of reoffending.
3. At the Tribunal hearing, the Applicant expressed that he understood that if he reoffended, he would again face Visa cancellation which would be a further deterrent to his reoffending. The Tribunal agrees that the Applicant's supervision in the community, together with his fear of having his Visa cancelled in the future, may act as deterrent factors which may reduce the likelihood of the Applicant reoffending. His most recent sentence of imprisonment may have had a salient effect on the Applicant, and the Tribunal notes that, with the exception of three minor incidents, the Applicant's prison attitude and behaviour was reported to be respectful and compliant, as well as the Applicant being an above average worker (see, for example SG2, page 278). This good behaviour is to the Applicant's credit, and may also be indicative of this salient effect.
4. The Applicant has attended the voluntary Life Skills Re-entry Program facilitated by Outcare which he completed in December 2017, with the attendance certificate for the "Prepare to change" session reporting that he "actively participated in the program" (G17, page 98). He completed vocational training in prison including a Career Development Workshop facilitated by Outcare on 11 September 2017 (G17, page 99), as well as obtaining competencies towards a "Certificate 1 in Entry to General Education" and a "Certificate 1 in General Education for Adults" (G17, pages 100-102). The Applicant mentioned in his evidence at the hearing that he had undertaken some studies in computing (transcript, page 48). The Applicant also expressed the desire to continue with his studies to complete year 12 should he have the opportunity of being released into the community. He was confident that, given his work experience and work tickets, that he would not have difficulty obtaining paid employment if he were released into the Australian community (transcript, pages 18 and 31). It is commendable that the Applicant has undertaken vocational training in prison, together with his work experience. This may assist his rehabilitation and reintegration should he be released back into the Australian community. His further study and potential employment are prosocial factors which may assist to reduce his likelihood of reoffending.
5. The Applicant has support from prosocial family in the community including his father (who has offered that the Applicant can live with him), and his sister. The Tribunal also notes the Applicant's intention to be a part of his nieces' and nephew's life (the children of his sister) which may be a protective factor in helping the Applicant to abstain from drug use and to reduce the likelihood of his re-offending.
6. The Applicant has expressed some remorse for his offending and the impact that his sexual offending (the Child Sex Offences) had on the victim (transcript, page 20). Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. The Tribunal was, however, concerned that the Applicant attempted to minimise some of the circumstances surrounding the offending. For example, the Sentencing Judge stated that the Applicant infected the victim with chlamydia, which His Honour referred to as an "aggravating feature" of the offending (R2, G10, page 52). However, the Applicant gave evasive evidence about whether he infected the 14-year-old victim of his sexual offending with chlamydia, or whether she had given him the infection. In summary, his evidence was that it may have been the victim who infected him with the sexually transmitted disease, but that he was taking responsibility because he was the adult who should have known better (transcript, pages 40-41). The Tribunal finds this explanation to be implausible, especially in light of the victim having just turned 14-years-old at the time the offending commenced.
7. The Sentencing Judge also stated that (G10, page 53):

... whilst ... you've been convicted of three offences, they are quite properly said to be just representative of sexual conduct that occurred throughout the entire period and there were other sexual acts. But these are the three that the State rely on for the purpose of sentencing you, but they're sexual acts that are in the context of a series of sexual acts and sexual conduct over a period of time.

1. However, when asked by Mr Gerrard about the number of times he had sexual relations with the victim, the Applicant stated that it was only on the three occasions that he was convicted of (transcript, page 40). The Tribunal subsequently asked the Applicant to clarify this evidence in light of the above comments from the Sentencing Judge. As indicated in the following exchange, the Applicant continued to maintain that he only had a sexual relations with the complainant on the three occasions for which he was convicted (the Child Sex Offences) (transcript, pages 53-54):

SENIOR MEMBER: ... I just wanted to clarify the evidence that you gave earlier about your - you were saying that you were having a relationship with a - with a 14-year-old girl. How many times did you have sex with her?

APPLICANT: Three, I think.

SENIOR MEMBER: So just the three occasions. That was your - - -?

APPLICANT: Yes, because I wasn't always around there.

SENIOR MEMBER: That was your evidence. Okay. And are you sure about that?

APPLICANT: Positive.

SENIOR MEMBER: Because that's different from what the sentencing judge said?

APPLICANT: Yes. No, it was three.

SENIOR MEMBER: So you're saying it was three?

APPLICANT: Yes, that's correct.

SENIOR MEMBER: Okay. That's okay. Because I'm just looking at G10, page 53 - one, two, three - four paragraphs down. The judge is saying that whilst you have been convicted of three offences, they are quite properly said to be just representative of sexual conduct that occurred throughout the entire period and there were other sexual acts, but these are the three that the State rely on for the purpose of sentencing you, but they're sexual acts that are in the context of a series of sexual acts and sexual conduct over a period of time. So it seems to me that the judge is saying that there were more than the three occasions?

APPLICANT: No. There was only three occasions. Yes.

1. Given the clear statement to the contrary by the Sentencing Judge, the Tribunal also regards the Applicant's evidence that he only had sex with the victim on the three occasions he was convicted of to be implausible. This evidence appears to be an attempt by the Applicant to revise some of the circumstances of the offending in order to present himself more positively to the Tribunal. This raises concerns about the Applicant's remorse and insight into his offending.
2. Although the Applicant made some identified treatment gains through the completion of programs and counselling, particularly the ISOTP and the Pathways Program, these gains were not measured, and their extent (in terms of the degree to which they may reduce the likelihood of the Applicant reoffending if he is released into the Australian community) is unclear. The Tribunal is concerned by this lack of clarity because the Applicant was assessed as a moderate to high or high risk of reoffending in a sexual manner (depending on the assessment tool used) prior to his completion of the ISOTP and a "very high" risk of general reoffending. Although it is likely that the completion of these programs, together with insight into his offending and the existence of other protective factors identified above, may reduce the likelihood of the Applicant reoffending, a likelihood nevertheless remains, particularly given that the initial assessments were "moderate to high" and "very high".
3. However, given the nature of harm articulated above, the Tribunal is of the opinion that the Child Sex Offences in particular, fall into the category whereby the potential harm caused by reoffending may be so serious that any risk of it being repeated is unacceptable. Accordingly, the Tribunal finds that the principle set out in paragraph 6.3(4) of Direction No 79 applies:

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

1. Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant reoffending, should he be given a further chance to be released back into the Australian community. In the Tribunal's opinion, the risk is likely to be moderate to high with respect to general reoffending, and moderate to low with respect to sexual reoffending. With regard to paragraph 6.3(4) of Direction No 79, the Tribunal finds that the circumstances of the Applicant's Child Sex Offences and the serious nature of the harm that can result to victims of this type of offending means that even a moderate to low likelihood of reoffending in the future is unacceptable. On balance, the Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant's Visa.

Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)

1. Paragraph 13.2 of Direction No 79 provides, in part:
   • (1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
   • (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
   • (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.
2. Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:

(4) In considering the best interests of the child, the following factors must be considered where relevant:

(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) The extent to which the non-citizen is likely to play a positive parental role in the future taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) Whether there are other persons who already fulfil a parental role in relation to the child;

(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has identified three minor children whose best interests are relevant to this application. These are his 12 year old nephew and 12 year old niece (who are twins), and his 16 year old niece. They are the children of the Applicant's sister.
2. Very little evidence about these children is before the Tribunal, but nevertheless the Tribunal has however made findings regarding the interests of these children based on the limited evidence before it. As is permitted by paragraph 13.2(3) of Direction No 79, the children will be dealt with together because the evidence before the Tribunal suggests that their interests are similar.
3. Paragraph 13.2(4)(a) of Direction No 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The relationship is non-parental because the Applicant is the uncle of the children. It is not a close relationship, as is evident from the evidence of the Applicant's sister that the children may only have seen him approximately five to ten times in their lives (transcript, page 61).
4. Taking into account that the twins still have six years until they turn 18, and the older niece has two years until she is 18, if the Applicant is able to abstain from drug use and future offending he may be able to be a positive role model for the children during their remaining teenage years (Direction No 79, paragraph 13.2(4)(b)).
5. There is no evidence that any prior conduct of the Applicant has had a negative impact on this children (Direction No 79, paragraph 13.2(4)(c)). The evidence of the Applicant's sister at the hearing was that the children have not had a relationship with their uncle because she did not wish them to have contact with him due to his offending. However, should the Applicant form a relationship with his nieces and nephew and reoffend, this may have a negative impact on them.
6. Although the children currently do not have any relationship with the Applicant, if the Applicant is removed from Australia, the children will be deprived of having an in-person relationship with their uncle in the future. It would, however, be possible for the children to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype of Facetime (Direction No 79, paragraph 13.2(4)(d)).
7. The children's mother (being the Applicant's sister) currently fulfils the parental role in relation to them (Direction No 79, paragraph 13.2(4)(e)).
8. There are no known views of the children before the Tribunal (Direction No 79, paragraph 13.2(4)(f)).
9. The children's mother (the Applicant's sister) gave evidence that she would like her children to have a relationship with their uncle in the future now that they are old enough to understand his offending. The Applicant expressed the desire to have a relationship with his nieces and nephew as their uncle (A6; G15, page 87). However, the desire of the Applicant and his sister for a future relationship is more relevant to the Applicant's ties to Australia and impediments if removed (in terms of the Applicant's separation from family members in Australia), rather than this primary consideration of the best interests of minor children.
10. There is no evidence before the Tribunal that the Applicant has abused or neglected the children in any way in the past (Direction No 79, paragraph 13.2(4)(g)), nor that they have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (Direction No 79, paragraph 13.2(4)(h)).
11. The Tribunal concludes that the best interests of the Applicant's nieces and nephew weigh slightly in favour of revocation of the decision to cancel the Applicant's Visa.

Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. Paragraph 6.3(2) of Direction No 79 sets out the following principle:

The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

1. Further, paragraph 6.3(3) of Direction No 79 relevantly states:

A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

1. Until recently there was a lack of clarity concerning the interpretation of this primary consideration, following the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) where Her Honour stated:

[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[66]).

(Emphasis added.)

1. Subsequently, two decisions of the Federal Court adopted slightly different approaches to the interpretation adopted by Mortimer J in YNQY. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR).
2. In DKXY, Griffiths J stated that it was not "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]).

Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction...

(Original emphasis.)

In summary, Griffith J was of the view that "The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant to the particular case" (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant's circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community's expectations would weigh against revocation.

1. On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach, which appears to be more consistent with Mortimer J's approach in YNQY:

It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant's submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant's circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.

Although Perry J referred to the statement of community expectations in the Direction to be a "norm" to be applied in "most cases", it is not clear when circumstances may justify departure from that norm.

1. The Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) considered the approach adopted by Mortimer J in YNQY.

The Full Court's decision was accurately summarised by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman), at [162]-[166] as follows: 1. On 24 October 2019 the majority of the Full Court of the Federal Court (Charlesworth and Stewart JJ; Flick J dissenting) in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) upheld the decision of Justice Perry in FYBR. Importantly, the Court essentially agreed with the approach in YNQY and accepted Justice Mortimer's characterisation of this consideration as a "kind of deeming provision" - expressing "an expectation deemed by the government to be held by the Australian community" (FYBR (FC), [at 61], per Charlesworth J; see also Stewart J [at 89]). 2. Again as noted above, while this case concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court's consideration of the issue of "community expectations" is directly applicable to paras 6, 8 and 13.3 are relevant to this application. 3. While there is some difference in the approach to the question of construction of the relevant clauses, the majority Justices in FYBR (FC) agree that it is not for a decision-maker to make his or own her own assessment of the community expectations and to give that assessment weight as primary consideration but to identify the Government's view about community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker's discretion, taking into account all the primary and other considerations (Charlesworth J at [73]-[74]; Stewart J at [93] and [103]). 4. In FYBR (FC) Charlesworth J, held that (at [67]):

To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is "deeming", in the sense explained by Mortimer J... It is not for the decision maker to make his or her own assessment of the community expectations and to give that assessment eight as a "primary consideration"... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day with respect of its subject matter.

1. Justice Stewart held, in similar terms (at [89] and [91]):

... 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....

The above contextual factors lead to 2 guiding considerations to the proper construction of Direction 65. First, "community expectation" as expressed normatively" I watched the government says 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 of any particular case - they are to be understood and applied normatively.

1. Both majority Justices make the point that, as a primary consideration, "community expectations" are to be taken into account along with other factors to inform a decision-maker's exercise of discretion. It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable (see Charlesworth J (at [74]), Stewart J (at [91]-[93]).
2. Justice Charlesworth notes that it is necessary to determine the content of the deemed expectation not by reference to some factual inquiry but by reference to the paragraph itself. The task of the decision-maker is to identify the government view of community expectation and to have due regard to it (at [74]). Her Honour notes that the paragraph (at [73]):

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 clause implicitly recognises that the decision-makers assessment as to whether or not the visa should be granted may differ from the expectations of the Australian community, as the government deemed those expectations to be.

1. Her Honour goes on to note the paragraph (at [75]-[79]):
   1. Should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visas applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration.

1. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such cases, the decision maker would depart from the relative ascription of weight for which cl 8(4) "generally" provided, as he or she is permitted to do_._
2. Justice Stewart summarises the "community expectations" as expressed in the Direction as follows (at [100]):

Non-citizens will obey Australian laws while in Australia;

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

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

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

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

1. As noted above, although the Justices were considering the provisions with respect to visa refusal their comments are, in the Tribunals view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).

1. Having regard to the judgments of Stewart J and Charlesworth J in FYBR (FC), the Tribunal finds that the Applicant's Child Sex Offences are particularly serious offences committed against a vulnerable child victim and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant's Visa.
2. In these circumstances, the Tribunal regards that the principle in paragraph 6.3(2) of Direction No 79 is applicable. This principle is that: "The Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere".
3. The principle in 6.3(3) of Direction No 79 is also applicable. This principle is, in summary, that: "a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community... should generally expect to... forfeit the privilege of staying in, Australia".
4. In determining the weight to be applied to this consideration, the Tribunal has considered the primary consideration of the protection of the Australian community which includes the serious nature of the offences committed by the Applicant and the unacceptable risk of harm to minor children if he were to reoffend.
5. The Tribunal has balanced these considerations against the primary consideration of the best interests of minor children (the Applicant's nieces and nephew) and the other considerations discussed below, including the strength, nature and duration of the Applicant's ties to Australia; and the hardship the Applicant would face if he was returned to the United Kingdom, which weigh in the Applicant's favour.
6. Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community outweigh the considerations in the Applicant's favour. The expectations of the Australian community would be that the decision to cancel the Applicant's Visa should not be revoked, particularly in light of the primary consideration of the protection of the Australian community. The Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant's Visa.

1. Paragraph 14 of Direction No 79 provides:
   • (4) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
     • (a) International non-refoulement obligations;
     • (b) Strength, nature and duration of ties;
     • (c) Impact on Australian business interests;
     • (d) Impact on victims;
     • (e) Extent of impediments if removed.

1. Paragraph 14.1 of Direction No 79 is not applicable because the material before the Tribunal did not raise any issue of non-refoulement.

Strength, nature and duration of ties to Australia

1. Paragraph 14.2(1) of Direction No 79 provides:
   • (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
     • (a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
       • (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
       • (ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
     • (b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non­revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
2. Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

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

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. The Applicant is now 35 years of age and arrived in Australia when he was 22 months old. He has resided in Australia for almost his entire life, having completed his primary and secondary schooling to approximately year 9 or 10 in Australia (transcript, page 25), and regards himself as Australian. All of the Applicant's work history is in Australia, as well as his training which he stated includes a number of tickets for safety including asbestos removal, working at heights and in confined spaces and in other aspects of the mining industry (transcript, page 31). The duration of time that the Applicant has resided in Australia which commenced with his arrival as a 22 month old infant, is indicative of the close ties that he has to Australia.
2. The Applicant's first offences were committed as a juvenile in 1999, being approximately 13 years after his arrival in Australia. His first adult convictions were in 2004 when he was 20 years of age, so he did not commit offences soon after arriving in Australia.
3. The Applicant's immediate family in Australia comprises his parents, sister and half-brother. The Applicant's two brothers have previously been deported to the United Kingdom on character grounds. As noted above, his sister has three children: 12 year old twins (a boy and a girl) and a 16 year old niece. Apart from his brothers, one of whom is in prison, and the other in a psychiatric hospital, he does not have close family ties in the United Kingdom. The Applicant does have an aunt in the United Kingdom, however she does not have a relationship with the Applicant.
4. The Applicant also has other ties to the Australian community, as indicated by the letters of support authored by the Applicant's close friends (Ms V, Ms C and Mr P) attesting to his good character and in support of him remaining in the Australian community (A3, A4 and A5).
5. The Tribunal appreciates that the Applicant's father is very supportive of him, and has suffered emotional detriment as a result of his two other sons being deported. His father is understandably anxious not to have a third son deported to the United Kingdom. As well as being likely to suffer emotional detriment if the Applicant was to be removed from Australia, his father may also suffer some financial detriment, as indicated by his evidence that he would try to provide some financial support to his son to help him find accommodation and to establish himself if he were removed to the United Kingdom.
6. The Applicant's sister is also likely to suffer some emotional detriment if he were to be removed, which she has already experienced through the removal of her two other brothers. If the Applicant were to be removed from Australia, all of her siblings would have been removed, with the exception of her half-brother. Although she and her children had not had a close relationship with the Applicant due to his offending, she expressed a desire to have a relationship with her brother, and for her children to have a relationship with him, in the future.
7. The Applicant's mother is also terminally ill due to cancer, and although there is minimal evidence about her views and her illness before the Tribunal, the Tribunal accepts that she will be adversely impacted if the Applicant is removed because she would be unlikely to see the Applicant again if he is removed from Australia.
8. The Applicant has made some positive contributions to the community through employment, including as an apprentice cabinet maker, glazier, furniture removalist and in the mining and construction industry (G15, page 89). He stated that he has been fairly consistently employed since leaving high school. The Applicant further stated that he has also made positive contributions through volunteering in the Salvation Army shop for a short time, and door knocking for the Red Cross, as well as making other donations to a children's charity and an animal charity through direct debit deductions from his bank account in the past. The Tribunal does note, however, that these positive contributions are somewhat diminished by his significant history of offending.
9. The Tribunal finds that the Applicant has significant and close ties to Australia in terms of the length of time he has resided in Australia (having arrived as a very young child) and due to the majority of his immediate family members residing in Australia. The Tribunal finds that the Applicant's ties to Australia are strong, and overall this consideration weighs strongly in favour of the revocation of the cancellation decision.

1. Paragraph 14.3(1) of Direction No 79 notes the following "other consideration" for the Tribunal:
   • (1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. There is no impact on Australian business interests if the cancellation of the Applicant's Visa is not revoked, and consequently this consideration is not applicable.

1. Paragraph 14.4(1) of Direction No 79 provides that the Tribunal should have regard to the impact on victims. Specifically, it states:
   • (1) Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
2. There is no evidence before the Tribunal about the impact that a decision not to revoke the mandatory cancellation of the Applicant's Visa on the victim of the Child Sex Offences, or the family members of the victim. Nor is there any such evidence from the victims of the Applicant's other offences. Consequently, this consideration is not applicable.

1. Paragraph 14.5(1) of Direction No 79 provides:
   • (1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
     • (a) The non-citizen's age and health;
     • (b) Whether there are substantial language or cultural barriers; and
     • (c) Any social, medical and/or economic support available to them in that country.
2. The Applicant is now 35 years of age. As noted above, he first arrived in Australia in 1986 when he was 22 months of age with his parents, sister and two brothers. He considers himself to be Australian and has not returned to the United Kingdom since his arrival in Australia.
3. The Applicant is not currently suffering from any mental health issues, although Mr Glenister noted in closing submissions that there is a record of prior suicidal ideation in prison recorded on 29 April 2016 (SG2, page 244). As noted above, the Applicant has made some treatment gains in the area of substance abuse, including his decision to abstain from illicit substances, which are likely to be further consolidated during a period of parole (until 25 April 2021 which is the end date of his maximum sentence) if he is released into the Australian community. This parole period includes drug testing and counselling and programs as directed by his Community Corrections Officer. If the Applicant was returned to the United Kingdom, he would not have the benefit of this supervision and could possibly experience setbacks in his rehabilitation, including resuming alcohol and substance misuse.
4. There is some reference in the material before the Tribunal to the Applicant having epilepsy, although it was not raised by the Applicant, and there is no supporting medical evidence. In his personal circumstances form dated 19 June 2018 (G15, page 90), in response to the question, "Do you have any diagnosed medical or psychological conditions?", the Applicant ticked the box marked "no". No statements or submissions were made by the Applicant, or his friends or family, about his having any physical health issues (see A2, A3, A4, A5, A6, A7, G19, page 108). No submissions were made by Mr Glenister regarding any physical health issues experienced by the Applicant. However, in a Case Conference Report created in 2004 (SG2, page 336) there is reference to the Applicant having deformed elbows, but that the deformity did not interfere with the Applicant's daily living. Nor was the Applicant asked when giving evidence at the hearing about having epilepsy. There is, however, reference in an incident report marked "Non Critical" to the Applicant having a fit in prison on 29 April 2016 (SG2, page 244), and reference in a Management and Placement report prepared by Corrective Services to "Epilepsy - must have lower bunk" (SG2, page 321; see also Case Conference Report created 5 April 2017 at SG2, page 306). More recently, in a Parole Assessment for the Applicant dated 14 March 2019, under the heading "Health issues" it is stated that, "Mr Mayes reported he is of sound physical and mental health. TOMS [the database used by Corrective Services] confirms this" (SG2, page 346). There is insufficient evidence before the Tribunal to make a finding that the Applicant has a medical condition such as epilepsy. In the alternative, if the Applicant does have such a medical condition, the United Kingdom is a developed country comparable to Australia, and there is no evidence before the Tribunal that he would not be able to access appropriate medical care in the United Kingdom to manage such a condition.
5. The Applicant is likely to experience difficulty in adjusting to living in a country that is foreign to him when he considers Australia to be his home. The Applicant does not have any close or immediate family in the United Kingdom, with the exception of his two brothers. One brother is in prison, and the other is in a psychiatric hospital. The brother who is in prison in the United Kingdom was the Applicant's co-offender in the Applicant's offences of one count of "attempted armed robbery" and two counts of "robbery whilst armed in company". During sentencing for this offence, the Sentencing Judge, McKechnie J, noted that the Applicant's brother was the person who pretended to be armed with a knife and noted that the Applicant was "lead a little by [his] brother" in the offending (G11, page 65). When sentencing the Applicant for robbery whilst armed in company, Macknay DCJ stated that "in the company of your brother you have tendency to get into trouble" and that his brother was "the prime mover and really the person who... without which the offence would not take place" (G12, page 68). It is evident that the Applicant's brothers are not in a position to provide him with prosocial or emotional support should he be returned to the United Kingdom, and may (particularly with respect to his co-offender brother) be a negative influence on the Applicant if he were to resume contact.
6. The Applicant has an aunt living in the United Kingdom (his father's sister), although the Applicant does not currently have a relationship with her. Also, the evidence of the Applicant's father at the hearing was that he did not want to burden the Applicant's aunt with having to provide support for him as she is recovering from the recent bereavement of her husband (transcript, page 57). The Applicant also stated in his oral evidence that his mother's parents reside in the United Kingdom, but that he has never spoken to them (transcript, page 30). Thus, any emotional support the Applicant's aunt and his grandparents could provide him with is likely to be minimal or non-existent.
7. The Applicant's father is very supportive of him, and gave evidence that he would assist, to the extent that he could, in providing financial support to help the Applicant establish himself if he were returned to the United Kingdom, for example with securing accommodation. The Applicant's father also gave evidence that he tries to return to the United Kingdom every two years to see his sister (transcript, page 58), which may offer some emotional support for the Applicant if he were to return to the United Kingdom.
8. The United Kingdom shares a common heritage, and has a similar culture to Australia, and so the Applicant would not face any language or cultural barriers if he were to return to the United Kingdom. As noted by Mr Glenister, the Applicant "will be able to avail himself of the social security available to all citizens of the United Kingdom"" (A1, paragraph [82]).
9. By the Applicant's evidence he has worked fairly continuously since leaving school in a range of professions including as an apprentice cabinet maker, glazier, furniture removalist and in the mining and construction industry (G15, page 89). The Applicant also has a number of tickets in the areas of demolition, safety and confined spaces, but was of the opinion that these would not assist him because they were not recognised in the United Kingdom. Even if this is the case, his work experience may assist him to find employment in the United Kingdom and to maintain basic living standards.
10. The Respondent has also noted that there are organisations such as Prisoners Abroad who are able to provide limited assistance and support with resettlement in the United Kingdom (R1, paragraph [57]). The Applicant is aware of this organisation, but his belief was that it only provided assistance for a period of two weeks after arrival. The Tribunal notes that this organisation may be able to provide some assistance to the Applicant in transitioning to living in the United Kingdom, however the extent of this assistance is unclear.
11. On balance, the Tribunal finds that the Applicant is likely to experience hardship in re-establishing himself in the United Kingdom, in particular due to the length of time he has resided in Australia, and his lack of family and other social supports in the United Kingdom. Removal may also set back any gains that the Applicant has made with his rehabilitation. Overall, the impediments the Applicant will face if removed weigh moderately in favour of the revocation of the cancellation decision.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. The Tribunal has considered whether there is another reason why the Reviewable Decision should be revoked, having regard to the primary and other considerations in Direction No 79.
3. In relation to the first primary consideration, the Tribunal finds that:
   • (a) The nature and seriousness of the Applicant's conduct weighs strongly in favour of the non-revocation of the decision to cancel his Visa (paragraphs 13.1 and 13.1.1 of Direction No 79); and
   • (b) The risk to the Australian community should the Applicant commit further offences also weighs strongly in favour of the non-revocation of the decision to cancel the Applicant's Visa (paragraph 13.1.2 of Direction No 79).
4. Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction No 79), weighs strongly in favour of the non-revocation of the decision to cancel the Applicant's Visa.
5. The Tribunal finds that the best interests of the Applicant's two nieces and his nephew (paragraph 13.2 of Direction No 79), weigh slightly in favour of the revocation of the cancellation decision.
6. With respect to the expectations of the Australian community (paragraph 13.3 of Direction No 79), the Tribunal finds that this consideration weighs strongly in favour of the non-revocation of the decision to cancel the Applicant's Visa.
7. In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant's ties to Australia consideration (paragraph 14.2(1) of Direction No 79) weigh strongly in favour of revocation of the cancellation decision. The impediments if removed consideration (paragraph 14.5(1) of Direction No 79) also weighs moderately in favour of the revocation of the cancellation decision. However, these considerations, do not weigh in the Applicant's favour to the extent that they outweigh the primary considerations of protection of the Australian community and the expectations of the Australian community. Indeed, the protection of the Australian community and the expectations of the Australian community far outweigh the ties to Australia and impediments if removed considerations.
8. In summary, after considering all of the relevant primary considerations, and the relevant other considerations in Direction No 79, the Tribunal finds that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant's Visa. The correct or preferable decision is to affirm the Reviewable Decision.

1. The Reviewable Decision, being the decision of a delegate of the Respondent dated

22 October 2019 not to revoke the mandatory cancellation of the Applicant's Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

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