Willis and Minister for Immigration and Citizenship [2011] AATA 859 (2 December 2011)

Last Updated: 5 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/3918

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KRIS WILLIS

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 2 December 2011

Place Perth

Decision

The Tribunal affirms the decision under review.

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

S D Hotop
Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a citizen of New Zealand – applicant arrived in Australia in June 2008 when aged 31 years – applicant committed internet sex offences involving persons believed to be 12 years or 13 years old in period July-October 2009 – applicant convicted of internet sex offences and one offence of possessing child pornography – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – best interests of child and other relevant considerations favour non-cancellation of visa – protection of Australian community outweighs best interests of child and other relevant considerations – applicant’s visa should be cancelled – decision under review affirmed

Migration Act 1958 (Cth), s 501(2)

Direction [no 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

2 December 2011

Deputy President S D Hotop

INTRODUCTION

1. Kris Willis (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 7 September 2011, cancelling his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

THE FACTUAL BACKGROUND

2. The applicant was born in June 1977 in New Zealand and is a citizen of New Zealand.
3. The applicant first arrived in Australia on 29 June 2008 and he has remained in Australia since that date.
4. On 19 October 2010 the applicant, following his plea of guilty, was convicted in the District Court of Western Australia of the following offences under section 204B of The Criminal Code (WA).
   • 6 counts of using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity;
   • 11 counts of using electronic communication with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity; and
   • 6 counts of using electronic communication with intent to expose a person he believed to be under the age of 13 years to indecent matter.

On the same date the applicant also pleaded guilty to, and was convicted of:

• one count of possessing child pornography; and
• one count of possessing an indecent or obscene article.

5. On 19 October 2010 the applicant was sentenced by Schoombee DCJ in respect of the abovementioned convictions as follows:
   • sentences of 18 months’ imprisonment in relation to 12 counts under s204B, to be served concurrently;
   • sentences of 16 months’ imprisonment in relation to 5 counts under s 204B, to be served concurrently with each other and with the abovementioned sentences;
   • sentences of 15 months’ imprisonment in relation to 6 counts under s 204B, to be served concurrently with each other and with the abovementioned sentences;
   • a sentence of 6 months’ imprisonment in relation to the count of possession of child pornography, to be served cumulatively upon the abovementioned sentences; and
   • a fine of $1,000 in relation to the count of possession of an indecent or obscene article.

Accordingly, the total effective term of imprisonment to which the applicant was sentenced on 19 October 2010 was two years. He was made eligible for parole after serving one year of imprisonment, namely, on 18 October 2011.

6. On 7 September 2011 a delegate of the respondent cancelled the visa under s 501(2) of the Act.

THE RELEVANT LEGISLATION

7. Section 501(2) of the Act provides:

“ The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.”

The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

THE MINISTERIAL DIRECTION

8. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

and Part B:

“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. ...”

Direction [41] will be relevantly referred to in more detail later in these reasons.

THE EVIDENCE

9. The evidence before the Tribunal comprised:
   • the “G Documents” (G1–G14, pp 1–101) lodged by the respondent (Exhibit R1);
   • page 3 of Department of Corrective Services Immigration Report (G12) (Exhibit R2);
   • statement of the applicant, dated 22 October 2011 (Exhibit A1);
   • Department of Corrective Services Individual Management Plan, dated 19 October 2011 (Exhibit A2); and
   • the oral evidence of the applicant, and of Alan David Willis.

THE SENTENCING REMARKS OF SCHOOMBEE DCJ ON 19 OCTOBER 2010

10. When sentencing the applicant for the abovementioned offences on 19 October 2010, Schoombee DCJ made the following remarks:

“ ...
Mr Willis, you may remain seated during sentencing. Now, you have been convicted today after a plea of guilty on the fast-track system of six charges of using electronic communication with the intent to procure a child you believed to be under the age of 16 years to engage in sexual activity, 11 charges of using electronic communication with intent to procure a child you believed to be under the age of 13 to engage in sexual activity, six charges of using electronic communication with intent to expose a child you believed to be under the age of 13 years to indecent material, and one count of possessing child pornography in the form of computer data.
You also pleaded guilty today to a charge of possessing an indecent or obscene article, namely four video files, which charge was remitted to this court from the Joondalup Magistrates Court.
Now, Mr Willis, the maximum penalty that the law prescribes for the offence of using electronic communication with the intent to procure a person who you believed was under the age of 16 years to engage in sexual activity is a sentence of imprisonment of five years.
The maximum penalty for using electronic communication with the intent to either procure a person who you believed to be under the age of 13 years to engage in sexual activity, or to expose such a person to an indecent matter is a sentence of imprisonment of 10 years. The maximum penalty for the offence of possessing child pornography is a sentence of imprisonment of five years.
So you can see how serious this type of offending is regarded by the people of Western Australia who make the laws through their representatives in Parliament. The maximum penalty for the possession of an indecent or obscene article is a fine of $5,000.
Now, the prosecutor has read out the circumstances under which you committed these offences, and those facts have been admitted by you through your counsel. I shall not repeat them but I rely on them for your sentencing.
Now, the offences of the Internet sex in which you engaged were very serious offences. You engaged in what you thought were three different – or you engaged what you thought were three different girls of tender age in talk about sex. And in relation to the counts where you procured them to engage in sexual activity, you actually asked them to touch themselves and masturbate themselves.
It is irrelevant that the girls that you exposed to talking about sex and engaging in sexual activities were not real girls but role playing police officers. The fact remains that you were prepared to engage and intended to engage in such activities for your own gratification without any thought or concern of how this might impact on the normal development of young girls.
The girls that you believed you were talking to were aged 12 in respect of 17 of the counts, and 13 in respect of six of the charges. You were aged 32 at the time. The substantial age difference between you and the girls who you believed you were talking to is an aggravating factor in your sentencing.
Your offending by engaging young girls in Internet sex took place over a period of some three and a half months, so it was not an isolated incident. On one occasion, you sent the girl who you thought was aged 12 sexually explicit material in that you appeared on webcam holding your exposed penis. This is the subject of count 22.
What is also of concern is that on one occasion you asked one of the girls which way she was walking to school and told her that you wanted to drive past her so that you could see her. During the same session on MSN, you asked her whether she still wanted you to be her first, after you had previously discussed with her that you wanted to be the first to have sex with her.
On another occasion, you again suggested to the girl that you were talking to that she bunk school that day and that you could engage in sex together all day. You discussed with her whether that could happen at her house or in a park. I accept that you did not proceed to make actual agreements (sic) to meet up with the girl, but it is of concern that you had talked to her about seeing her and having sex with her in person.
Now, I accept in your favour that apart from exposing yourself to one of the girls on the one occasion via the webcam, you did not otherwise send the girls any pornographic images or other sexually explicit material.
Now, I’ve read the transcribed conversations and the instructions that you gave to the girls to engage in sexual activity, which were quite explicit, and there is repeated reference to you wishing to assist them with their masturbation or to have sex with them. You knew that what you were doing was unlawful because you told one of the girls that if she was not a real child, you would get into trouble. You also admitted during the interview with the police that what you were doing was against the law.
As regards the charge of possessing child pornography, the hard drive found in your computer contained 42 files on which you had stored child pornography. I have viewed the material that was provided to me, and some of the video clips show penetrative sexual activity between children and adults which is explicit and depraved.
At least one mage shows a young girl bound with rope. A lot of the children on the video clips appear to be very young, around the age of 11 or 12, or even younger. You told the author of the pre-sentence report that you had downloaded this material from peer-to-peer sites after you heard workmates discussing these sites.
You said to the author of the pre-sentence report that you were curious and only viewed each download on one occasion. However, you obviously did not delete the material and retained it on your hard drive. Further, you collected this pornographic material over some time since 2008. Again, you knew that having child pornography in your possession was illegal.
Possession of child pornography is not a victimless crime. The mere fact that people download and possess child pornography creates a market for the production of such material, and it is the young and vulnerable children who are forced to participate in these videos or images who are exploited and corrupted.
I take into account that you did not distribute or exchange the child pornography. But as I have said, the mere possession and downloading of this material causes people at the other end to produce this material and thereby to exploit and psychologically harm young children.
I take into account that the number of video clips involving child pornography held by you was relatively small in comparison to the volume of material that is often the subject of child pornography before this court. As regards the offence of possession of an indecent or obscene article, it is, by its description, highly depraved material.
Now, as regards your personal circumstances, you are now aged 33, and were aged 32 at the time of the offending. You were born in New Zealand as one of four children. You described your childhood to the author of the pre-sentence report as hard, and said that your father was a sergeant major in the army who was a heavy drinker and a strict disciplinarian who meted out severe punishment to his children.
You also did not feel loved by either of your parents. Your parents separated in 1992, and you then lived with your mother, who you said had little control over your behaviour. You’re now again in contact with your parents, and your relationship with them has improved.
You have been living with your current partner for approximately three years, or you were involved with her for three years and you have a son together, who’s now aged two. You told the author of the pre-sentence report that your relationship is strong and supportive, but your partner’s obviously disappointed with what you have done.
The author of the pre-sentence report says that you told her that you struggled at school and had to attend remedial classes during your high school years. This was most likely caused by the effects of a near drowning that you experienced when you were two and a half years old. You were found face-down in a neighbour’s swimming pool and spent 16 days in hospital, being deeply unconscious for 10.
You were then diagnosed with a significant brain injury. As a result of these problems, you were bullied at school and constantly involved in fights, and were finally asked to leave school.
As far as your employment is concerned, that has ranged from truck driving to tyre fitting, and you were most recently employed as a road sweeper/driver, which position you held for approximately 18 months. Your counsel informed me that you disclosed to your employer that you had been charged with these charges and, as a result of that, your employment was terminated. So neither you nor your wife are in employment at the moment.
The author of the pre-sentence report has expressed the conclusion that although you lack insight into your offending, and have tried to minimise it to some degree, you have shown a keen interest in exploring why you offended and what you can do to prevent further offending of this nature.
Now, Mr Willis, you have two prior convictions which you incurred in New Zealand in 2004 and 2005. One was for common assault, and the other one for operating a vehicle carelessly. In each case, you were fined $400. You have no previous convictions in Australia.
Now, your criminal record does not lead me to increase the sentences that I would otherwise have imposed for your current offending, but they mean that I can’t regard you as a first offender before me.
Now, I’ve considered the sentencing submissions made by your counsel, also those by the State, and I’ve read the pre-sentence report, the psychological report, and the psychiatric report obtained by this court.
The author of the psychological report notes that it is well documented that you have suffered a significant brain injury as a result of the near drowning, and she understands that this has affected your mental processes to a significant degree. The biggest problem seems to be that you have poor impulse control, get frustrated easily, and find it difficult to control. (sic)
The psychologist also referred to the fact that due to moving schools on a number of occasions and you having to adjust to new schools, you had difficulty forming bonds of attachment with other children. She’s of the view that this may have led to you feeling socially inept and inadequate. She says the learning problems at school are likely to have made this worse, and resulted in you becoming withdrawn and socially isolated.
The psychologist notes that you have told her that you were previously diagnosed with depression and social anxiety. She also notes that you have, on a previous occasion, attempted suicide after separating from a partner, and you disclosed to her that you have had suicidal thoughts since that occasion. The psychologist noted that you do seem to have a high interest in matters of a sexual nature and that you have diverse sexual interests.
She came to the conclusion that – or she said that you denied that you have any specific sexual interest in children, and she came to the conclusion that that may well be true. But because you have not taken full responsibility for your role as an adult against the young children in your offending, she is concerned that you might have crossed the boundary to physical touching if a child had agreed to do so.
However, I accept in your favour that you did not make any attempt to eventually contact a child other than driving past the child. The psychologist also did some psychometric testing, and came to the conclusion that this indicated that you still suffer from major depression and social anxiety.
She also came to the conclusion that you have some intensive treatment needs. She suggested that you should attend a sex offender program, that you should also obtain treatment for emotional management issues which would be most suitably undergone in private sessions, and she also suggests that you attend a positive parenting course.
She also applied that Static−99 test which measures the risk of re-offending, and came to the conclusion that you are in the medium to high risk category.
As far as the psychiatrist is concerned, he has come to the conclusion that it is to your credit that you have shown remorse, and you told the psychiatrist that you feel disgusted in yourself. However, you also said to the psychiatrist that you feel that this whole matter has been blown out of proportion, and the psychiatrist comes to the conclusion that this means that you don’t have enough insight into your offending.
The psychiatrist refers also to a history of self-harm which started when you were an adolescent. He also refers to your suicide attempt in 2001, and states that after another relationship breakdown approximately four years ago, you put your fist through a glass door resulting in serious injury to your tendons. So he just refers to these mattes, not to indicate that you’ve done anything wrong, but to indicate that you have had some difficulty with impulsive behaviour, and also with self-harm and suicidal inclinations.
You told the psychiatrist that in 2006 you were assessed by a psychiatrist and given some medication, and that you felt considerably better after you had taken that medication. Unfortunately, it seems that you haven’t always – taking (sic) it very regularly and it would be helpful if you were assessed again by a psychiatrist, and possibly being placed on some medication.
You told the psychiatrist that you started drinking alcohol at the age of 10, and were engaged in significant binge drinking during your younger years. This led to problematic behaviours like fights and slashing car tyres. It also resulted in the common assault for which you were found guilty in New Zealand.
You also told the psychiatrist that you are still drinking from time to time, and that you drank approximately three bottles of Rum in the two weeks prior to your assessment. On the other hand, you told the psychiatrist that you can go without alcohol for a month.
You also told the psychiatrist that you use cannabis, or used cannabis frequently during your early 20s, but have only used it rarely in recent years. Now, the psychiatrist referred to your family’s psychiatric history and to your personal and social history which I shall not repeat.
He says that you told him that your interest in watching child pornography or talking on the Internet was really driven by your interest in female masturbation, rather than an interest in children and sexual interest in children as such.
The psychiatrist comes to the conclusion that you do not have any features which indicated depression, but that you do have social anxiety to a mild degree. However, he says that you do exhibit maladaptive personality traits in the antisocial and borderline range, but you are not cognitively impaired.
He says that although the drowning incident may have contributed, it is more plausible that a personality disorder as described, and also the result of your childhood and adolescent environment and experience, are primarily responsible for the mental condition that you are currently in.
The psychiatrist comes to the conclusion that the factors which contributed to your offending are your hyper sexual drive, a specific interest in female masturbation, a possible sexual interest in children, although he acknowledges that you deny that, but points out that you have previously viewed child pornographic images in New Zealand.
The psychiatrist also says that the social anxiety may have led to you feeling more comfortable on the Internet, and that may have been a factor in your offending. He’s also of the view that you should receive some treatment by attending a sex offender program. You would also benefit from alcohol counselling, and you should attend a program which helps you to improve your skills of coping with stressful situations.
Now, Mr Willis, turning to the mitigating factors that apply in your case. You have pleaded guilty on the fast-track system, and that means that you have accepted responsibility for your offending, and that obviously shows remorse in itself.
Your plea of guilty also assisted the administration of the criminal justice system because we did not have to run your trial. You are therefore entitled to a reduction in the sentences that I would otherwise have imposed.
I also note that your immediate reaction when confronted by the police was to admit to the offences, and you cooperated with the police by partaking in a video record of interview in which you made admissions. That again shows acceptance of responsibility and remorse.
I also take into account, as a mitigating factor, the finding by the psychologist that the effect of the near drowning on your mental processes is likely to have made a contribution to your limited understanding of the moral issues involved in talking to young girls about sex and in making use of the child pornography.
I also accept that your social anxiety contributed to you finding yourself in the situation where you sought sexual contact and comfort on the Internet. I note that you have shown remorse and have expressed a keen interest in exploring why you have offended, and then what you can do to prevent further offending of this nature.
I also take into account that, at the end of the day, there was no meeting between you and victims, and that you did not send them any explicit pornographic material, apart from the one occasion where you exposed your penis on the webcam.
Now, Mr Willis, in sentencing you, I cannot only take into account your personal circumstances and your rehabilitation, but I also need to take into account that you need to be punished for your offending, that the community needs to be protected, and that you and others need to be deterred from committing similar offences in the future.
Now, engaging in Internet sex with children and the possession of child pornography gives rise to a very real need to protect the community, namely the children who would be real in (sic) victims of child Internet sex, and also those children who are abused, degraded and corrupted in the course of the production of child pornography. As I said before, it is not a victimless crime.
It is not an excuse to say that the possession of the child pornography did not lead to any sexual activity with the children or that it was not distributed to others. It is the mere possession of child pornography which creates a market for the production of such material.
In the circumstances, one of the most important considerations regarding your offending is deterrence, both personal and general deterrence. General deterrence means that the sentence must be seen by the community as one which will hopefully deter other people from committing the same or similar offences.
Although you have denied a specific sexual interest in children, the psychologist has assessed you at a medium to high risk of re-offending, and personal deterrence, therefore, remains a factor that I have to take into account. In offences involving child Internet sex or child pornography, factors such as your limited prior offending and favourable background carry less weight than in other types of offences.
Now, I have looked at all the options allowed by the Sentencing Act, and taking into account that a court must not impose a more severe sentencing option unless it is satisfied that it is not appropriate to use any of the less severe options available, a court must not impose a sentence of imprisonment unless the court decides that the offence is so serious that no other sentence can be justified or the protection of the community requires it.
The problem with your offending, Mr Willis, is though that there are a number of counts with regard to the Internet sex, plus there is the child pornography, and as I indicated to your counsel, the usual sentence for both these type of offences is a sentence of immediate imprisonment, and the main reason for that is the general deterrence, that it should be a sentence which deters other people from doing this sort of offending.
Now, in my view, therefore, there is really only a sentence of imprisonment which is the appropriate sentence in respect of both the Internet offences and also the child pornography offences (sic). This is not a situation where the Internet was only on one occasion or with only one weak victim, or was otherwise in a (sic) unusual category. In fact, the number of counts before me and the fact that three separate victims were involved makes it a very serious offence.
Now, in fixing the term of imprisonment for each count, I’ve taken into account your plea of guilty, and the mitigating circumstances that I have referred to.
So in relation to counts 7, 8, 10, 13, 14, 15, 16, 17, 19, 21 and 23, which are the counts of using electronic equipment with the intent to procure a child who you believed to be under the age of 13 years to engage in sexual activity, I consider that an appropriate term of imprisonment in all the circumstances, including the plea of guilty and the mitigating factors, is 18 months.
I also impose a sentence of imprisonment of (sic) 18 months in relation to count 22, which is the count of exposing a child under the age of 13 to indecent material, and which involved you showing yourself on webcam with your penis exposed.
In relation to counts 6, 9, 11, 12 and 18, which are the other counts of using electronic communication with the intent to expose a child who you believed to be under the age of 13 years to indecent material, I consider that an appropriate term of imprisonment in all the circumstances, including your plea of guilty and the mitigating factors, is 16 months.
As regards counts 1, 2 3, 4, 5 and 20, which are the counts of using electronic communication with the intent to procure a child who you believed to be under the age of 16 years to engage in sexual activity, an appropriate term of imprisonment in all the circumstances, including your plea of guilty and the mitigating factors, is 15 months.
In relation to count 24, which is the possession of child pornography, I consider that an appropriate term of imprisonment in all the circumstances, including your plea of guilty and the mitigating factors, is 15 months.
In relation to the offence of possessing an indecent or obscene article, which is the offence from the Magistrates Court, I impose a fine of $1,000.
Now, in arriving at an appropriate term of imprisonment for each of these offences, I have had regard to the minimum period that you will have to spend in custody in respect of your sentence and the minimum periods that other offenders had to spend in custody under sentences imposed before the recent change in the law. I’ve also had regard to the maximum penalties which I’ve already referred to.
Now, Mr Willis, having imposed sentences which are appropriate for each of these offences, I now need to assess whether these sentences should be made concurrent or cumulative. ‘Concurrent’ means that they will be served at the same time, while ‘cumulative’ means that they will be served one after the other.
Now, your offending involving the Internet sex with children took place over a period of approximately three and a half months, and involved three different girls. There is, therefore, some argument for making some of the sentences in relation to the Internet sex with the children cumulative.
However, in my view, all the offences dealing with the Internet sex arose out of one continuing episode of offending, and involved the same type of criminal conduct on your part. Accordingly, I’m of the view that all the sentences in respect of counts 1 to 23 should be served concurrently; that is, at the same time.
I shall make the head sentence in relation to these counts the sentence for count 22 which is the sentence of 18 months’ imprisonment.
Your offending in relation to the possession of the child pornography is different in nature to the Internet sex, although it still involved sexual conduct in relation to children. You collected the child pornography over a period of approximately one year. And it could therefore be said that the sentence of 15 months imposed in relation to the possession of the child pornography should be served cumulatively on the head sentence of 18 months imposed for the Internet sex with children.
However, I also have to take into account the principle of totality. This principle requires that when all sentences imposed are looked at together, they must bear a proper relationship to the overall criminality involved in all the offences having regard to all the circumstances of the case, including your personal circumstances. The totality principle also requires that I should not impose a crushing sentence.
Having a last look at your sentences, I’m of the view that I should adjust the sentence of 15 months for the possession of the child pornography to a sentence of six months in order to arrive at a total sentence that reflects your criminality as a whole, and also removes any crushing element that might otherwise be present.
This means that your total sentence of imprisonment will be for a period of two years.
I have considered your counsel’s submission whether I could impose a suspended sentence of imprisonment. But as I have indicated, the usual sentence is a sentence of immediate imprisonment unless there are some factors which take it out of the usual situation. I’ve again looked at all the matters relevant to the circumstances of your offending, the mitigating and aggravating factors, as well as your personal circumstances.
However, your offending is too serious, Mr Willis, to suspend your sentence, and a suspension of your sentence would go against the general approach by the courts to impose a sentence of immediate imprisonment for Internet sex with children and for the possession of child pornography unless there are very unusual circumstances.
As I said before, the offences of the child Internet sex were numerous and serious, and the level of depravity of the child pornography was significant.
There is no reason, however, why you should not be able to apply for parole. And you may do so after you have served half of your sentence; that is, after one year.
...” (G9, pp 63–74)

THE APPLICANT’S EVIDENCE

11. The applicant tendered in evidence his statement dated 22 October 2011 (Exhibit A1), and he confirmed that its contents are true and correct. That statement is as follows:

“ Cancellation of my Class TY Subclass 444 Special Category (Temporary) visa and subsequent deportation to New Zealand will create extraordinary difficulties for me and for my entire family is based in Australia. I appeal to you to reconsider your decision to restore my visa. Returning to New Zealand will mean that I will have no accommodation, no employment or employment prospects, no means of support from my family which the ones I talk to are now living in Australia. I will be in destitute.
I have good prospect in Australia and would be capable meaningful employment and have every reason to establish a rewarding career in Automotive Mechanics which I am working towards while I have been in prison. I have been fully employed in the Mechanical Workshop and also completing a Cert II of a mechanical Traineeship. This will allow me to gain excellent employment prospects for the future, hopefully in my adopted country of Australia.
My son was born in Australia and would suffer enormously if I was forced to go to New Zealand. My partner also loves Australia and wishes to stay here. Of course I would ask my family to follow me back to New Zealand but would not expect them to follow me back due to the fact that they are very settled here and living very happily. My father has now moved to Perth so he can be more involved in my families lifes. He is terminally ill and will need my care and support. Deportation to New Zealand would effectively destroy my family.
I am ashamed and deeply remorseful of my offending behaviour and sincerely regret hurting so many wonderful people. I have participated fully in treatment options to ensure that such conduct will never happen again. I am currently completing a program and have been informed that I am doing very well in my strong goal for rehabilitation. This includes mapping out potential pitfalls and developing awareness of the devastating consequences of further distorted thinking. Above all, I have affected my family and my victims. I can only assist their healing by becoming a better person and a substantive role model for my son. I very much would like to see my son grow up to be proud of his father.
Due to my being in a new country and not having friends or more family I seeked the comfort of the internet chat room to vent my stress and frustration. On doing so I entered a point of losing control of my thoughts, which lead me to commit offences online, which I now know as the wrong path to take.
I am going to seek a good and positive social network of friends by getting into play a number of sports so that I am not put in the same situation that sent me to prison.” (sic)

12. The applicant also gave oral evidence to the following effect:
    • his father, partner and their son reside in Perth;
    • his mother, sister and half-brother reside in New Zealand;
    • his relationship with his father is “very close”;
    • his relationship with the other members of his immediate family in New Zealand is “not perfect” and has its “ups and downs” but is a “regular relationship”;
    • his immediate family members in New Zealand are “not in a position” to provide support to him – he has “burnt [his] bridges” in relation to them;
    • he has a “distant” relationship with his mother and the future of that relationship is “up to [him]”;
    • prior to his arrival in Australia he had lived all his life in New Zealand, with the exception of 2 years in Singapore when he was 2–4 years old;
    • he worked in New Zealand as a tyre fitter and a truck driver and had “quite a few jobs”;
    • he has received some vocational training by way of a mechanical traineeship while in prison and these skills will assist him to gain employment;
    • he would probably be able to gain employment or access to social security if he returned to New Zealand;
    • he has friends and a social circle in New Zealand with whom he is still in contact and from whom he would receive social and emotional support if he returned to New Zealand;
    • he committed some “minor” offences in New Zealand, namely common assault (“fighting when drunk”) and careless driving, for each of which he was fined $400;
    • in his “younger days” – his “early-to-mid 20s” – he had “issues” with alcohol and cannabis;
    • the offences which he committed in Australia, comprising “sexual chats with under-age minors via computer” and “some child porn”, were the result of “poor judgment on [his] part”;
    • the description of the offences in the judge’s sentencing remarks was accurate, except that none of the children in the material appeared to him to be younger than 12 years of age;
    • he committed the offences out of “boredom”;
    • at the time he did not think of the effect his behaviour would have on 12-year-old or 13-year-old girls;
    • on one occasion in 2008 in New Zealand he had viewed child pornography involving children of about 14–16 years of age on a mate’s computer;
    • had he not been caught, he would not have “gone beyond the computer” – he would not have “crossed that boundary” even if a child with whom he was chatting agreed to physical contact;
    • the comments about him in the psychological report and the psychiatric report referred to in the judge’s sentencing remarks are generally “fair enough”;
    • he needs counselling in relation to all of the matters referred to in those reports, with the exception of alcohol counselling;
    • he has been attending the intensive sex offenders treatment program which commenced on 7 June 2011 and is due to be completed on 19 December 2011;
    • that program includes “adjusting thought patterns, showing empathy, management plans, goals, identifying awareness and problems that led to offending”;
    • he would like to do courses on positive parenting and relationships and victim empathy but these are not available to him in prison;
    • he agrees that it is too early to judge whether he has been rehabilitated;
    • his partner and their son (who was born in December 2008) have visited him once per month since May 2011 when he was transferred to Karnet Prison Farm, and they talk on the telephone every night;
    • before May 2011, when he was in Hakea Prison, he was not allowed to see his son on visits, but that was not his partners’ choice;
    • if he were to be returned to New Zealand, he would ask his partner to accompany him with their son but he would not “let them suffer because of [his] stuff-up” and he would not expect her to do so;
    • initially his partner indicated that she would accompany him to New Zealand with their son but “that has now changed”;
    • his partner has a good job in Perth working as a payroll officer for a mining company, her parents are moving to Western Australia, and she does not want to leave Australia;
    • he has a good relationship with his son and he continues to have a good relationship with his partner.

THE EVIDENCE OF ALAN DAVID WILLIS

13. Alan David Willis (“Mr Willis”) confirmed that he had written a letter, dated 25 July 2011, in support of the applicant and that its contents are true and correct. That letter, which the applicant provided to the Tribunal with his Application for Review, states as follows:

“ I am the father of Kris Willis. I am currently living in NZ with my wife but we are moving to Perth in November 2011 where we will be working.
I write to advise you that I do understand what my son has done and why he was imprisoned.
During his time in prison we have talked on an almost weekly basis and from our conversations I believe that Kris does realise the seriousness of what he has done and the effect it has had on his family, his friends and his future prospects. I also think that he can still have a positive and productive future given the right guidance and assistance.
I feel that I can be a positive influence to Kris and I intend to be as strong and supportive as necessary to assist him to progress forward with his life and his family upon his release from prison.
Kris knows that I demand good standards of morals and ethics and I am sure he knows what I expect of him.
I will assist him in whatever way I can to achieve the level of behaviour that I and society expect and require of him.” (G1, p 4)

14. Mr Willis said that he moved to Perth from Christchurch, New Zealand on 19 October 2011 in order to be close to his son (the applicant) and his grandson and also because there was “no future” in Christchurch. He said that he intended to stay in Perth permanently.
15. Mr Willis acknowledged that he moved to Perth knowing that there was a “reasonable chance” that the applicant would be returned to New Zealand. He added, however, that his plans to move were “well under way” by the time he became aware of the possibility of the applicant’s visa being cancelled.
16. Mr Willis said that, if the applicant were returned to New Zealand, he would “probably not” visit him there because of “financial impediments” but would keep in contact with him.
17. Asked by the Tribunal to describe the state of his health, Mr Willis said that he has “severe emphysema, not helped by arthritis” but that he expected to have “a reasonable number of years left”. Asked whether he is “terminally ill”, he said that that would be “overstating it”.

ADDITIONAL MATERIAL RELIED ON BY THE APPLICANT

18. A letter from Brianna Smith, dated 25 July 2011, in support of the applicant was also provided to the Tribunal by the applicant with his Application for Review. That letter states as follows:

“ I am the Mother of Kris’ son, [M]. I am writing to advise you that I understand what Kris has done and why he is currently imprisoned.
We talk to him nearly every night, and from our conversations he seems to understand, now, why what he did was so unacceptable. I believe he understands the pressures this has put on himself, his family and friends. I think Kris, with the right guidance and assistance will continue to have a productive and positive influence in the community and at home with our son.
When he is released he will be living at the above address with me and our son. I will be here to offer any support and guidance that he requires from me. I believe that going forward [M] is going to have the biggest influence on keeping Kris focused on being a better person.” (G1, p 3)

19. The applicant tendered in evidence a Department of Corrective Services Individual Management Plan, dated 19 October 2011, which states as follows:

“ ...
2.3 Placement
Karnet
...
Comments: Remain minimum security in line with the Classification Review score, remain at Karnet Prison Farm.
Parole Decision Adjourned until 19/03/2012 for receipt of the completion report from the Intensive Sexual Offenders Treatment Program.
2.4 Prisoner Behaviour
Willis arrived at Karnet on the 12/05/2011 and has resided in Unit two since his arrival at Karnet. Unit Staff report that Willis is a quiet prisoner who does not come to their attention. He keeps his room and his personal hygiene to an acceptable standard, conforms to the unit regime and is always a respectful and polite prisoner who is not considered to be a management problem.
Willis commenced employment in the Mechanical Workshop on the 22/08/2011 on level 4 gratuities and he has worked his way up to level 2 gratuities. His instructor reports Willis to be a conscientious worker who is punctual, requires minimal supervision, has a high work ethic and completes all tasks allocated to him in a prompt manner. The instructor further reports that Willis is a respectful and courteous prisoner who interacts well with his fellow workers.
2.5 Outstanding Court Details
Willis has a Hearing before the Administrative Appeals Tribunal on 22/11/2011 at the Federal Court of Australia Perth.
2.6 Restricted Visits
Yes
3 Care and Well Being
3.1 Special Need Referrals
None
Comments: No referrals required.
3.2 Family/Community/Social Contact Issues
No
Comments: Willis receives monthly visits from his partner and son ... He makes good use of the prison phone system to ring family and friends but only writes the occasional letter. Willis states that his Father is moving over from Christchurch (NZ) and he hopes to receive regular visits from him.
4 Rehabilitation and Re-Integration
4.1 Main Intervention needs
Cognitive Skills, Education and Vocational Training, Sex Offending
Comments: Willis was assessed by Education and Treatment assessors with the following recommendations:
COG SKILLS: Willis has been advised that he has been assessed as suitable for the Sex Offender Think First Programme for which a booking is currently unavailable.
SEX OFFENDING: It is recommended that Willis participate in the Sex Offending Intensive Program. Currently participating – commencement Date 07/06/2011, Completion date 19/12/2011.
VOCATIONAL TRAINING: Willis is signed up for a Cert 2 Automotive traineeship which is due to be completed on 1/9/2012.
4.2 Specific Parole Issues
Formulate a viable parole plan 10 weeks prior to Parole Review 19/03/2012.
5 Reparation
5.1 What Industry/Vocational skills can the prisoner offer?
Prior to incarceration Willis was a Truck Driver and Tyre Fitter.
...” (Exhibit A2)

ANALYSIS

Application of the “character test”

20. By reason of the fact that the applicant was, on 19 October 2010, sentenced to the various terms of imprisonment set out in paragraph 5 above, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
21. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

Should the discretionary power to cancel the visa be exercised in this case?

22. Part B of Direction [41] comprises paragraphs 8 – 11. Paragraph 9 states:

“ (1) ... decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note: The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2) Decision-makers should only take into account directly relevant considerations.
...”
THE PRIMARY CONSIDERATIONS

23. Paragraph 10 sets out the primary considerations as follows:

“ 10. The primary considerations

(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
Protection of the Australian community

24. Paragraph 10.1 states:

“ 10.1 Protection of the Australian community

(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”

25. The objectives set out in Part 1, para 5 are as follows:

“ 5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

The seriousness and nature of the relevant conduct

26. Paragraph 10.1.1(1) states:

“ 10.1.1 The seriousness and nature of the conduct

(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”

Paragraph 10.1.1(2) lists (in subparas (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):

“ (b) all offences perpetrated against a child (particularly sexually-based offences);
(c) rape and any other sexually-based offences;”.

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

“ (3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including

(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.

(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
...”

27. The applicant’s criminal record in Australia consists solely of the 25 offences (set out in paragraph 4 above) in respect of which he was convicted and sentenced on 19 October 2010.
28. Twenty-three of those offences involved activities which the sentencing judge described as “internet sex” engaged in by the applicant with three persons, each of whom he believed to be a young girl – more specifically, a person he believed to be a 12-year-old girl in the case of 14 offences, another person he believed to be a 12-year-old girl in the case of 4 offences, and a person he believed to be a 13-year-old girl in the case of the other 5 offences. Those offences were committed by the applicant intermittently over a period of approximately 3½ months from 14 July 2009 to 28 October 2009 as follows: 8 offences over the period 14–31 July 2009, 7 offences over the period 3–26 August 2009, 3 offences over the period 1–22 September 2009, and 5 offences over the period 13–28 October 2009. While some offences were committed on the same day, in most cases there was a gap of 1–5 days between offences, the largest gap between offences being 21 days (see G9, pp 49–52). Those offences were described by the sentencing judge as “very serious offences”, the seriousness with which she regarded those offences being reflected in the immediate custodial sentences she imposed in respect of those offences (see paragraph 5 above).
29. As regards the offence of possessing child pornography, the seriousness with which the sentencing judge regarded that offence is reflected in the sentence of 15 months’ imprisonment which she thought was appropriate, although,` having regard to the “principle of totality”, she ultimately adjusted that sentence to a sentence of 6 months’ imprisonment.
30. The Tribunal also notes the following statement of the sentencing judge:

“ Now, engaging in Internet sex with children and the possession of child pornography gives rise to a very real need to protect the community, namely the children who would be real in (sic) victims of child Internet sex, and also those children who are abused, degraded and corrupted in the course of the production of child pornography. As I said before, it is not a victimless crime.” (G9, pp 70–71)

31. In the Tribunal’s opinion, having regard to:
    • the repugnant nature of the abovementioned 23 “internet sex” offences committed by the applicant against three separate supposed child victims of the age of 12 years and 13 years;
    • the fact that the applicant engaged in a continuing course of criminal conduct in committing those offences over a period of some 3½ months which ended when police officers from the Online Child Exploitation Squad intervened on 28 October 2009;
    • the repugnant nature of the offence of possessing child pornography committed by the applicant, comprising the possession of 42 video files collected by him over a period of 12 months since 2008;
    • the fact that the applicant voluntarily and deliberately engaged in the conduct constituting each of the abovementioned offences, knowing that conduct to be illegal;

the applicant’s conduct in committing those offences is a matter of great concern to the welfare and safety of members of the Australian community – in particular, children – and must be regarded as especially abhorrent to the Australian community. In short, that conduct involved very serious criminality for the purposes of para 10.1.1 of Direction [41].

The risk that the conduct may be repeated

32. Paragraph 10.1.2 of Direction [41] states:

“ 10.1.2 The risk that the conduct may be repeated
(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

33. As previously noted, the applicant’s total criminal history in Australia comprises:
    • the 23 “internet sex” offences which he committed in the period 14 July – 28 October 2009;
    • the offence of possessing child pornography on 28 October 2009 (which material he had been collecting over the previous 12 months); and
    • the offence of possessing an indecent or obscene article on 28 October 2009;

of which he was convicted on 19 October 2010.

34. As noted by the sentencing judge, the applicant also had two prior convictions in New Zealand, namely, a conviction for common assault in 2004 and a conviction for carelessly operating a vehicle in 2005. The applicant, furthermore, in his own evidence indicated that he had used cannabis when aged in his “early-to-mid-20s”, and that on one occasion in 2008 he had viewed child pornography on a friend’s computer.
35. In the course of her sentencing remarks on 19 October 2010 Schoombee DCJ referred extensively to the contents of a pre-sentence report, a psychological report and a psychiatric report regarding the applicant as follows:

“ ...
The author of the pre-sentence report has expressed the conclusion that although you lack insight into your offending, and have tried to minimise it to some degree, you have shown a keen interest in exploring why you offended and what you can do prevent further offending of this nature.
...
The author of the psychological report notes that it is well documented that you have suffered a significant brain injury as a result of the near drowning, and she understands that this has affected your mental processes to a significant degree. The biggest problem seems to be that you have poor impulse control, get frustrated easily, and find it difficult to control. (sic)
...
... The psychologist noted that you do seem to have a high interest in matters of a sexual nature and that you have diverse sexual interests.
She came to the conclusion that – or she said that you denied that you have any specific sexual interest in children, and she came to the conclusion that that may well be true. But because you have not taken full responsibility for your role as an adult against the young children in your offending, she is concerned that you might have crossed the boundary to physical touching if a child had agreed to do so.
...
She also came to the conclusion that you have some intensive treatment needs. She suggested that you should attend a sex offender program, that you should also obtain treatment for emotional management issues which would be most suitability undergone in private sessions, and she also suggests that you attend a positive parenting course.
She also applied that Static-99 test which measures the risk of re-offending, and came to the conclusion that you are in the medium to high risk category.
As far as the psychiatrist is concerned, he has come to the conclusion that it is to your credit that you have shown remorse, and you told the psychiatrist that you feel disgusted in yourself. However, you also said to the psychiatrist that you feel that this whole matter has been blown out of proportion, and the psychiatrist comes to the conclusion that this means that you don’t have enough insight into your offending.
...
He says that you told him that your interest in watching child pornography or talking on the Internet was really driven by your interest in female masturbation, rather than an interest in children and sexual interest in children as such.
...
The psychiatrist comes to the conclusion that the factors which contributed to your offending are your hyper sexual drive, a specific interest in female masturbation, a possible sexual interest in children, although he acknowledges that you deny that, but points out that you have previously viewed child pornographic images in New Zealand.
The psychiatrist also says that the social anxiety may have led to you feeling more comfortable on the Internet, and that may have been a factor in your offending. He’s also of the view that you should receive some treatment by attending a sex offender program. You would also benefit from alcohol counselling, and you should attend a program which helps you to improve your skills of coping with stressful situations.” (G9, pp 66–70)

Unfortunately, the abovementioned pre-sentence report, psychological report and psychiatric report themselves are not in evidence before the Tribunal.

36. Schoombee DCJ, in her sentencing remarks, also relevantly stated:

“ Now, Mr Willis, turning to the mitigating factors that apply in your case. You have pleaded guilty on the fast-track system, and that means that you have accepted responsibility for your offending, and that obviously shows remorse in itself.
...
I also note that your immediate reaction when confronted by the police was to admit to the offences, and you cooperated with the police by partaking in a video record of interview in which you made admissions. That again shows acceptance of responsibility and remorse.
I also take into account, as a mitigating factor, the finding by the psychologist that the effect of the near drowning on your mental processes is likely to have made a contribution to your limited understanding of the moral issues involved in talking to young girls about sex and in making use of the child pornography.
I also accept that your social anxiety contributed to you finding yourself in the situation where you sought sexual contact and comfort on the Internet. I note that you have shown remorse and have expressed a keen interest in exploring why you have offended, and then what you can do to prevent further offending of this nature.
...” (G9, p 70)

37. The Tribunal also notes the applicant’s:
    • expression of shame and deep remorse for his offending, in his statement of 22 October 2011 (Exhibit A1);
    • participation in an Intensive Sexual Offenders Treatment Program which commenced on 7 June 2011 and is scheduled to conclude on 19 December 2011 (Exhibit A2);
    • undertaking a Certificate 2 Automotive Traineeship which is due to be completed on 1 September 2012 (Exhibit A2);
    • good behaviour in prison (Exhibit A2).
38. Unfortunately, at the present time the applicant has not yet completed the Intensive Sex Offenders Treatment Program (the completion date being 19 December 2011) and, accordingly, the Tribunal does not have the benefit of considering a Completion Report regarding the applicant’s participation in that program. In this connection, the Tribunal notes that the Prisoners Review Board has delayed making a decision on the applicant’s parole until 19 March 2012 pending receipt of such Completion Report (Exhibit A2 – see paragraph 19 above). The Tribunal is, however, prepared to accept that the applicant, primarily by reason of his participation in the Intensive Sex offenders Treatment Program since June 2011, has commenced on the journey towards his rehabilitation. The Tribunal, on the other hand, is satisfied, having regard to the abovementioned references, in Schoombee DCJ’s sentencing remarks, to the psychological report and the psychiatric report, that the applicant requires intensive treatment, not only in respect of sex offending, but also in relation to emotional management and coping with stressful situations. Having regard to these considerations, the Tribunal cannot be satisfied that the applicant has achieved rehabilitation or has yet made significant progress towards rehabilitation.
39. The only independent and authoritative material before the Tribunal regarding the degree of risk of the applicant’s re-offending is the reference by Schoombee DCJ in her sentencing remarks to the application by the psychologist of the “Static−99” test which measures the risk of re-offending and her conclusion that the applicant was “in the medium to high risk category”. It may be that, by reason of the applicant’s participation in the Intensive Sex Offenders Treatment Program from 7June 2011 to date and the deterrent effect of his incarceration from 19 October 2010, the risk of his re-offending is presently somewhat lower than that previously assessed by the psychologist. The Tribunal, however, is unable, having regard to the evidence before it, to be satisfied, at the present time, that there is no risk, or even that there is a low risk, of his re-offending in a similar manner.
40. On the basis of the evidence before it, the Tribunal can only conclude, as submitted by the respondent, that there continues to be a real risk that the applicant will re-offend in a similar manner. Having regard to the abhorrent and serious nature of the applicant’s offending in Australia, in the Tribunal’s opinion the existence of a real risk of his re-offending in a similar manner would be unacceptable to the Australian community.

Conclusion regarding protection of the Australian community

41. Having regard to the abhorrence and seriousness of the applicant’s conduct in committing the relevant offences (as discussed in paragraphs 28–31 above), and to the Tribunal’s conclusion that there continues to be a real risk of the applicant’s re-offending in a similar manner – a risk which would be unacceptable to the Australian community – the Tribunal is of the opinion that this “primary consideration” weighs strongly in favour of cancellation of the visa.

Whether the person was a minor when they began living in Australia

42. Paragraph 10.2 of Direction [41] states:

“ 10.2 Whether the person was a minor when they began living in Australia
(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”

By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.

43. The applicant was 31 years old when he first arrived in Australia on 29 June 2008. The applicant was, therefore, not a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
44. Accordingly, this “primary consideration” does not assist the applicant’s case.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity

45. Paragraph 10.3(1) of Direction [41] states:

“ 10.3 The length of time that a person has been ordinarily resident
(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”

46. It is common ground that the applicant has been ordinarily resident in Australia from 29 June 2008 and that the date on which he first engaged in committing the abovementioned “internet sex” offences in Australia was 14 July 2009.
47. Having regard to the fact that the applicant was ordinarily resident in Australia for only one year and two weeks before he commenced to commit the relevant “internet sex” offences, and, indeed, was (by his own admission) collecting child pornography in Australia for about one year before that, in the Tribunal’s opinion, this “primary consideration” does not weigh in the applicant’s favour.

Relevant international obligations

48. Paragraph 10(1)(d) of Direction [41] refers to:

“ relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

49. Direction [41] relevantly states:

“ 10.4 International obligations
(1) Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
...
10.4.1 The best interests of the child
(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
...
(4) Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
...”

50. It is common ground that the applicant has a son who was born in Australia in December 2008 and who resides with his mother, Brianna Smith, in a suburb of Perth. Accordingly, pursuant to paras 10(1)(d)(i), 10.4(1) and 10.4.1(1) of Direction [41], the best interests of the applicant’s son is a “primary consideration” in this case.
51. There is no evidence before the Tribunal, and the respondent does not contend, that either of the factors referred to in subparas (a) and (b) of para 10.4.1(4) of Direction [41] is applicable in this case.
52. Paragraph 10.4.1(5) of Direction [41] lists (in subparas (a) – (o)) the factors which “are to be considered” in considering the best interests of the child. The Tribunal will specify, and comment upon, each of those factors below.

(a), (b) The nature and duration of the relationship between the child and the person

53. The applicant’s son was born in December 2008 and, as far as the Tribunal is aware, the applicant lived with Ms Smith and their son and played a full parental role until 19 October 2010 when he was taken into custody. While the applicant was incarcerated at Hakea Prison he was not permitted to have visits from his son but, from May 2011 when he was transferred to Karnet Prison Farm, he has had monthly visits from his son and Ms Smith. According to the applicant’s evidence (which the respondent does not dispute), he has spoken with his son on the telephone every night during his incarceration.

(c) The extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday

54. The Tribunal has no reason to doubt that the applicant, if allowed to remain in Australia, is likely to play a full parental role up to his son’s 18^th birthday. If, however, the applicant is returned to New Zealand, the extent to which he would be likely to play a full parental role will depend substantially on whether Ms Smith and their son accompany him to New Zealand.

(d), (e), (i) The child’s age, citizenship and time spent in Australia

55. The applicant’s son is approximately 2 years and 11 months old, is an Australian citizen, and has spent the whole of his life in Australia.

(f) The likely effect that any separation from the person would have on the child

56. Unfortunately, the Tribunal did not have the benefit of hearing evidence from Ms Smith who would presumably have been able to express an informed opinion on this matter. The Tribunal is, however, prepared to infer that the applicant has gradually been developing a good relationship with his infant son by means of nightly telephone conversations and monthly contact visits and that, if the applicant were separated from his son, the cessation of physical contact by reason of that separation would be likely to have some adverse emotional effect on his son. However, because the applicant has only been permitted monthly contact visits from his son since May 2011, the extent of any such adverse emotional effect would be far more limited than would be the case if the applicant was at liberty and in a position to play a full parental role in relation to his son.

(g) The existence of other persons who already fulfil a parental role in relation to the child

57. The Tribunal is not aware of any person, other than Ms Smith, who already fulfils a parental role in relation to the applicant’s son.

(h) The impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child

58. Given that the applicant had commenced to collect child pornography shortly before the birth of his son, and that his son was only about seven months old when the applicant commenced to commit the relevant “internet sex” offences, the applicant’s son would not have had any meaningful awareness of the applicant’s prior conduct. Accordingly, the Tribunal cannot be satisfied that the applicant’s prior conduct has had any direct impact on his son.

(j) Any Court orders relating to parental access and care arrangements

59. The Tribunal is unaware of the existence of any such Court orders in this case.

(i) Any known wishes expressed the child

60. There is no evidence before the Tribunal that the applicant’s son has expressed any relevant wishes.

(l) Whether the child is likely to accompany the person overseas in the event the person is removed from Australia

61. This matter depends entirely on whether Ms Smith is likely to accompany the applicant to New Zealand in the event that he is returned there. Although the applicant in his evidence intimated that Ms Smith (and their son) would be unlikely to accompany him because of her present employment, her parents’ expected move to Perth, and because she is happily settled in Perth and does not want to leave, he ultimately acknowledged that it would be “her decision”. Unfortunately (as previously mentioned), the Tribunal did not have the benefit of hearing evidence from Ms Smith herself and, accordingly, it is not in a position to express a properly informed opinion on this matter.

(m), (n), (o) The circumstances of the probable country of future residence, any language and/or cultural barriers

62. Assuming that the “probable country of future residence” is New Zealand, the Tribunal is not satisfied that the general circumstances, including educational facilities, health services and the social security system, in New Zealand are significantly different from those in Australia. Nor is the Tribunal satisfied that the applicant’s son would encounter any language or cultural barriers in New Zealand.

Conclusion regarding the best interests of the child

63. Having regard to the evidence and the considerations referred to in paragraphs 53–62 above, the Tribunal is not satisfied that it would be in the best interests of the applicant’s son if the visa was cancelled.
64. The Tribunal is prepared to accept (on the basis of the applicant’s evidence and in the absence of evidence from Ms Smith) that it is unlikely that Ms Smith and the applicant’s son would accompany the applicant to New Zealand. That being the case, the Tribunal is of the opinion that it would be in the best interests of the applicant’s son if the visa was not cancelled because he would then continue to be raised in Australia, living together with both of his parents, with each of them playing a full parental role. However, given the Tribunal’s abovementioned conclusion that there is a real risk that the applicant will re-offend in a similar manner, the Tribunal presently has reservations about the applicant’s capacity to be a good role model for his son.
65. In the Tribunal’s opinion this “primary consideration”, on balance, weighs against cancellation of the visa.

OTHER CONSIDERATIONS

66. Paragraph 11 of Direction [41] states:

“11. Other considerations
Note: These are not primary considerations.
(1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
...”

Paragraph 11(3) sets out (in subparas (a) – (g)) an inclusive list of “other considerations”. The Tribunal will specify, and comment upon, each of those “other considerations” below.

(a) Family ties, the nature and extent of any relationships

67. It is common ground that the applicant has been in a genuine de facto relationship with Ms Smith (who is a New Zealand citizen) since 2007. The Tribunal accepts that the removal of the applicant to New Zealand would be likely to severely disrupt his family ties in Australia because of the likelihood that Ms Smith and their son would not accompany him to New Zealand, and because his father has recently settled in Perth and would not return to New Zealand.

(b) The person’s age

68. The applicant is presently 34 years of age. The applicant’s age is not a significant consideration in this matter.

(c) The person’s health

69. Although the applicant informed the Department of Immigration and Citizenship (“Department”), in a Personal Details Form dated 23 March 2011 (G8, p 45), that he was “on prescription medication for depression”, he did not contend that his health was an issue in this matter. In any event, the Tribunal has no doubt that appropriate medication and treatment for his mental condition would be readily available to him in New Zealand.

(d) Links to the country to which the person would be removed

70. The applicant was born, raised, educated and employed in New Zealand and he lived there until June 2008 when he was 31 years old. His mother, sister and half-brother still live in New Zealand. The Tribunal is satisfied that the applicant retains substantial links to New Zealand.

(e) Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia

71. The Tribunal accepts that the applicant would suffer substantial emotional hardship if he were physically separated from his son and his partner, Ms Smith. Likewise, the Tribunal accepts that Ms Smith, and the applicant’s father who now resides in Perth, would be distressed if the applicant were removed to New Zealand.
72. The applicant asserted that he would have “no accommodation, no employment or employment prospects, no means of support from [his] family” in New Zealand, whereas he had good prospects of employment and a very supportive family network in Australia.
73. As regards the applicant’s employment prospects, the Tribunal does not accept that he would have no such prospects in New Zealand, given that he worked there as a tyre fitter and a truck driver as recently as 2008 and he has since acquired automotive mechanical skills while in prison. The Tribunal is, however, prepared to accept that his employment prospects and earning capacity would be less favourable in New Zealand than in Australia.
74. The Tribunal also accepts that the applicant presently has a much closer and stronger family support network in Australia than he would have in New Zealand. The applicant, however, would not be without family support in New Zealand, particularly from his mother if he was prepared to seek it from her.
75. The Tribunal accepts, furthermore, that the applicant’s prospects of rehabilitation would be less favourable in New Zealand than in Australia.

(f) Level of education

76. The applicant was educated up to secondary school level in New Zealand (G8, p 42) and he has been undertaking a Certificate 2 Automotive Traineeship in prison (Exhibit A2).

(g) Whether the person has been formally advised by the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act

77. It is common ground that, prior to his commission of the relevant offences in Australia, the applicant had not been formally advised by an officer of the Department about conduct that brought, or would bring, him within the provisions of the Act relating to visa refusal or cancellation on character grounds.

CONCLUSION

78. Having considered the applicable primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.
79. As regards the applicable primary considerations, the protection of the Australian community weighs strongly in favour of cancellation of the visa, the best interests of the child weighs against cancellation of the visa, whereas the period of residence in Australia before the commencement of criminal activity does not weigh against cancellation of the visa.
80. As regards the other considerations referred to in paragraphs 67–77 above, none of those considerations weighs in favour of cancellation of the visa, whereas, in the Tribunal’s opinion, some of those considerations weigh against cancellation of the visa, namely, the considerations relating to the disruption of the applicant’s family ties in Australia and the hardship likely to be experienced by the applicant and his immediate family members in Australia in the event of his removal to New Zealand, as discussed in paragraphs 67 and 71–75 above.
81. In the Tribunal’s opinion, the consideration which should be given the greatest weight in the circumstances of this case is the protection of the Australian community. The Tribunal has formed this opinion having regard to:
    • the Government’s objectives referred to in subparas (2) and (3) of para 5.1 of Direction [41] (set out in paragraph 25 above) – in particular, the objective of protecting the safety of Australian children from unacceptable risks of harm as a result of criminal activity by non-citizens;
    • the abhorrence and seriousness of the applicant’s conduct in committing 23 “internet sex” offences involving three persons he believed to be 12-year-old or 13-year-old girls;
    • the abhorrence and seriousness of the applicant’s conduct in committing the offence of possessing child pornography; and
    • the continued existence of a real risk that the applicant will re-offend in a similar manner – a risk which, in the Tribunal’s opinion would be unacceptable to the Australian community.
82. In the Tribunal’s assessment, the protection of the Australian community, which weighs strongly in favour of cancellation of the visa, clearly outweighs all other relevant considerations in this case which weigh against cancellation of the visa, namely:
    • the best interests of the applicant’s son; and
    • the other considerations discussed in paragraphs 67 and 71–75 above.

Although the best interests of the applicant’s son, being a “primary consideration”, is deserving of due weight, in the Tribunal’s opinion significantly less weight should be attached to that consideration in the circumstances of this case than to the protection of the Australian community. Likewise, the other considerations discussed in paragraphs 67 and 71–75 above, being considerations which “generally ... should be given less weight than that given to primary considerations” (para 11(2) of Direction [41]), are, in the Tribunal’s assessment, deserving of less weight than that given to the protection of the Australian community in the circumstances of this case.

83. The Tribunal concludes, therefore, that, having regard to the totality of the applicable “primary considerations” and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the visa. In the Tribunal’s opinion, the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.

DECISION

84. For the above reasons, the Tribunal affirms the decision under review.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ...............[sgd D Brodie]........................

Associate

Date of Hearing 22 November 2011

Date of Decision 2 December 2011

Representative of the Applicant Mr A Willis

Representative of the Applicant Mr A Gerrard

Australian Government Solicitor