A violent African criminal who sexually abused a three-year-old boy has been spared deportation from Australia after a tribunal heard he would suffer “significant hardship” if forced to return to Zambia.
The child sex offender, 42, had his partner visa cancelled in May due to having almost 100 criminal convictions, but successfully appealed the decision at the Administrative Review Tribunal (ART) in Perth on Thursday, where he was anonymised as SNZZ for legal reasons.
ART General Member Fraser Robertson was able to overturn the visa cancellation thanks to immigration minister Tony Burke’s controversial Ministerial Direction 110, which has remained unchanged since 2024 despite it enabling hundreds of criminals to avoid deportation.
Direction 110 requires the tribunal to take into account community protection and expectations, family violence, ties to Australia, the best interests of minor children, legal consequences, impediments if removed, and impact on Australian business interests.
In June the ART relied on the direction to give a Nepalese child sex offender his visa back, and in May did the same for an African refugee who sexually abused his nine-year-old niece, because he would lose access to NDIS support for his intellectual disability if deported.
The tribunal heard last week that SNZZ came to Australia in 2004 to study nursing, and although he did not complete his course and was convicted of multiple crimes, he was not deported and was granted a partner visa sponsored by his then-wife in 2011.
He then became homeless for nine years after losing his licence due to a drink driving crash in 2014 and racked up 90 criminal convictions, but was repeatedly spared jail and did not spend a day in custody until his visa was cancelled.
In 2007 SNZZ was let off with a 12-month community-based order despite pleading guilty to two counts of indecent dealing with a child under 13.
In 2012 he was convicted of threats to injure, endanger or harm any person and of carrying an article with intent to cause fear for brandishing a machete and threatening to behead his ex-wife’s then-partner, but was given a suspended sentence.
Then in 2020 he was convicted of common assault in circumstances of aggravation for a domestic violence attack on a partner while he was drunk and she was sleeping, but was fined just $750.
Mr Robertson found that SNZZ failed the character test due to his offending, that the child sex offence was “serious”, and that the considerations of community protection, community expectations, and family violence all weighed in favour of visa cancellation.
But he wrote in his decision that because the child sex offence occurred more than 20 years earlier without repetition, and SNZZ’s risk of reoffending had been determined to be low for a sexual offence, the protection required by the community was “slight”.
Mr Robertson found that SNZZ would have difficulty accessing treatment for PTSD and alcoholism if deported to Zambia, where he has few connections, and that the strength, nature and duration of his ties to Australia were strong.
“The impediments [SNZZ] would face, in particular the absence of any support network and the difficulty of accessing appropriate treatment for his mental health and alcohol dependence, are significant,” he wrote.
Mr Robertson said the best interests of SNZZ’s children, four of whom are minors, also weighed against cancellation. The youngest, an 11-year-old girl, is in the care of child services and her father admitted not having a relationship with her and not knowing her surname.
The tribunal heard SNZZ had had limited contact with his children since 2012 due to his alcoholism and homelessness, and that in addition to the 11-year-old, two others are in foster care and one lives with his mother, but Mr Robertson said cancelling SNZZ’s visa would be “contrary to their best interests”.
“The considerations for cancellation are serious, but they are anchored in conduct that is now substantially historical and in a risk that is now low; the community’s protection does not presently require the applicant’s removal,” Mr Robertson concluded.
“The considerations against cancellation are current and substantial, concerning the wellbeing of four children to whom cancellation would cause real harm, a man deeply embedded in the Australian community after more than two decades, and significant hardship on return to a country to which he has no effective remaining connection.
“Weighing all of these matters together, and giving the protection of the community and the expectations of the community their proper primacy, I am satisfied that the considerations against cancellation outweigh those in favour, and that the discretion should not be exercised to cancel the applicant’s visa.”
Other immigrant criminals who have been allowed to stay in Australia this year due to similar ART rulings under Direction 110 include a Chinese wife-killer, an Ethiopian rapist, an obese homosexual Indian paedophile, an Iranian drug smuggler, a killer Sri Lankan driver, and a Sudanese refugee who was jailed over the fatal stabbing of an Australian teenager.
Mr Burke has the ministerial power to personally cancel visas, a decision which cannot be challenged at the ART, and has done so multiple times since November for political reasons, resulting in the deportation of South African civil engineer Matthew Gruter for attending a peaceful police-approved protest, and the detention of Ukrainian refugee Yan Zakharin for his alleged role in an incident at Camp Sovereignty in Melbourne.
Header image: Tony Burke (Facebook).
