Pinder and Minister for Home Affairs (Migration) [2019] AATA 1398 (21 June 2019)

1. The Applicant was born on 25 April 1956 and is a citizen of the Commonwealth of the Bahamas. He left the Bahamas with his family as a 10 year old and moved to Florida in the United States. He has never been back to the Bahamas (Transcript at 12).

The Applicant played professional basketball in the United States with North Carolina State, Chicago Bulls and Harlem Globetrotters (statement of Calvin Bruton - A3 and R4, page 666). The Applicant first visited Australia in 1982 at the age of 26 on a basketball tour with the Harlem Globetrotters (Transcript at 26). 2. He returned to Australia in 1985 to take up a contract to play with the Sydney Supersonics in the National Basketball League (NBL) where he played the 1985 and 1986 seasons.

In 1987 the Applicant moved to Perth to play with the Perth Wildcats in the NBL.

He played for the Wildcats from 1987 to 1992. 3. The Applicant was arrested in 1992 and in June of that year he was convicted on sex related offences committed in 1990 and was imprisoned. 4. In 1993 the Applicant was also convicted of sex offences which occurred in May 1988 and received terms of imprisonment totalling seven and a half years (five years taking into account concurrent terms). In the end the Applicant was sentenced for the offences committed in 1988 and 1990 to a total effective term of seven years and six months imprisonment from 29 May 1992 to 28 November 1999. 5. The Applicant was released on parole in February 1995 (R4, page 803). The Applicant's conditions of parole were varied to allow him to relocate to New South Wales where he had secured a contract to play for the Illawarra Hawks. He played, or at least commenced, the 1995 NBL season with that team. At some time in 1995 the Applicant was arrested on the charges relating to sex offences committed in New South Wales on 5 May 1995 (see [21] below). 6. The Applicant was imprisoned in New South Wales in November 1995 and in

January 1996 was convicted of the offences committed on 5 May 1995. He was sentenced to five years' and one and a half years' (concurrent) imprisonment respectively for these offences with a requirement to serve three years and nine months imprisonment. 7. On 8 December 1995 the Applicant's parole relating to his Western Australian offences was cancelled because of the offences committed in New South Wales and a warrant for his apprehension was issued (R4, page 803). The Applicant's evidence at the hearing was that he was not aware of the cancellation of his parole or the issue of the warrant for his apprehension until he appeared in the Burwood Local Court in December 2013 on the larceny offence (Transcript at 34). 8. The Applicant was granted Australian citizenship in September 1989 (R4, page 714). This was revoked (deprived) on 27 June 2007 under the Australian Citizenship Act 1948 (Cth) (R3, G73). 9. In January 2009 the Department of Immigration and Citizenship (DIAC) advised the Applicant that his visa may be liable for cancellation under s 501 of the Act. By notice dated 4 August 2009 (R3, G74) the DIAC advised the Applicant that the decision had been made not to cancel his visa. That notice advised that that decision may be reconsidered if the Applicant were to commit further offences or otherwise breach the character test in the future. 10. In December 2013 the Applicant pleaded guilty and was convicted of larceny

Demerit point suspension mdl

disqualification 3 months

Larceny value over $5000 less than $15,000 - T1

1. The sentencing judge's comments (R3, G32) summarise the facts as follows:
   • A 16 year old girl finished work at a Barrack Street food outlet at about 10.30 pm and was walking towards her bus stop.
   • The Applicant stopped his car and engaged the victim in conversation and offered her a lift home. The victim accepted the Applicant's offer. Once in the car the Applicant persuaded the victim to go back to his unit.
   • At the unit the Applicant, under the guise of showing the victim the unit, got her into his bedroom where he undressed to his underpants and eventually forced her back on the bed where he forcefully penetrated her vagina with his finger or fingers and attempted to penetrate her vagina with his penis.
   • The victim cried out and struggled making it clear that she wanted no sexual activity. The Applicant persisted with digital penetration and attempting penile penetration causing considerable pain and distress.
   • The Applicant only stopped when the victim became extremely distressed and threatened to report the matter to the police.
   • The Applicant then drove the victim to her house and allowed her to alight and waited until she was safely indoors before driving off.

1. The sentencing judge's comments (R3, G33) summarise the facts as follows:
   • The Applicant met the 20 year old female in a dress shop and introduced himself and invited her to go to his shop.
   • As events transpired, the victim invited the Applicant to go to her house where she was entertaining a group of friends.
   • The friends departed and another young occupant of the house had gone to bed leaving the Applicant and the victim in the lounge room.
   • The Applicant moved from the couch on which he was sitting to the floor to sit next to the victim and grabbed her leg, ankle and calf. The victim unsuccessfully attempted to pull away and the Applicant kept asking "What's the matter?"
   • The Applicant then came up onto his knees and pushed her back onto the floor with his hands against her shoulders thereby pinning her to the ground. The victim yelled out "What are you doing?" and tried to push the Applicant off but was unable to do so because the Applicant had his full weight on her chest and abdomen.
   • The victim continued to struggle and kept saying "No". The Applicant moved the victim's underwear across and pulled down his shorts and started touching her on the outside of her vagina. The Applicant then put two fingers inside her vagina causing the victim pain and persisted in moving his fingers in and out of her vagina for a period estimated by the victim to be five minutes.
   • The victim continued to protest and in an attempt to persuade the Applicant to stop invented a story that she had had cervical cancer. The Applicant then attempted to insert his penis into the victim's vagina but did not succeed.
   • The victim was able to push the Applicant off and ran to the door and threw the Applicant's basketball boots outside and told the Applicant to leave. The Applicant, however, manoeuvred himself around the victim and got both of them back into the lounge room where he pinned her to the back of a chair and started with the same sort of conduct as before.
   • The victim then invented another story that she had been molested as a child by her father. The Applicant still persisted for, on the victim's estimate, 15-20 minutes when she finally pushed the Applicant off and was able to run outside.

1. The summary of facts from the judgment of Murray J in the Court of Criminal Appeal (R3, G34 at 272-273) was as follows:
   • The victim, a 17 year old, and a younger friend, were taken by the Applicant to his residential unit although they had asked to be taken home.
   • They accompanied the Applicant inside and once inside he took the victim forcefully by the wrist and, being much stronger than her, despite her resistance was able to take her to the bedroom, push her onto the bed and lie on top of her.
   • She struggled while the Applicant tried to kiss her and force her legs apart.

She told the Applicant to let her go. She told the Applicant her age. * The Applicant attempted to pull the crotch of her underpants to one side. She felt, but did not see, the Applicant insert his fingers into her vagina which caused her considerable pain. She was still screaming and telling him to get off. * The victim was unable to say how long this persisted. The bedroom door opened and the Applicant desisted. * The victim then tried to leave the unit but was brought back into the bedroom by the Applicant who forced her back onto the bed and attempted to penetrate the victim with his penis. He was unable to achieve penetration because of the victim's struggling. * The Applicant eventually gave up and the victim ran from the unit.

1. The following summary of the facts is taken from the judgment of McInerney J in the

New South Wales Court of Criminal Appeal (Coram: Gleeson CJ, McInerney J and Ireland J) (R3, G30): * The victim was a 15 year old schoolgirl. The Applicant had met the victim,

a supporter of the Applicant's NBL basketball team, the Illawarra Hawks, a number of times. * On the first occasion the victim and the Applicant had met in a shopping centre to discuss basketball. Several more meetings took place and on the fourth occasion the victim returned to the basketball stadium to retrieve an autograph book that she had left behind where she ran into the Applicant who took her into the referee's room in the stadium, kissed her and put his hand down her pants and asked the victim if she would meet him. * In the afternoon of 5 May 1995 the Applicant approached the victim while she was waiting for a bus. At the time the victim was wearing her school uniform. * The victim then went with the Applicant in his car to a car park. While driving to the car park the victim told the Applicant that she was 15 years old. * The Applicant asked the victim to get into the back seat which she eventually did. The Applicant then kissed the victim on the lips and placed his hand down the front of her slacks touching her vagina. She told him to stop but he continued.

She informed him that she had her period. The Applicant then placed his hand inside her underpants and touched her vagina. He then tried to place his finger inside her vagina and was again told to stop. * The victim at that point opened the back door of the car and the Applicant said "You can leave if you want", however the victim could not exit the car as the Applicant was leaning over her. He then closed the door. * The Applicant then pulled his tracksuit pants and underpants to his thighs and forced the victim's head down to his groin and said "Kiss it, kiss it" which she did out of fear. He then told the victim to put his penis in her mouth. * The victim's head was held down while the Applicant moved his pelvis up and down whilst his penis was in the victim's mouth. The Applicant ejaculated into the victim's mouth.

1. The matter was heard on 10 June 2019. The Applicant attended in person with an advocate and the Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
2. The material before the Tribunal at the time of the hearing was:
   • Applicant's statement of facts, issues and contentions dated 30 May 2019 (Exhibit A1);
   • Letter of Robert Williams dated 20 May 2019 (Exhibit A2);
   • Letter of Calvin Bruton dated 5 May 2019 (Exhibit A3);
   • Forensic report of Associate Professor James Freeman dated 3 June 2019 (Exhibit A4);
   • Respondent's statement of facts, issues and contentions (SFIC) dated 8 May 2019 (Exhibit R1);
   • Respondent's Chronology of Offences (Exhibit R2);
   • Section 501 G Documents (G1-G91) (Exhibit R3); and
   • Tender Bundle (Exhibit R4).

(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) ...; 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.

(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...

1. A "substantial criminal record" is defined by s 501(7) of the 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 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:

(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

(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.

(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 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.

1. Section 499(2A) of the Act states that "[a] person or body must comply with a direction under subsection (1)."
2. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named "Direction no. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under

s 501CA" (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79). 3. Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(3) relevantly provides:

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.

1. Paragraph 6.2 of Direction 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.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:

(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.

1. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
2. Paragraph 13(2), which is in Part C of Direction 79, provides:

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

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

(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):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 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 non-citizens 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. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63]. The character test is defined in

s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has "a substantial criminal record". This phrase, in turn is defined in

s 501(7)(c) which provides that a person will have a substantial criminal record if they have "been sentenced to a term of imprisonment of 12 months or more". That is clearly so in the Applicant's case. 2. Further, as the Applicant was convicted of sexual offences against children (including "sexual intercourse with a person 10-16 years"), the Applicant also fails the character test on the basis of s 501(6)(e) of the Act. 3. The Applicant does not pass the character test. The Applicant cannot rely on

s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked. The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?

First primary consideration: Protection of the Australian Community from criminal or other serious conduct (13(2)(a))

1. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

(1) ...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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

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

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

(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:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. 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;

1. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
3. The cumulative effect of repeated offending;
4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
5. 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);
6. 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;

1. The Applicant has been convicted of serious sexual crimes against women and children. The Applicant's sexual offending started in the United States and he started shortly after his arrival in Australia.
2. The Respondent contends (R1, paragraph 45) that the Applicant's offences must be viewed as very serious having regard to:

1. The crimes being sexual crimes (paragraph 13.1.1(1)(a) of Direction 79); 2. The crimes being committed against vulnerable members of the community (children) (paragraph 13.1.1(1)(c) of Direction 79);

1. The sentences imposed for the crimes, noting that the Applicant has been sentenced to 19 years and six months imprisonment in total (paragraph 13.1.1(1)(d) of Direction 79);

1. The cumulative effect of the Applicant's repeat offending (paragraph 13.1.1(1)(f) of Direction 79); and 2. The fact that the Applicant continued to re-offend since being formally warned, in writing, of the consequences of further offending in relation to his migration status (paragraph 13.1.1(1)(i) of Direction 79).
2. The Tribunal agrees with the Respondent's characterisation of the Applicant's offending. While it is the case that the offence committed by the Applicant, after being formally warned in 2009 that further offending could cause the decision not to revoke his visa to be reconsidered (see [13] above), was minor and not of a sexual nature, the sexual offences must, by operation of sub-paragraphs 13.1.1(1)(a) and (b), be viewed as very serious.
3. The sexual offences all involved young women and in two cases children under 16 years of age. The unlawful carnal knowledge conviction in the United States involved a 15 year old girl. The Applicant was 19 years old at the time. The offences committed in

New South Wales in May 1995 involved a 15 year old girl. The offence committed in 1988 in Western Australia involved a 16 year old girl, the offence committed in October 1990 involved a 17 year old girl and the offence committed in February 1990 involved a 20 year old girl. The common theme of the Applicant's offending, as noted by a number of the sentencing and appeal judges, seems to have been the targeting of young girls and the exploitation of his celebrity as a high profile sportsman. 5. The other offences, the accumulation of driving licence demerit points in 1995, the possession of cannabis in 2007 and the larceny in 2013, are all minor offences.

The sexual offences, particularly those involving the 15 year old victim must, however, be viewed very seriously. 6. Subparagraph 13.1.1(1)(e) of Direction 79 identifies the frequency and any trend of increasing seriousness as relevant considerations. In the present case the Applicant's serious offending, being the sexual offences committed in Western Australia and

New South Wales, took place over the period from May 1988 to May 1995. All of the offences were very serious, however, the last of the offences, the one committed against the 15 year old, because it was committed against a child under 16 years of age, should be treated as the most serious. To that extent it could be considered that there was an increase in the seriousness of the Applicant's offending in that period. 7. If, however, one were to look at the totality of the Applicant's offending, since his conviction for the offences committed in May 1995, the Applicant's convictions are for possession of a small amount of cannabis in 2007, for which he was fined $400,

and larceny in 2013 for which he received a nine month good behaviour bond. In that sense it could be considered that over the entire period there has been a significant decrease in the seriousness of the Applicant's offending. 8. Subparagraph 13.1.1(1)(h) identifies the issue of a formal warning prior to further offending as being a relevant consideration. As set out at [13] above, a formal warning was issued by DIAC in August 2009 following its decision at that time not to cancel the Applicant's visa. Significantly, in the Tribunal's view, at the time that DIAC made the decision not to cancel that Applicant's visa he had been convicted of all of the serious offences. The only offence committed by the Applicant after that warning was the larceny offence in 2013. 9. Overall the Applicant's sexual offending must be viewed as very serious, however,

the trend of seriousness of his offending when viewed over the time since the Applicant's arrival in Australia is a trend downwards, albeit from a very high peak. The Applicant's only offences since the last and most serious of his sexual offences in May 1995 have been possession of a small amount of cannabis in 2007 and larceny (stealing lychees) in 2013.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. 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).

1. Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
   1. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J 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.

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally, in Hambledon v Minister for Immigration 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. The Tribunal agrees with and adopts the approach taken by Senior Member Dr M Evans in the above paragraphs (see also LZTW and Minister for Home Affairs [2019] AATA 779 and Subasinghe and Minister for Home Affairs [2019] AATA 751).

Nature of harm to individuals or the Australian community (13.1.2(1)(a))

1. Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the Applicant were to repeat his sexual offending behaviour is obvious and serious.

The Respondent contends that the harm, both physical and psychological, that would be suffered by the affected members of the community if the Applicant were to repeat his sexual offending is very serious. The Tribunal agrees with that assessment (see also NDBR and Minister for Home Affairs [2019] AATA 612 at [62]).

The likelihood of the non-citizen engaging in further criminal or other serious conduct - risk of re-offending (13.1.2(1)(b))

1. Obviously the relevant criminal or serious behaviour to be considered in this regard is the sexual offending. The Respondent points to the fact that the Applicant completed a

pre-release sex offending program in 1994 but then re-offended only three months after being released on parole. The Respondent submits that there is no cogent evidence that the Applicant has undertaken any further courses to curb his sexual offending (R1, 48).

The Applicant's SFIC did not dispute these claims by the Respondent and the Tribunal accepts them to be correct. 2. The Applicant has in his most recent period of imprisonment and detention undertaken alcohol and drug related rehabilitation (R1, para [49]), however, as the Respondent notes,

the effectiveness of these courses has not been tested outside the environment of prison and immigration detention. Again, the Applicant does not contest that assertion nor could he. 3. The Applicant provided a report dated 3 June 2019 (A4) by Associate Professor James Freeman, forensic, clinical psychologist. Associate Professor Freeman advises

(A4, page 14) that he is currently employed by Queensland University as an associate professor and is responsible for the supervision of doctoral students. His PhD focused specifically on (a) the rehabilitation of recidivist offenders and (b) the factors that predict the likelihood of further criminal behaviour. Associate Professor Freeman advises

(A4, page 1) that he completed three one-hour telephone assessments of the Applicant on 26, 27 and 31 May 2019. He was also provided with a large number of relevant documents including criminal records (Australian and US), transcripts of sentencing remarks from the relevant courts of Western Australia and New South Wales,

a psychological report of Ms Denise Cull of November 1994 relating to the sex offender treatment program undertaken by the Applicant, the Applicant's New South Wales

pre-sentence report from 1996, the Applicant's parole plan from 2017, the exit report from the sex offenders treatment program from July 1994 and various correspondence and letters of support. 4. Associate Professor Freeman reports that he undertook a number of psychological tests of the Applicant. The first test to which Associate Professor Freeman refers is the Hare Psychopathy Check List (PCL-R) which he explains as being "a popular measure of psychopathy" which "research has indicated ... is a reasonably accurate predictor of sexual and violent recidivism" (A4, page 9). Associate Professor Freeman advises that the results of the application of the PCL-R indicate that the Applicant "...does not meet the criteria to be considered to have elevated psychopathic tendencies" (A4, page 9). 5. The second test applied by Associate Professor Freeman was the Sexual Offender Risk Appraisal Guide (SORAG). This, the Professor explains, "...is a 14-item instrument used to assess the risk of violent and sexual recidivism" (A4, page 9). It incorporates the PCL-R scores. Associate Professor Freeman reports that applying this instrument the Applicant falls into the medium risk category. He does note that this test applies almost exclusively static factors, that is, factors that cannot change across time, including: (a) not living with both biological parents throughout childhood; (b) criminal convictions for past violent (sexual based offences); (c) having a number of previous sexual based offences;

(d) failing on a previous parole order; and (e) his young age at first index offence

(A4, page 10). 6. The third test applied by Associate Professor Freeman was the STATIC-99R test which he explains is a 10-item checklist designed to assess the risk of future sexual recidivism.

It again uses static (unchangeable) factors which have been demonstrated in the literature to correlate with sexual re-conviction for adult males. The Applicant's score applying this test put the Applicant in the average risk category (A4, page 10). 7. The final test applied by Associate Professor Freeman was the SVR-20 which he explains is a 20-item checklist of risk factors for sexual violence which incorporate "many of the core factors identified in the above actuarial scales" (A4, page 10). The Applicant did not score on the majority of risk factors. 8. At paragraph 13.3 of his report (A4), Associate Professor Freeman makes the following comments:

Utilisation of the various actuarial tools (e.g., PCL-R, SORAG, STATIC-99R & SVR-20) has produced differing risk categories, which may be considered consistent with multiple challenges associated with attempting to predict future human behaviour as well as the tools focusing on different core constructs. On the one hand, he cannot be considered in the "low risk" category nor will he ever progress to this classification given the significant weight actuarial scales place on historical offences. On the other hand, it is noteworthy that Mr Pinder was previously granted parole orders, which suggests that past clinicians considered his risk of recidivism to be relatively low. Additionally, he does not present with clear psychopathic tendencies that have been closely linked with sexual recidivism. More broadly, it is noteworthy that sexual recidivism is one of the least likely committed crimes, compared to drug and property re-offences (although the extent of Mr Pinder's sexual offending history suggests it may not have been appropriate to categorise him as a typical offender). It should also be noted that calculations regarding the likelihood of sexual recidivism are not heavily influenced by acceptance of guilt. That is, contemporary actuarial scales do not incorporate "acceptance of guilt" as a core factor in risk assessment algorithms, as a continued stance of innocence has not been found to be associated with an increased risk of recidivism. Furthermore, it is not uncommon for convicted sex offenders to exhibit various levels of minimisation likely due to feelings of shame and guilt. Finally

Mr Pinder's age is likely to be a further protective factor. The latter aspect may prove to be one of the applicant's most powerful mediating factors, as research generally indicates that sexual recidivism decreases as a linear function of age-at-release.

(Footnotes omitted.)

1. At paragraph 13.5 of his report (A4), Associate Professor Freeman summarises the Applicant's position as follows:

In summary, Mr Pinder is an aging male with a record of historical sex offences. While his calculated risk of recidivism (developed through actuarial scales) will not change over time, there are some dynamic factors that may be considered protective in nature. Not the least, the applicant's current lengthy period of incarceration (as well as the threat of deportation) are reportedly strong deterrents against recidivism. Given this, he presents with sufficient levels of insight and

self-awareness to recognise the likely consequences any involvement in further court matters will have on his prospects of remaining in Australia.

1. A Psychological report dated 1 July 2017 prepared by Ms Yvonne Town (R3, G66 and G67) was provided in support of the Applicant's application for parole in 2017. Ms Town explains that she is a psychologist who has worked in private practice since 2006,

she also has a Masters (law degree) in Criminal Justice from University of Western Australia and that prior to the Applicant being imprisoned there, she had worked at Acacia Prison for about 18 months as a psychologist offering psychological intervention strategies associated with prisoner mental health issues (R3, G66 at 371 and G67 at 375). She says that she met with the Applicant on 9 February 2017 and after that time attended Acacia Prison on six visits to work through what she describes as the Applicant's issues.

Ms Town comments in her report on an earlier psychological assessment apparently undertaken in Acacia Prison in April 2014 which assessed the Applicant as "a moderate risk of re-offending in a sexual manner" (R3, G67 at 377). Ms Town proffers the view that the personality tests underpinning that April 2014 report "may have been culturally biased for the U.S.A. market". She does not say on what basis she makes that statement.

She goes on to opine that "[i]f this is the case, then that would not be right for Mr Pinder as he was born in the Bahamas and as a member of the British Commonwealth indicating that the personality test should be "normed" to Australia which is also part of the British Commonwealth". Ms Town then states "[i]n light of the above, I would consider that Mr Kendall Pinder was not at any risk to the community. He has a wife and children who miss him and would like to return to them." 2. Ms Town in her report also commented on the accuracy of the commonly used actuarial recidivism predictive tools and in particular on the static component of some of them

Specifically, Hanson (2006) found that the most commonly used actuarial risk tool for estimating sexual offender recidivism risk (Static-99) was only "moderately accurate in estimating relative recidivism risk in all age groups", citing Barbaree et al (2003) linear projection expected recidivism rates for all types of sexual offenders would decrease to virtually zero at age 70 years.[1]

1. Ms Town was not called to give evidence. The weight that can be given to Ms Town's report in relation to the issue of the likelihood of the Applicant reoffending is diminished by the fact that she was not called to give evidence and her conclusion in the report appears to be based, in part at least, on speculation as to the basis on which an earlier psychological report was prepared. Her reference, however, to the literature indicating a linear decrease in the likelihood of recidivism in sexual offenders with age is consistent with Associate Professor Freeman's comment quoted at [68] above that "research generally indicates that sexual recidivism decreases as a linear function of

age-at-release". 2. The Respondent also asks the Tribunal to take into account what counsel described (Transcript at 91) as "numerous occasions when victims came forward and chose not to press charges". Counsel for the Respondent submits that "[w]hilst those victims haven't given evidence, this tribunal is not bound to the criminal standard of proof being beyond reasonable doubt and if the tribunal is convinced that any of those offences or any of those situations took place, then it would be open for the tribunal to find that that conduct was something that weighed against the applicant's visa being reinstated". 3. While it is the case that the Tribunal is not bound to the criminal standard of proof, the Tribunal still must have a proper basis in evidence for findings of fact. As the Tribunal pointed out to the Respondent's counsel, the Applicant in effect denied that any of the incidents which are recorded in the detected incident reports occurred or occurred as recorded in those documents. The Applicant was not particularly convincing in his denials. When asked by counsel for the Respondent whether he had been spoken to by police about allegations against him by various women, the Applicant repeatedly said that he had not been spoken to by the police. Those denials were shown to be false. The Applicant was asked whether the police had ever spoken to him after his unsuccessful appeal of his 1996 conviction. The following exchange took place:

MR BURGESS: You appealed against your 1995 [sic] conviction and that was dismissed?

APPLICANT: That's correct.

MR BURGESS: Since then, have you been questioned by police in relation to any other sexual offences?

APPLICANT: No.

MR BURGESS: You've already accepted that you were questioned in relation to an offence in 2015, you went to court for it?

APPICANT: Yes, I did. But that was the only time when I was in prison, in Acacia prison. When the police came here, that's what he's talking about, then.

MR BURGESS: Were you questioned about any other sexual offences?

APPLICANT: No.

(Transcript at 34)

1. The Applicant was then taken to a number of documents produced by Western Australian and New South Wales police and the Ministry of Justice under summons (R4).

MR BURGESS: This is an assertion that you had, again, in 2000 sexually assaulted a girl. Do you recall being questioned about this?

APPLICANT: Yes. I've been questioned about that. Yes.

MR BURGESS: When before you said you hadn't been questioned about any sexual assaults, you had in fact, hadn't you?

APPLICANT: No. But you didn't mention - it's been a long time ago, so you don't expect me to remember that until the year 2000 when it's 2019.

MR BURGESS: Are there too many sexual assaults for you to remember, Mr Pinder?

APPLICANT: No. There's not. But what I'm trying to remember I didn't remember this one here. Do you want to talk about this sexual assault in 2000? I was accused of sexual assault.

I went to trial with a jury and I was found not guilty on those charges.

MR BURGESS: You just happened to forget that that was another occasion that you'd gone to court?

APPLICANT: No, no, no. I didn't - you didn't say New South Wales.

MR BURGESS: I'm sorry?

APPLICANT: If you say New South Wales, then, I understand what you're saying to me. You never stated New South Wales.

MR BURGESS: Since this accusation in 2000 in New South Wales, have you been accused of any other sexual assaults?

APPLIUCANT: Only the one in - when I was in Acacia prison, detectives came to me and interviewed me and charged me and I went to trial for that and I was found not guilty by the Judge.

MR BURGESS: That was in 2015?

APPLICANT: That's 2015.

(Transcript at 35)

1. The Applicant was then taken to a further document in the tender bundle (R4, page 565) which related to the Applicant being arrested in New South Wales in 2005:

MR BURGESS: You were taken to City Central Police Station about 4.20 in the morning when you were at a club. Do you recall that?

APPLICANT: Yes. Yes. I can recall that. Yes.

MR BURGESS: You were accused of forcefully raping a girl 12 months before, in 2004?

APPLICANT: Yes. I remember going to the police station in the city. Yes. And I was interviewed and I was released.

MR BURGESS: Charges weren't pressed on that occasion either, were they?

APPLICANT: There was no charges laid upon me.

...

MR BURGESS: I ask you again, other than the 2007 and 2012 offences,

for the cannabis and the larceny, are there any other times you've been involved with police?

APPLICANT: No. Not that I can recall.

(Transcript at 36)

1. The Applicant was taken to a further document in the tender bundle (R4) which referred to an apprehended violence order (AVO) made against the Applicant. The Applicant conceded that the police had spoken to him about the AVO. The counsel for the Respondent then put to the Applicant:

MR BURGESS: Mr Pinder, I keep asking you whether you've had any other involvement. Each time, you say, "No".?

1. The Applicant denied the allegation made in support of the AVO that he had been violent towards his ex-partner, in particular that he had thrown furniture at her. The Applicant also denied that he had stalked an ex-partner after they broke up.
2. The Applicant was also cross-examined on an incident in 2009 when there was a claim made that the Applicant had followed a girl in his car and tried to coerce her into his car. The Applicant denied that claim. The following exchange took place:

MR BURGESS: Are you aware, Mr Pinder, that in 2009, a statement was filed against you by a 14-year-old girl, who says that you followed her and tried to coerce her into your car?

APPLICANT: I can't recall that part there, but I remember the police came to me when I was with my friend - jewellery shop was robbed in Sydney, in Rockdale and says that, "One of the detectives wants to talk to you" and I said, "For what?". She said, "Just go and see her, at Kogarah Police Station". So, I went down there and saw her, and she said, "Some young girl said you followed her", I said, "Me follow who?" and she said, "Some girl said you followed her". I said, "I haven't followed nobody". I said, "It wasn't me". That's the only incident I can remember was that this police - when my friend's jewellery shop got robbed in Sydney - I mean, in Rockdale...

...

MR BURGESS: Mr Pinder, is this another time that you've forgotten about?

APPLICANT: No, no, I'm telling you that I can recall the police officer came and said to me that one of her colleagues wants to speak to me about someone making a complaint of me.

I don't know how old the person was or who the person was and said, "You must go down there and see her". I said,

"No problem, I'll go down and see her" and I went down there.

...

MR BURGESS: I asked you before whether you'd had any more involvement with the police and I've asked you that several times and you keep on telling me no?

APPLICANT: Yes, but I couldn't remember that...

(Transcript at 40)

1. While the Applicant's repeated statements that he had not been spoken to by police in relation to these other incidents was clearly false, in the face of the Applicant denying the substance of the allegations and no witnesses being called to substantiate the substance of the claims, these documents cannot be taken as establishing criminal or other serious conduct. While the Applicant's repeated assertions that the police had not spoken to him on other occasions was shown to be incorrect, that does not, in the Tribunal's view, elevate the substance of the complaints to anything more than unsubstantiated allegations. Given the serious nature of the allegations and the consequences of acceptance of the truth of the allegations, a level of proof over and above that which has been provided by the evidence presented by the Respondent would be required (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).
2. The serious nature of the harm that would be caused if the Applicant were to commit sexual offences of the type for which he has been convicted is beyond dispute. Accordingly, the critical question for the Tribunal is as to the likelihood of the Applicant

re-offending. On the one hand we have an offender who has already demonstrated that he is, or at least was, a recidivist sex offender. Of most concern is the fact that he committed a very serious sex offence against a minor within three to four months of being released on parole for prior very serious sex offences and having completed a sex offenders' treatment program prior to release. Clearly the sex offenders' treatment did not work and while the Applicant has since undertaken drug and alcohol related rehabilitation programs, they do not address the Applicant's offending. There was no evidence that drugs or alcohol played any or any significant part in the Applicants repeated sexual offending. On the contrary the evidence seems to suggest that the majority of the offences, particularly the last of the offences being that against the minor in 1995,

were committed when the Applicant was sober and unlikely to have been under the influence of drugs given that he was coming from training. 3. On the other hand, somewhat unusually in cases of cancellation of visas, we are able to say that the Applicant has not reoffended sexually for over 24 years, 18 of which were spent in the community. The last conviction for a sex related crime was for an offence committed in May 1995. The Applicant was released back into the community in 1999 and was arrested on the larceny charge and reimprisoned in 2013. 4. In the circumstances the Tribunal assesses the risk of the Applicant committing further crimes of a sexual nature as being low. The Applicant has not relevantly

re-offended since 1995, during which period the Applicant has largely been in the community. The Tribunal is also mindful of the fact that the Applicant is now 63 years of age and that while the static factor tests undertaken by Associate Professor Freeman and Ms Town may still indicate that the Applicant is a medium risk (although Ms Town does express the view that the Applicant should be considered to be no risk because of her speculation that the test was "normed" to the United States when it should have been "normed" to Australia - see [70] above) there is support from both Associate Professor Freeman and Ms Town that given the Applicant's age that risk is diminished. This is supported by the study referred to in the footnotes to [71] above. 5. Further, as noted earlier in this decision, a common theme of the Applicant's sexual offending was the exploitation of his then status as a high profile athlete. That is no longer the case. Even if he were minded to re-offend in the manner that he did when he was a high profile player, the opportunity for such offending is significantly less now than it was then. 6. Direction 79 deleted paragraph 13.1.2(1) of Direction 65 which specifically addressed the consideration of unacceptability of risk of harm in a case involving revocation of a mandatory cancellation of a visa. The Tribunal notes that provisions to the same effect in paragraphs 9.1.2(1) and 11.1.2(1) were not deleted. Notwithstanding this, the Tribunal considers that the relevant test in the case of revocation of cancellation of a visa is still whether the risk posed by the Applicant is an unacceptable one, not whether there is no risk at all. That approach is consistent with the principles enunciated in paragraph 6.3 of Section 1 of Direction 79, in particular paragraph 6.3(4). In the present case the Tribunal's view is that, while there is a risk of the Applicant re-offending and that while the harm that would be caused if he were to re-offend in a sexual manner would be serious, because of the low likelihood of the Applicant reoffending, it is a risk that, in all the circumstances, is not an unacceptable one.

Second primary consideration: The best interests of minor children in Australia affected by the decision (13(2)(b))

(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.

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

1. 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);
2. 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;

1. 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;

1. 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;
2. Whether there are other persons who already fulfil a parental role in relation to the child;
3. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
4. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
5. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has two minor children in Australia, M who was born in November 2011 and T who was born in June 2010. The Applicant had a third minor child living in Australia at the time of him making the application to the Tribunal, however, that child has subsequently turned 18 years of age. Both of the minor children live with their respective mothers in New South Wales (R3, G38 at 310). The Applicant also has a four year old granddaughter.
2. The Applicant was living with the mother of the youngest child when he was imprisoned in 2013 (R3, G38 at 312). The Applicant's evidence was that prior to his imprisonment in 2013 he had relationships with all of his children (Transcript at 6). He has during his current imprisonment and detention kept in touch with his children, including his minor children and his granddaughter. The Applicant's evidence at the hearing was:

APPLICANT: Well, I've always been in contact with my kids since I was arrested and placed into prison - Acacia Prison for four years and a bit. I have always been in contact with my kids. My younger one, [M], came to visit me with his mother a few years in a row but - and the other ones I just contact them by telephone and Skype.

(Transcript at 6)

1. The Applicant's evidence in relation to his granddaughter was that she has just turned four years of age and lives in Western Australia with her mother (the Applicant's daughter), who is a nurse, and her partner who works on the mines.
2. In his Personal Circumstances Form in response to the notice of intention to cancel his visa signed by the Applicant on 4 December 2017 (R3, G38), the Applicant (R3, G38 at 312) advises that if he were to regain his visa he would like to reconcile with his partner and to raise their seven year old son and resume a normal family life. He says that since his imprisonment his partner has had financial hardship raising their son as well as mental and emotional strain resulting from the Applicant's absence.
3. The Respondent submits that little or no weight should be given to this consideration because (R1, page 12):
   • (a) the Applicant does not have daily care of the children and his removal would not deprive them of such care (paragraph 13.2(4)(a) of Direction 79);
   • (b) the Applicant has never met his granddaughter and does not have parental responsibility for her (paragraph 13.2(4)(a) of Direction 79); and
   • (c) the Applicant's 17 year old son will turn 18 seven days after the hearing, likely before the Tribunal decision, and that his interests do not weigh heavily (or at all) for the Applicant under this consideration (paragraph 13.2(4)(b) of Direction 79).
4. In relation to the child referred to in subparagraph (c) above, it is the case that the child has turned 18 years of age. While it is the case that the factual assertions in subparagraphs (a) and (b) above are correct and also the case that the circumstances identified are those referred to in the identified subparagraphs of Direction 79, the reason that the Applicant does not have daily care of the child and does not have parental responsibility for his granddaughter is because he is in detention. It was the case, however, that at the time that the Applicant was last taken into custody in 2013 he was living with and had parental responsibility in relation to the child.
5. Two of the adult children of the Applicant, Cameron Vendetti and Keanu Pinder,

gave evidence at the hearing. Written statements were also provided by other adult children of the Applicant. The Applicant's daughter Estee Pinder provided two statements (R3, G45 and G46) and the Applicant's son who recently turned 18 years of age, Isaiah

Oste-Pinder, also provided a statement (R3, G50). The evidence given by the Applicant's children at the hearing and in their statements was to the effect that the Applicant was a good father and that while in some of their cases he had been absent from their lives for periods, they had reconnected. 6. Evidence was also given by Ms Wendy Oste (the mother of Isaiah

Oste-Pinder), Ms Rebecca Vendetti (the mother of Cameron Vendetti) and Ms Tracey Smith (the mother of Estee Pinder and Keanu Pinder). The thrust of the witness statements and the evidence given at the hearing by the Applicant's children and their mothers, was that the children had good relationships with the Applicant and, to a greater or lesser degree, had kept in contact with the Applicant notwithstanding his terms of imprisonment and detention. 7. Statements and letters provided by others also referred to the Applicant's relationship with his children as follows: * (a) Shakilah Paikan who describes herself as a close friend of the Applicant for over 32 years - "He has always kept up his obligations to his children and continues to do so", "Kendal has a great relationship with his children" (R3, G53); * (b) Shannon Whittall who says that she has known the Applicant for over 10 years - "Kendal is an incredibly loving father and is always there for his children throughout the time that I have known him. I have witnessed the bond between Kendal and his children and it is a wonderful dynamic that they all have with him ... He has definitely learnt from his mistakes and is teaching his children to be good people" (R3, G54); * (c) Alex Carolan who is a former employer of the Applicant at the Sydney Fruit Markets and who has known the Applicant for more than 25 years -"I have come to know that he is totally devoted to his children as they are everything to him and he has kept in touch as much as possible in his circumstances and has looked forward to being with them when he is released" (R3, G55); * (d) Andrew Lazaris, former employer of the Applicant and President of the City of Sydney Basketball Association, who has known the Applicant for some 28 years-"Kendal has a loving partner and a young child that he absolutely adores and has been a wonderful family man" (R3, G56); * (e) Calvin Bruton, former player, coach and General Manager of the Perth Wildcats who has known the Applicant since 1985 and who recruited the Applicant to play for the Wildcats - "He lives for his kids and would do anything to be able to support them if given the chance" (A3); and * (f) Robert Williams, former owner of the Perth Wildcats - "I sincerely hope he is allowed to continue to live out his life in Australia as the man that he has become for the many years prior to his arrest in 2013 as a quiet, free citizen, father to his children that all love and need him to be in their lives" (A2). 8. The Tribunal appreciates that the makers of the above statements did not give evidence and that their comments were not tested by cross-examination. The Tribunal is, however, satisfied that notwithstanding his offending and his absences due to imprisonment and detention, the Applicant has been a positive influence on his children and would be a positive influence on his two youngest children and his granddaughter if he was permitted to stay. The best interests of the minor children in Australia would be served by the revocation of the cancellation of the visa.

Third primary consideration: Expectations of the Australian Community (13(2)(c))

(1) 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. The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [38] above).
2. The proper construction of the above provisions was considered by the Federal Court in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY).

That case was looking at the construction of the predecessor of Direction 79, namely Direction 65, which was relevantly in the same terms. In that case Mortimer J made the following comments: 1. 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. 2. 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 [2016] FCA 348; 248 FCR 296 at [64]-[66]). 3. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community. 4. The passage referred to by Mortimer J above in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296; [2016] FCA 348 (Uelese) states as follows: 1. In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven "Principles". There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that 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, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect. 2. ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement. 3. I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: "I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself" or in the Tribunal's consideration of the expectations of the Australian community. 5. In Afu and Minister for Home Affairs [2018] FCA 1311 at [85] Bromwich J found:

... The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.

1. The Tribunal has considered the effect of Mortimer J's judgment in a number of decisions (see for example Deputy President Rayment QC in Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17]; Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85]). In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted.
2. The more common approach, however, and one with which this Tribunal agrees, is that her Honour's comments in YNQY, in particular the operation of the "kind of deeming provision" (YNQY at [76] - see [99] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where "the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa". That was the approach taken by Member Eteuati in Doan and Minister for Home Affairs [2019] AATA 169 at [185]- [208]. Member Eteuati relevantly found:
   1. The Tribunal considers that Mortimer J's comments in paragraph 75 to 77 of YNQY decision are directed to the third sentence of paragraph 13.3 of the Direction either because Mortimer J considered that the seriousness and nature of the applicant's conduct in that case were such that the Australian community would expect that the person should not hold a visa, or more likely, that her Honour reached the conclusion that the Tribunal Member in that case had so found.
3. In reaching that conclusion Member Eteuati reasoned:
   1. In YNQY Mortimer J was considering, relevantly, a ground of review that the Tribunal had failed to deal with the primary consideration of the expectations of the Australian community according to law.
   2. At this point in her decision her Honour had already found that the Tribunal had committed a jurisdictional error arising from the way it had dealt with the primary consideration of the best interests of any minor children, and a jurisdictional error arising from the way the Tribunal had dealt with the consideration of impediments to the applicant re-establishing himself in his home country. In doing so, her Honour had discussed the circumstances in which it may be appropriate for a court to refuse to grant relief where it is found that a decision is affected by jurisdictional error. Her Honour found that a court may refuse to grant relief where, despite the error, the applicant was not deprived of the possibility of a successful outcome.
   3. In relation to the ground of review regarding the expectations of the Australian community, Mortimer J did not make a finding as to whether the Tribunal had erred legally in the way that the Tribunal had dealt with that consideration. Rather, her Honour expressed that even if such an error was found, the applicant was not deprived of the possibility of a successful outcome. For the reasons given below, the Tribunal finds that her Honour reached that conclusion because it had been found that the nature of the character concerns or offences regarding the applicant in YNQY were such that the Australian community would expect that the person should not hold a visa (see third sentence of paragraph 13.3(1)). In these circumstances, her Honour stated that it was inevitable that this consideration would weigh against revocation of cancellation.

1. The Tribunal considers that Mortimer J was expressing that the consideration of the expectations of the Australian community is adverse to any applicant, and that is inevitable that this consideration would weigh against revocation, where the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
2. In the case of Margach and Minister for Home Affairs [2019] AATA 353 Deputy President Forgie, having quoted [76] and [77] of Mortimer J's judgment in YNQY, stated:
   1. I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects non-citizens to obey Australia's laws while in Australia but leaves open, for example, what is an "unacceptable risk" that

non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that I have set out at [50] above. Granted that the principles are of critical importance,

the determination of what is unacceptable must have regard to the evidence. 3. Member Burford in Nathanson and Minister for Home Affairs [2019] AATA 642 stated at [135]:

The Federal Court's decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government's views as to the expectations of the Australian community and that Direction no. 79 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement in the principle expressed with respect to 'serious crimes' in paragraphs 6.3(2) and more generally in 13.3(1) of Direction no. 79. Applying Uelese, paragraph 13.3(1) of Direction no. 79 directs that the Tribunal should have due regard to the Government's views in this respect.

1. Two decisions handed down by the Federal Court on 11 April 2019 have, unfortunately, not clarified the position. In DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY), Griffiths J, having cited [76] and [77] of Mortimer J's decision in YNQY (see [99] above), made the following observations:
   1. ... The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant. The difficulty with the Minister's submission is that the language in YNQY at [76] and [77] is not in its terms confined to the circumstances of the particular applicant there and, on one view, appears to have been intended to have a more general application. The ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
   2. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. 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, including those which are referred to in [23] above.
   3. I also respectfully disagree with the primary judge's reference at [77] of YNQY that Robertson J's reasons for judgment in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]-[66] supported her Honour's view that it was "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do. It is desirable to set out those paragraphs from Uelese...

1. Griffiths J then cites [64]-[66] of Uelese (see [101] above) and says:
   1. These passages are directed to a submission made by the applicant in that case to the effect that the AAT there had no evidence to make the findings that it did regarding the expectations of the Australian community. In rejecting that submission, his Honour said that those expectations were not a matter which required evidence because the Direction itself contained statements concerning the Government's views as to those expectations. There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision­maker which is relevant to an assessment of this primary consideration. The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have "due regard" to the Government's views on Australian community expectations. What amounts to "due regard" will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
   2. This does not mean, however, that the AAT fell into jurisdictional error when it described the reasoning in YNQY as binding on it. That is because, the AAT then proceeded to adopt and apply the correct approach to cl 13.1, i.e. the broad approach. As mentioned above, the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant's circumstances when considering the expectations of the Australian community. The AAT then proceeded to implement that broad approach by reference to the totality of the applicant's circumstances. Accordingly, there is no jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [25] and [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]- [46] per Bell, Gageler and Keane JJ and DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [48]- [49] per Griffiths and Steward JJ).
2. His Honour is clearly expressing the view that the correct approach is the broad approach, namely that consideration is to be given to all of the applicant's circumstances when considering the expectations of the Australian community and that it is not inevitable that the primary consideration of the expectations of the Australian community will weigh against revocation.
3. The contrary approach seems to have been taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) also handed down on 11 April 2019 in which her Honour found:
   1. At the heart of the applicant's submission is that the Tribunal failed to comply with cl 11.3 of the Direction because it treated cl 11.3 as conclusively "deeming" (to quote Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at [76]) what community expectations are, irrespective of the individual's personal circumstances... By contrast, the applicant submitted that cl 11.3 requires the Tribunal to undertake "an assessment of community values made on behalf of [the Australian] community", citing Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] (Bromwich J). As such, in the applicant's submission, the Tribunal failed to appreciate that it was permissible under cl 11.3 for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention. He further submitted that if the Tribunal had appreciated that this was permissible, it may have reached a different decision...
   2. The applicant accepted at the hearing that in order to succeed on this argument, it was necessary for him to demonstrate that the decision of Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (Oluwafemi) was "plainly wrong": ... While the applicant also submitted that the passages from Mortimer J's decision in YNQY relied upon by the Tribunal were obiter, he submitted that if I were to find that they were ratio_, they were also plainly wrong._

1. In Oluwafemi the applicant submitted that the Tribunal was required to determine the content of the primary considerations specified in Direction 65, including community expectations under cl 11.3(1), and was to do so by reference to the particular steps taken by the applicant to reform his behaviour: Oluwafemi at [35].
2. Justice Thawley rejected this submission, holding that it:
   1. ... is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant's circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant's case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised.
3. Similarly, his Honour rejected the applicant's submission that the Tribunal erred in failing to take into account the fact that the applicant's wife and minor child were also part of the Australian community and in failing to take their expectations into account, holding that:
   1. Paragraph 11.3(1) of the Direction states, in effect, the Minister's policy as to the expectation of the Australian community - see: YNQY at [76] per Mortimer J ... It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant's wife and minor child at parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interests of the applicant's wife and minor child.
4. Perry J goes on to cite [76] and [77] of Mortimer J's judgment in YNQY (see [99] above) and finds:
   1. In my view, notwithstanding counsel's careful submissions, the applicant has not established that the decision in Oluwafemi and Mortimer J's reasoning in YNQY are plainly wrong and should not be followed.
5. Her Honour goes on to hold:
   1. Contrary, therefore, to the applicant's submissions, in my view there is nothing in the text or context of cl 8(3) which suggests that a primary consideration must be of the latter, fact-sensitive kind as opposed to establishing a "norm"... There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant's commission of serious criminal offences

1. In the applicant's submission, this clause [paragraph 6.3(5) of Direction 65] expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as "other considerations" in cl 12.
2. 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...
3. It is not clear to this Tribunal what the effect is of the qualifying final words in [42] of the above decision. Having found that the "norm" is that the expectations of the Australian community are that where paragraph 11.3 of Direction 65, which is materially the same as paragraph 13.3 of Direction 79, is applicable, there would be a cancellation of the visa, it is not clear in which cases that norm would not apply. Accordingly, while seemingly accepting the narrow approach, namely that this consideration requires the

decision-maker to treat this consideration as being against the revocation of the cancellation of a visa, her Honour leaves open the possibility that that may not be so in all cases. This Tribunal, however, takes the effect of Perry J's decision in FYBR to be affirming the narrow approach, that is, that this consideration can only weigh against the revocation of the cancellation. 4. In the present case if the broad approach of the type taken by Griffiths J in DKXY is adopted, that is taking into account all of the Applicant's circumstance to determine the expectations of Australian community, it is the Tribunal's view that it is not certain that the expectation of the Australian community would be that the Applicant's visa should remain cancelled. While the Applicant's sexual offending is certainly very serious and, absent any other contrary indicating circumstances, the seriousness and nature of the offences "are such that the Australian community would expect that the person should not hold a visa" (from the third sentence of paragraph 13.3(1) of Direction 79), there are circumstances which might cause the Australian community's expectation not to be that the Applicant should not hold a visa. In particular the Applicant's advanced age, the fact that it is over 24 years since the Applicant committed the last of his sex related offences, the close ties that he has with Australia, the positive contribution that he has made over an extended period and the best interests of infant children may, if the broad approach is taken, cause the expectations of the Australian community not to be that he should not hold a visa. 5. Even if one were to adopt the narrow approach of Perry J in FYBR to the effect that Direction 79 "expresses the expectation of the Australian community only in terms of the negative conclusion" the strength of that expectation or the weight to be given to it would be relatively minor given the mitigating circumstances. 6. Accordingly, the Tribunal finds that this primary consideration either weighs marginally in favour of the revocation of the cancellation of the visa or, if it weighs against the revocation of the cancellation of the visa, it does so only marginally.

(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):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. The Applicant does not raise any non-refoulement issues. The Tribunal is satisfied that is the case.

Strength, nature and duration of ties (14(1)(b))

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2. 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 non-revocation 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).

1. The Applicant:
   • has lived in Australia for 34 years;
   • has eight children born in Australia and one grandchild born in Australia who are Australian citizens and his daughter is expecting another child in August;
   • still maintains contact with his Australian children;
   • was in a relationship with the mother of his youngest child at the time of his most recent imprisonment;
   • has offers of employment from former long-standing employers;
   • has no ties with or relatives in the Bahamas which he left when he was 10 years old and has never returned;
   • has contributed positively to the Australian community over the majority of the period that he has been in Australia;
   • has social links with Australian citizens;
   • has been employed full time for the whole of his time while in the community; and
   • did start offending shortly after he arrived in Australia.
2. As well as statements from family members and former partners, a number of statements of support were provided by people who have known the Applicant for significant periods. Mention has already been made of the statements provided by Calvin Bruton and Robert Williams attesting to his contribution to the Perth Wildcats and to the statement of Andrew Lazaris attesting to the Applicant's contribution to the sporting community through his involvement with the Sydney Kings NBL team. Mr Lazaris in his letter of support written as the owner of the Haldon Function Centre (R3, G57) refers to the Applicant in coaching basketball at the New South Wales Premier level as being "a wonderful role model to young men aspiring to reach top level in the game". In that statement Mr Lazaris advises that the Applicant had been working for him at his family function centre, assisting in coordinating and setting up for functions and running them, receiving deliveries of stock and being the caretaker for the centre. Mr Lazaris advises that he "...would personally have no hesitation to re-employ Kendal immediately if he was allowed to stay in Australia and would also welcome him to stay above the function centre if required". The Applicant's Personal Circumstances Form (R3, G38 at 316) identified that he worked at the function centre from 2007 to 2013.
3. In his letter of support (R3, G55) Mr Alex Carolan who employed the Applicant as a forklift driver at the Sydney Fruit Markets from 1999 to 2006 also advised that

"I am certainly prepared to employ him again". 4. During his time as a professional basketballer the Applicant was involved in charitable work. He identifies (R3, G38 at 316) involvement with The Starlight Foundation, Multiple Sclerosis Association and Princess Margaret Hospital. He also says that when he owned his own sports shop in Perth when playing for the Wildcats that he donated sports equipment to underprivileged children. 5. Evidence was given at the hearing by Daniel Jackson who also gave a written statement (R3, G52). Mr Jackson's evidence was that he suffers from cerebral palsy and is confined to a wheelchair. He says that he first met the Applicant following a Perth Wildcats game in 1987 when he was a small boy. They have remained friends since that meeting and Mr Jackson says that the Applicant has provided great support to him over that period. Mr Jackson's mother also provided a statement (R3, G51) in which she advises that the Applicant "... has always shown great understanding and compassion toward Daniel and has helped and inspired my son" and that "[h]e has been a great support to both myself and my son, keeping in contact with us even when living interstate". 6. The Tribunal accepts that the Applicant's ties to Australia and his family and social links with Australian citizens are strong and long-standing and that based on the statements provided by family members the effect of his being removed from Australia would be very significant on his family members. This consideration weighs significantly in favour of the revocation of the cancellation of the visa.

1. The Respondent made no submissions in relation to this consideration and there is no evidence before the Tribunal of what impact there might be on the Applicant's victims if the cancellation of his visa was revoked.

(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:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and

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

1. The Applicant's SFIC refers to the fact that the Applicant left the Bahamas when he was a child and has no relatives in the Bahamas. He asserts that he has no employment prospects, no housing, no healthcare and asserts that his basic human needs will not be met placing him in a position of extreme hardship. The Applicant's SFIC claims that the rate of unemployment in the Bahamas is nearly 50% and that there are no social or economic supports for someone like him (R1, page 5). As the Respondent's counsel rightly pointed out in closing submissions (Transcript at 96), there is simply no evidence to support any of the Applicant's claims in this regard. The Respondent's counsel pointed out that on the publicly available information, primarily US State Department reports, the Commonwealth of the Bahamas is the third wealthiest country in the Americas and the 26th wealthiest country in the world.
2. There was no evidence put before the Tribunal which would establish any particular impediment that the Applicant would face in establishing himself and maintaining the basic living standard generally available to other citizens if he were to be forced to relocate to the Bahamas. This is not a consideration that weighs in favour of the revocation of the cancellation of the visa.

1. Guidance is given by Direction 79 of how the decision maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:

(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. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217.
2. Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word "secondary" tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...

1. The Tribunal agrees with the approach outlined by Senior Member Dr M Evans.
2. Looking at the first primary consideration, the protection of the Australian community, axiomatically this consideration could never weigh in favour of the revocation of the cancellation of an offender's visa. The risk of harm to the Australian community would in every case be less if the applicant was removed. The relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour against the likelihood of that occurring and what weight should be given to this consideration as against the other considerations. On the basis of the Tribunal's assessment of the low likelihood of the Applicant re-offending, the risk is not an unacceptable one. The Tribunal's view is that while the primary consideration of the protection of the Australian community weighs against the revocation of the cancellation of the visa, which it must always do, in the present case it does so only marginally.
3. The second primary consideration, the best interests of minor children in Australia weighs significantly in favour of the revocation of the cancellation of the visa. The third primary consideration, the expectations of the Australian community, in the Tribunal's view weigh marginally in favour of revocation of the cancellation of the visa if the broad approach is taken (see [108]-[110] above) or, if the narrow approach is taken (see [111]-[114] above), while the expectation may be of cancellation, the weight to be given to that expectation is not significant.
4. Of the other considerations identified in paragraph 14 of Direction 79, the strength nature and duration of the ties that the Applicant has to Australia weigh heavily in favour of the revocation of the cancellation of the visa.

1. The Applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.

1. The decision under review is set aside and substituted with the decision that the cancellation of the Applicant's visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 139 (one hundred and thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

[1] R.K.Hanson, 'Does Static-99 Predict Recidivism Among Older Sexual Offenders?' [2006] 18 Sexual Abuse A Journal of Research and Treatment 344.