Meaning of ‘child’ in s 501(6)(e)(i)

The Tribunal affirmed a decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant's visa.

The Federal Court (FCA) then said:

10 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

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

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

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

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

11 Section 501(6)(e) of the Act provides that a person does not pass the character test if a court in Australia or a foreign country has:

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

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction …

14 In concluding that the Applicant’s visa was subject to mandatory cancellation pursuant to s 501(3A) of the Act, the Tribunal stated as follows (T [23]–[24], citations omitted):

The transcript of the proceedings of the Magistrates Court of Victoria at Melbourne dated 7 June 2022, records that one of the Applicant’s sexual assault victims was aged 17, which constitutes sexually based offending involving a child (regardless of whether the offence itself has the age of the victim as one of its elements). The Tribunal is therefore satisfied that the Applicant has been convicted of a sexually based offence involving a child, and thus falls within s 501(6)(e)(i).

Given this, the Tribunal finds that the Applicant does not pass the character test and his Subclass 101 Child visa is subject to mandatory cancellation.

64 In its reasons, the Tribunal considered the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. This analysis included, amongst other things, an assessment of the likelihood of the Applicant engaging in such conduct. The Tribunal set out, at some length, the expert evidence and other evidence relevant to the risk of the Applicant reoffending. The identified risk factors included, but were not limited to, the Applicant returning to drinking heavily, which was an acknowledged factor in his past offending.

65 The Tribunal noted that “[d]rinking heavily is acknowledged by the Applicant, and the professionals who have interacted with him, to be a major cause of his offending in the past”. At T [105]–[106], the Tribunal concluded (bold emphasis added):

While the Tribunal acknowledges the sincere efforts made by the Applicant to seek treatment, his belief that he now has effective strategies to manage his drinking, and the stabilising factor of his current employment five days a week, it remains concerned that the Applicant has the potential to resume heavy drinking again (particularly given the stress of his uncertain immigration status and his limited support from family or friends), which would elevate his risk of reoffending beyond the moderate risk identified by Ms Bovenkerk in her February 2024 [report]. The Tribunal also gives weight to Ms Bovenkerk’s observation that this risk was heightened by alcohol use (not only by alcohol abuse) (Tribunal’s emphasis in italics).

The Tribunal considers that the Applicant is at moderate risk of reoffending and at higher risk of doing so if he resumes drinking heavily. The Tribunal gives this factor weight in favour of not revoking the cancellation of his Subclass 101 (Child) visa.

115 In considering the legal consequences for the Applicant of a decision not to revoke the cancellation of the Applicant’s visa, the Tribunal noted that:

(1) The Applicant cannot be removed to Zimbabwe because a protection finding was made for him with respect to Zimbabwe under s 197C of the Act (by virtue of the 15 May 2024 decision of the Tribunal, discussed at paragraph 3 above).

(2) The Applicant held a BVR, pursuant to which he had a right to reside in Australia.

(3) Pursuant to s 76AAA of the Act, a person’s BVR will cease if that person has permission to enter and reside in a foreign country and that country is a party to a third country reception arrangement with Australia (provided various other requirements are met — including, relevantly, the person not being subject to a protection finding in relation to that country). The Tribunal summarised the effect of s 76AAA as follows (T [135]):

This means that where a protection finding has been made in respect of a person for a particular country, and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country.

(4) The Applicant had expressed concern that he would be removed to a country such as Papua New Guinea where he knew no one and would have no support, or that he would be removed from a foreign country to Zimbabwe, notwithstanding the Tribunal’s 15 May 2024 protection finding.

(5) There was no evidence before the Tribunal as to what (if any) arrangements had been made with third party countries, or whether the Minister would seek permission for the Applicant to enter and reside in any other country.

116 The Tribunal ultimately concluded (at T [138], emphasis added):

Nevertheless, it is clear that it is the intention of the Australian government to enter into safe third country arrangements and to remove non-citizens with criminal convictions who fail the character test, including BVR holders, and the Applicant falls within this cohort. While it cannot be said that it is clear when or if the Applicant will be removed from Australia to a safe third country, it is now possible that he may be. The Applicant expressed considerable concern about this possibility, and the Tribunal accepts that if he were to be removed to a safe third country, he would have no family support (as his family is either in Australia, Zimbabwe, South Africa or the United Kingdom, none of which are likely to enter into safe third country arrangements with Australia), and that … he may not speak the language or have any obvious means to support himself (particularly since he has had a limited education and work history in Zimbabwe and Australia). It is also not known whether the Applicant, who is bisexual, might be removed to a country where being a member of the LGBTI community could expose him to discrimination or harm, although the Tribunal considers this to be unlikely as any third country would have to be assessed as ‘safe’ in order for the Applicant to be removed.

Some of the questions to the FCA were as follows:

Question 1: Does the expression “child” in s 501(6)(e)(i) mean a person under the age of 16?

Question 2: Does the expression “sexually based offences involving a child” in s 501(6)(e)(i) mean sexually based offending where the age of the victim is an element of the offence?

Question 3: Was it illogical to assess the Applicant’s risk of reoffending otherwise than on the assumption that the cancellation of his visa was revoked?

Question 4: If illogicality is established in a finding of fact made on the way to the ultimate decision, instead of illogicality in the ultimate decision itself, and the illogicality is not material by definition, is it only material if it was central (of being “critical” or “not immaterial”) to the ultimate decision?

Question 5: Where the Tribunal said that "any third country would have to be assessed as ‘safe’ in order for the Applicant to be removed", was it addressing the practical position insofar as the prospect of the Applicant being removed to an unsafe third country is concerned, instead of operating under a "misconception that the legislative regime restricted the Executive so that the Applicant, as a matter of the operation of the legislation, could only be removed to a “safe” third country"?

The FCA answered those questions as follows: