Sex offender’s visa cancellation overturned in ‘best interests’ of his kids

A New Zealand-born man sentenced to three years imprisonment for non-consensual sexual touching and recording an intimate image without consent will be allowed to stay in Australia, after his visa cancellation was revoked in the “best interests” of his children.

A string of recent decisions by the Administrative Appeals Tribunal to overturn visa cancellations based on criminals’ “ties to the community” has resulted in a firestorm for the Government, with the Coalition repeatedly calling for Immigration Minister Andrew Giles to be sacked.

A defiant Mr Giles last week announced he would replace “Direction 99” with “Direction 110”, instructing the tribunal to place community expectations as the highest priority.

While the latest decision is in line with Government Direction 90 that requires decision makers to give “primary” consideration to the best interests of minor children, it is set to add ammunition to the fire given at least ten cases under Direction 99 are still before the AAT.

In the latest decision, the man – who arrived in Australia about 2010 – was convicted and sentenced in October 2022 over two offences of intentionally recoding an intimate image without consent and two counts of sexual touching without consent over an incident in March 2021.

That ultimately led to him failing the character test and having his visa cancelled, although he also had a history of convictions for drink driving and damaging property – domestic violence.

In weighing up whether or not to revoke the visa cancellation, the tribunal ultimately found it was in the “best interests” of his three children that he not be deported.

In its judgment, the tribunal noted the man was “badly affected by drugs” when he got into a lift in Sydney where he found an intoxicated woman on the floor with her legs moving around in the air and her genitals nearly exposed.

He took out his mobile phone to video the woman, who the court found was in “no state to consent to being filmed”.

The man then took the woman outside and, while sitting on a ledge, “reached between her legs and touched her vagina for three or four seconds”.

“The woman brushed his hand away, but undeterred the Applicant held her down and touched her vagina again for a few seconds,” the tribunal noted.

“The woman sat up and the Applicant continued to touch her vagina whilst moving the G-string to the side. That touching was ‘skin to skin’ and continued for about 15 seconds.”

The man then put her in his car, went upstairs briefly and when he returned was met with police who arrested, and later charged him.

He served a non-parole period of two years and his visa was ultimately cancelled.

In its reasoning, the tribunal described that offending, combined with the drink driving and domestic violence charges as “very serious”.

It noted that although there could be psychological consequences to the woman caused by the applicant’s offending, there was no “physical harm” to her or anyone else impacted by his previous offences.

The tribunal said the likelihood of the man reoffending is “most likely in the mid-range of likelihoods, perhaps a little higher than that”, but he was not a violent person and suggested the applicant was dealing with his drug dependence.

It said community expectations weighed in favour of not revoking the visa cancellation, but that his family would “suffer financially and emotionally” if he was returned to New Zealand.

The tribunal ultimately found the man’s ties to Australia were sufficient enough to grant him leave to stay, noting it was in the “best interest” of his three children that he not be deported.

When Mr Giles was asked for a statement in regards to the latest decision, a government spokesperson said the incoming decision 110 would ensure community protection was paramount in further AAT considerations.

“The Government’s new Direction 110, which makes crystal clear that we expect the protection of the Australian community be given greater weight than other considerations, including the strength of a person’s ties to Australia,” the spokesperson said. “It is intended to ensure that all decision-makers adopt a common sense approach to visa decisions – consistent with the original intent of Ministerial Direction 99.”

Mr Giles has so far re-cancelled 40 visas revoked by the AAT.

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