1827326 (Migration)

[2018] AATA 4835

1827326 (Migration) [2018] AATA 4835 (12 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827326

MEMBER:Denis Dragovic

DATE:12 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 12 October 2018 at 3:04pm

CATCHWORDS
MIGRATION – Cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the good order of Australian community – the term of “good order” – capacity to stand trial – possession of child material – amount of material – reason of offence – past accusations of child sex offences – contribution to market of child abuse – correlation of offences – applicant’s mental state – dementia – support letters – bail conditions – impact of detention – best interests of children – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 116

CASES

ATR15 v Minister for Immigration & Anor [2016] FCCA 1089
Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624
Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant had been charged with ‘Possession of child exploitation material, contrary to [the legislation]’. The delegate made the connection between the charge and the relevant section’s power to cancel the visa under the condition that ‘the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community,’ by arguing that the possession of such material has led the applicant to contribute to the physical abuse of children by creating a market for such material. Furthermore, the delegate added that if he is allowed to remain in Australia the applicant might obtain such material thereby adding to the market and in turn exploitation of children. In addition the delegate found that the applicant ‘may progress’ to commit child sexual abuse.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the] (daughter), [(family friend)], [another] (daughter) and [another] (family friend).

5. Correspondence was entered into with the representative regarding the applicant’s capacity to present arguments before the Tribunal. The representative submitted a report from [a professor] from the University  [regarding] his competency to stand trial. In a separate letter specific for the purposes of the migration review [the professor] affirms his view that the applicant ‘is unfit to stand trial as related in my previous report.’

6. The applicant, through the representative, was asked prior to the hearing whether he wanted to proceed with the hearing to which the Tribunal received a positive response. As such the hearing proceeded.

7. At the hearing I asked the following questions and received answers as marked:

   Is it your preference to proceed with this hearing? Yes

   Do you feel like you have understood everything that I have said so far? Yes

   Are you on any medication? No.

   I understand that you have dementia. If at any stage you don’t recall what happened, please let me know that you don’t recall. Ok.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i), which reads:

   (e)   the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or …

10. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. The government’s policy guidance document on how to proceed with cancellation of cases under s.116(1)(e)(i) of the Act are worth repeating in this instance even if they serve only as guidance:

    Delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community (or the health or safety of an individual(s)).

    …

    A charge, of itself, may not be sufficient to support the requisite satisfaction required by s116(1)(e). Generally, delegates need to consider additional contextual information when deciding whether the existence of the charges justifies an inference that the visa holder engaged in the conduct charged.

12. The record of decision of whether to cancel the applicant’s visa under s.116 of the Act refers to the statement of material facts upon which [Australian] Police laid their charges against the applicant. This statement is said to have listed the applicant as being in possession of a USB which contained images and videos of children aged between approximately 3 and 15 years. Using the Child Exploitation Material Sentencing Classification Scheme the contents of the USB were categorised as follows:

    a.Category 1 (depicting children under the age of 16 years in sexual or indecent photographs either naked or semi-naked) – over 200 images and 2 videos

    b.Category 2 (depicting children under the age of 16 years engaged in sexual activity with other children) – 3 images and 2 videos

    c.Category 3 (depicting children under the age of 16 years engaged in non-penetrative sexual activity with adults) – 13 images and 2 videos

    d.Category 4 (depicting children under the age of 16 years engaged in penetrative sexual activity with adults) – 12 images and 6 videos. The children ranged from 3 to 12 years.

13. The applicant does not dispute that he was in possession of the material. Instead, he explained that he had heard about children being neglected by their parents. He heard that 68% of those children were abused. He recalled watching a program in [his home country] where citizens organised sting operations against others. So he decided to search online to try to find child abusers. He found many pictures and downloaded some of them onto a USB with the intention of providing them as evidence to the police. This was happening over a period of between several days and a month about 12–18 months before he was arrested. He stopped because issues arose with his daughter which distracted him. He claims that he intentionally tried to gather together photos and images that were exceptionally naughty. In proceeding with this plan to pursue the criminals he did not tell anyone. He claims that he has a friend in the police force whom he had planned to speak to once he had the evidence.

14. He didn’t get the chance to present the evidence to the police as he was distracted by family matters including his daughter’s divorce. When the divorce came through it gave him space to think about what he was going to do about the files. According to the applicant he decided to destroy the material. He claims that he took the dog out for a walk and was intent upon destroying the USB but that very morning upon his return just as he walked into the house there was a knock on the door and the police were there.

15. A search was conducted and the applicant was found to be in possession of a USB. He claims that the form the police completed suggested that the USB was left on the bed but he claims that he gave it to them when they came through the door.

16. There is no dispute over the possession of child pornography. The applicant, though, claims that he was doing it for altruistic purposes. He referenced his past support of children through charities, a fact that is supported by submissions that include acknowledgements for his donations to charities dealing with children and a children’s social club. The applicant said that he realised that he had been an idiot in how he went about it.

17. I asked the applicant whether he had previously been investigated, charged or convicted of any child sex offences. He responded that he had not. I asked the applicant why he was no longer in communication with his son who lives in [Country 1]. He responded that it was for reasons related to [some issue] while he had been working for his son.

18. I noted to the applicant that there was a s.375A certificate and explained what that meant. I found that the certificate was a valid certificate as I found that it would not be in the public interest to release the documents, but nevertheless, I provided a summary of what the documents contained and requested that he provide his comments. The material behind the certificate was adverse to the applicant but it was also of a nature of unproven allegations. As such I put to the applicant that there was information before the Tribunal that he had been previously accused and investigated by the police relating to child sex offences in [Country 1]. I put to him that in 2007 he was subject to a police investigation. He acknowledged that it was true. I put to him that I had asked him earlier whether there had been any assertions in the past against him about child sex offences to which he had replied that there hadn’t been. The applicant claimed that he hadn’t heard the Tribunal ask the question. He then changed his response and said that he thought that it had been behind him and so he didn’t disclose it. I further put to him that he had not fully been transparent about why he wasn’t on speaking terms with his son. I noted that the 2007 incident was related to his alleged ‘low level sexual assault’ upon his granddaughter. His representative conveyed to the Tribunal that he had been instructed that the only form of sexual assault was when the granddaughter would fall down stairs and the applicant would catch her and there being in the process an incidental touch. He said that he had forgotten about the charges and that in his mind the reason for the falling out was related to the wages as he had explained. I put to the applicant that this seriously questioned his credibility. He then claimed that he doesn’t remember answering those questions and claimed that he wasn’t listening. I provided the applicant with an opportunity for an adjournment to give him an opportunity to consider his answers.

19. Following the resumption of the hearing and the applicant’s acknowledgement of the information as true I introduced the same material under s.424AA of the Act and provided the applicant with an opportunity to respond. I put to him that the material suggests that there was a pattern of behaviour and secondly that it questioned his credibility.

20. The applicant requested that his daughter leave the room. The daughter left the room. He then subsequently provided another explanation in contradiction to his earlier responses. He claimed that his daughter (who had been in the hearing room) had a fiancé and they were staying with his son at the time of the accusations. He said that it was his daughter’s fiancé who was committing the indecent assault. He claimed that he hadn’t answered the question honestly because his daughter was there. I put to him that the question was whether he had ever been accused or investigated and that such a question could have been answered honestly even with his daughter in the room. As such I said to him that it didn’t respond to my concerns over his honesty. As to his claim that it wasn’t him I said that I found it hard to believe as there was no mention of his claim that it was the fiancé in any of the documents I had before me. He said that he hadn’t raised it with the police because his daughter was going to marry him in three months’ time, as such he was willing to allow the accusations to stand against him but he was not concerned about them as he knew that there was no evidence. I find this to be very unlikely. He is claiming that he had known of what was happening to the grandchildren, did nothing, took the blame and social opprobrium of being accused and investigated of being a paedophile and lost his relationship with his only son simply because he didn’t want to disrupt his daughter’s forthcoming marriage.

21. It is disconcerting that the applicant would lie to the Tribunal about his relationship with his son and regarding any past accusations of indecent behaviour towards children. I find that his response to the circumstances to be questionable on the face of the claims for the reasons discussed above and that his excuse was never mentioned to the police, even confidentially. For these reasons I do not accept his explanation of the [home country’s] accusations and instead find that there is sufficient reason to suspect that he was involved in some degree of indecent behaviour towards his grandchildren.

22. I will now proceed to consider whether there are grounds for cancellations, specifically whether the applicant’s presence is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. There are two possibilities which the Minister’s delegate identified and I will consider. They are firstly that the downloading of the material creates a market for the physical abuse of children and secondly, that there is a correlation between people who view child pornography and those who commit child abuse.

23. In considering whether the applicant will be a risk to the health, safety or good order of the Australian community by creating a market for the material I note that irrespective of where the applicant resides if his interest persists he will continue to contribute to the market. To make the ‘logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community’ there must be some basis upon which to argue that his alleged preference for child pornography would impact less upon the Australian community or a segment of such community was he off-shore. To argue that his interest in child pornography is contributing to a market of child abuse and therefore poses a risk to the safety of children in Australia would require evidence that his searches were focused upon Australian children. There is no such evidence. It may be the case that was he to be deported to the [home country] he could focus his searches on Australian children despite not having done so while here. In such a case his deportation would have increased the risk to the Australian community. As such I do not accept that there are grounds for cancellation for the reason of his internet searches contributing to the market of child abuse such that it puts the safety of a segment of the Australian community at risk.

24. I have also considered the other element upon which the Minister’s delegate cancelled the visa, namely a linkage between viewing child exploitation material and committing child exploitation material (CEM) offences. Problematically, in this instance, the delegate did not distinguish between correlation and causation. While the report cited by the delegate notes that 22 per cent of those arrested for CEM offences in the US were also charged with child sexual abuse (correlation) the report also said that ‘there is no evidence to support a direct causal link between viewing CEM and committing hands-on sex offences’. Correlation simply indicates that both elements occurred. It does not indicate whether one element influences the other. Without a causal link there can be no basis upon which to draw a logical or rational link to how the presence of the applicant is or may pose a risk to the health, safety or good order of the Australian community as advised by the government’s own Procedures Advice Manual (quoted above). As such I do not accept that there are grounds for cancellation for the reason that his interest in child pornography ‘may progress’ to committing child sexual abuse.

25. I have also considered the [accusations] from 2007 for which I found there to be sufficient reason to suspect that he was involved in some degree of indecent behaviour towards his grandchildren. But I note that he now has dementia, a bail order preventing him from accessing the internet and supervising children and that his daughters are supportive and conscious of the situation. The clinical psychologist assessed that, ‘Whatever the legal outcome of the criminal matter I cannot see [the applicant] moving into actual physical abuse of children at his age and state of brain function.’ Taking these elements into consideration I do not accept that there are grounds for cancellation based upon the reasoning that his past behaviour indicates that he is or may pose a risk of committing child sexual abuse.

26. Having considered in the preceding paragraphs how the applicant may be a risk to the health and safety of the Australian community and finding that he is not a risk, I now turn my mind to the concept of ‘good order’ in s.116(1)(e) of the Act. There is limited guidance on the meaning of this term. A foundation for the subsequent approach taken by the courts came through Tien v Minister for Immigration and Multicultural Affairs[1] and Newall v Minister for Immigration and Multicultural Affairs.[2] Despite the different circumstances in Tien, a case where the applicant’s visa was cancelled following the discovery of false documents on a travelling companion who was involved in the illegal entry of non-citizens into Australia, the decision’s engagement with the term ‘good order’ is a useful starting point. Goldberg J said at pages 93–94:

    The expression “good order of the Australian community” is not defined in the Act. 1 was not referred to any judicial consideration of this particular expression. It must be construed in the context in which it appears, that is, juxtaposed to the words “the health, safety” of the Australian community. In that context it has, in my opinion, a public order element, that is to say it requires there to be an element of a risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities.

    [1] Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 159 ALR 405

    [2] Newall v Minister for Immigration and Multicultural Affairs  [1999] FCA 1624

27. I note that Goldberg J outlines the concept as having an element of risk through the person’s presence in Australia and the possibility that it ‘might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.’ In Newall the situation involved an applicant who had been convicted as an accessory to murder. In that case Branson J noted:

    [B]ased on the risk of an adverse reaction by certain members of the Australian society to his presence in this country based on the circumstances referred to above, rather than on concern about the likely or possible conduct of the applicant in Australia.

1. In both Tien and Newall there is a recognition that the risk not only arises from the person’s conduct but also from the adverse reaction by certain members of the Australian public. It could be for reasons of disruption to the values, balance and equilibrium of Australian society.

2. In the case of the applicant being considered here I note that he has been charged and has admitted to the Tribunal that he has been in possession of what I would describe as an extensive electronic child pornography collection. The collection had over 200 images which included 12 images and 6 videos that were identified as Category 4 (CEM Sentencing Classification Scheme) representing particularly serious images and videos.

3. In ATR15 v Minister for Immigration & Anor[3] in which the applicant, a refugee awaiting further processing of his visa application in frustration made the following threats, “I hate Australian’s [sic] and I want to join ISIS the Islamic States group and kill Australian’s [sic]” and “if I see Tony Abbott somewhere I will kill him”. In that case Harland J noted:

   58. It is not difficult particularly in light of recent world events and the Lindt café enquiry that if the Australian public were to be aware of the threats the applicant uttered that in some quarters there would be unrest and a risk to safety and good order of the Australian community. It is not all sections of the Australian community. Some may well be swayed by the applicant’s personal circumstances, including his refugee status, his distress and mental health, others would not. One only has to look at media reports in the recent times (reasonable or not) to imagine how sections of the public would react. It is important to note that there is no suggestion in the section 116(1)(e) itself (as it then was) nor in either of the Federal Court decisions that reasonableness factors into this consideration. It does not refer to a reasonable member of the public.

   [3] ATR15 v Minister for Immigration & Anor [2016] FCCA 1089 (20 May 2016)

4. I find that paedophilia and associated offences such as accessing child pornography are of a type that creates unrest among the population. I would say that such a generalisation could be applied to a larger section of society than would feel unrest from the situation of the case before Harland J. It is certainly not only in certain media outlets or small groups but something that could be said, to use Goldberg J’s words, ‘might create difficulties or public disruption in relation to the values…of Australian society.’

5. Similarly to ATR15 some may be swayed by the applicant’s circumstances. He has dementia, his daughters are supportive and one in particular with whom he lives has, prior to his detention, cut off his internet access. I acknowledge that the clinical psychologist assessed that, ‘Whatever the legal outcome of the criminal matter I cannot see [the applicant] moving into actual physical abuse of children at his age and state of brain function.’ In these circumstances it could be argued that the applicant’s risk to society in such a circumstance is less than what amounts to ‘is or may be’.

6. I have also considered the possibility that the applicant’s dementia influenced his ability to reason through his motivation in accessing the child pornography. Considering that my reasoning has taken a course that focuses upon the public disruption that the applicant’s release into the community would have I now consider whether the segment of the community who would be concerned by the decision to release the applicant into the community would accept as a mitigating factor his dementia which is reported to have set in at around the same time. I note the clinical psychologist’s report from [September] 2018 states:

   [The applicant] told me that he had found the child porn sites more or less by accident, that he was appalled by them and handed them to police at the first opportunity. It is not my task, of course, to consider the truth or otherwise of his statement with the possible exception that could have been related to his dementia. I would have to say that the number of images outlined in the statement of material facts would weaken his assertion.

7. Considering that I found the applicant’s narrative of the circumstances surrounding his accessing of the child pornography to be unconvincing and that the psychologist’s report adds weight to a view that the extent of images and videos is such as to add doubt to dementia playing a role I find that the segment of the community who would be concerned by his release would not be swayed by his dementia.

8. When considering ‘good order’ and the opprobrium in which any child sexual offences are held within the community and considering the outcry that would arise if the government were to provide a visa allowing someone who has confessed to accessing serious child pornography into the community I am satisfied that the ground for cancellation in s.116(1)(e) of the Act exists as described above. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

9. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   Witnesses

10. Support letters were received by the Department from several people. In each case they also appeared before the Tribunal via telephone to provide evidence. The statements are positive in their views of the applicant’s character, note that he contributes to the community, express surprise at the charges but emphasise the beneficial role he plays in the family.

11. The applicant’s daughter who lives in [the city] provided evidence to the Tribunal. She said that she comes to [another city] as regularly as she can but has been stymied recently due to her new job. She mentioned the investigation against her father in the UK unprompted. She also noted that his mental deterioration has been noticeable and that he requires being looked after. She said that was he to return to the [home country] it would affect her very much. With her mother dying when she was [age] he had always been there for her and that the current situation is very upsetting.

12. A family friend whose children go to school with the applicant’s grandchildren and has known him for eight years said that he provides support to the applicant’s daughter as the sole parent of three children and was of great help as she went through her [medical] ordeal. She said that he has more support in Australia and that she is aware of the charges, isn’t glossing over them, but knows what type of person he is. She noted that they have gone on family holidays together and have spent a considerable amount of time in each other’s company and that she hasn’t had any reason for concern about his behaviour nor heard anything from her children.

13. A friend of the applicant’s for over 25 years provided evidence to the Tribunal. He has known the applicant since he worked for him in [Country 1]. He counts the applicant as a colleague, friend and mentor. He sees him as a decent human being. He said that the applicant is a family man and has done everything to support his daughter. He has seen a marked deterioration in the applicant’s mental health.

14. The applicant’s daughter with whom he has been living provided evidence. She said that he played an important role in the lives of her children. Their father was abusive and not a good role model and her father was able to be a positive male role model in their lives (emotional regulation, kindness and generosity). She said that he has qualities that she hopes her children will show when they grow up. In the future as her father’s dementia affects him more she acknowledged that it will be difficult for her to provide support but the children don’t have another grandparent. She said that she wouldn’t have gotten through the past four years without her father. She explained that her ex-partner sees the two youngest children but that the eldest refuses to see him. She believes that the second oldest will similarly soon not want to see his father and as a result she will have full-time responsibility for all three children.

15. A friend of the applicant’s daughter provided a support letter. She was listed as a witness but was unavailable. Following the hearing and with the permission of the applicant I contacted her again. She provided evidence in line with her statement with the addition that she has left her children alone with the applicant in other rooms of the house while at events with the applicant’s family. She has never seen any behaviour that has raised her concerns. She noted that he is a rock to his daughter and his detention would be difficult for her as he is the only family that she has. In her statement she explains that she is a qualified [profession]. She has known the applicant’s daughter’s family for 12 years. She has known the applicant socially and is comfortable with the applicant interacting with her children.

    Considerations

16. I have considered the purpose of the applicant’s travel and stay in Australia and in particular whether the applicant has a compelling need to travel to or remain in Australia. The applicant was living on the [island] when his daughter began cancer treatment and was separating from her then husband while retaining primary responsibility for their three children. She needed the support that he provided. He had previously been coming to Australia for a period of 10 years to visit but in this instance he remained as his daughter’s circumstances required help. The applicant then applied for an Aged Parent visa. It was put to the Tribunal that she is still going through an acrimonious break-up.

17. I note that the applicant has complied with his visa conditions in all other instances. I give this little weight against cancelling the visa for the reason that it is a minimum expectation of visa holders to meet their conditions.

18. In considering the degree of hardship that may be caused to the applicant and any family members by the cancellation of the visa, I first review the circumstances he will face. The current cancellation is of a Class WA Bridging Visa A. It was cancelled on 12 September 2018. The applicant then applied for a Bridging Visa E. This visa application was refused and he was subsequently placed into detention. He is currently awaiting trial. If the Tribunal is to affirm the Bridging Visa cancellation then depending upon the court outcome he will either be granted a criminal justice visa to serve his time in prison or if there is a positive court outcome the applicant will be in a position to apply for a prescribed visa as per s.48 of the Act which includes a new bridging visa until his substantive visa application is completed. Either way this visa cancellation review does not have the consequence of removing him from Australia.

19. I note that it will be psychologically challenging for the applicant’s daughters and his grandchildren to be absent from him for the duration of his detention until his criminal matter is settled. It was put to the Tribunal that he would miss them and his friends. The applicant’s daughter with whom he resides in [a city] claims to be dependent upon the support that the applicant provides. She explained that he played an important role with child care, estimating at least 30–40 hours a week. Prior to his dementia the children would walk with their grandfather to school and he would drop them off in a car to sports. With the onset of his dementia the applicant no longer drives the children and since being charged his bail conditions have not allowed him to supervise children. As a result in the short period prior to his detention the children would walk to the sports grounds after school. The applicant’s daughter would ask the applicant to pop out to the shops when necessary. She believes that her father has the capacity in the future to play the supervisory role as he could call her or 000 if there was an emergency. This gives her the flexibility if she wants to go to the shops and organise what she needs to do including to work as she has a large mortgage to deal with.

20. I note that the bail order for the applicant requires him:

    Not to have any unsupervised access to children under 16 years old; Not to leave or attempt to leave [the state]; Not to access the internet or any online service except as required for banking, employment and/or seeking legal advice (including by third party); Not to use any social media websites or applications; To reside at [address].

21. Overall, in considering the level of hardship cancellation of the visa would mean, I acknowledge that the applicant and the family will be negatively affected in the near term, the separation will be difficult for the children, their mother and the applicant, but I also note that the material impact will be lessened as the applicant has been limited in his ability to provide support as a result of his dementia. His bail orders further limit the level of support that he can provide. Based upon this assessment I place moderate weight against cancelling the visa.

22. As for the circumstances in which the cancellation arose the applicant provided his narrative as discussed earlier in this decision. The applicant remained steadfast in his claim that he was planning to hand over the material to police once he had undertaken his investigations. I find that the applicant’s claims of an altruistic endeavour to be undermined by his withholding of the truth from the Tribunal and the content of the material that was put to him. The applicant was not honest about prior accusations against him. He was not honest about the falling out with his son. I find it implausible that the applicant could have collated hundreds of child pornography images with the intention of submitting it to the police but not doing so for a period of between 12 and 18 months and only deciding to destroy the material the very morning that the police arrive at his door step. Though, extenuating circumstances were given as reasons for the lapse in judgement. The applicant’s dementia is said to have started around the same time as the applicant claims that he began downloading the explicit material. Was his behaviour limited to a few accidental deviations from adult porn to child porn I could accept that it was his dementia which played a role, but just as his psychologist noted, as referenced above, considering the large number of files downloaded and in my opinion the period across which he was accessing them as reported to the Tribunal and the serious nature of the child pornography I find undermines any claims of the beginning of dementia leading to these lapses of judgement. In considering the circumstances in which the cancellation arose I give considerable weight in favour of cancelling the visa on this consideration.

23. The applicant’s past and present behaviour towards the Department has been unblemished, a fact which would be expected for any visa holder and as such I place little weight against cancelling his visa.

24. There are no possible consequential cancellations were his current visa to be cancelled.

25. I discussed with the applicant and his legal representative my view that he does not face indefinite detention and instead that he faces detention for a period of length that would see the criminal proceedings completed. The representative raised with the Tribunal that the medical facility staff had allegedly raised concerns over his continued detention claiming that it would be deleterious to his health. I accept that the applicant’s medical situation would deteriorate in detention and I further accept that it is possible that it would deteriorate at a more rapid rate in detention than were he home. Nevertheless, within detention the applicant has access to medical specialists. Without any evidence of the relative rate of deterioration I give some weight against cancelling the visa for reasons of the impact detention will have on the applicant’s health.

26. In considering Australia’s international obligations I note that a cancellation will not lead to the applicant being deported and as such I do not identify any non-refoulement concerns. I do note the question of the primary interests of the child which arises from Australia being a signatory of the Convention on the Rights of the Child. In this instance the interests of the child are represented in the three grandchildren with whom the applicant was living prior to his detention. There are three children, aged [age], [age] and [age]. I have considered the impact cancellation would have on them earlier when considering the level of hardship that the family would face. I acknowledged then and repeat now that the applicant’s detention will lead to a negative impact upon the family including the children. But I also note that the children are able to walk to the sports ground and continue their lives albeit more constrained with only the single parent able to provide support and care. As such I place little weight against cancelling the visa for the reason of the best interests of the child.

27. In conclusion, this is a difficult case for the reason that many witnesses testified to the applicant’s positive role in society and in the case of his daughter, to the positive role her father plays in her children’s lives. It is clear from the evidence provided that the applicant provides a much needed role to his daughter and their family who have gone through considerable pain in the past. I appreciate the apprehension of the applicant’s daughter who will be alone raising three children. I accept that she wants her father to be available. But I also note that the bail conditions imposed upon the applicant are strict and do not allow any unsupervised access to children under 16 years of age. This reduces the scope of support that the applicant can provide to his daughter and her family in addition to the limitation arising from his dementia. Adding to the complexity of this case is the applicant’s deteriorating mental health and the role it played in the transgression which is something I have given very little weight to as the number of CEM downloads severely questioned the possibility of a momentary lapse in judgement. He lied to the Tribunal and I was not convinced of the reasons he gave for lying. That he lied about a matter so similar to the circumstances that he finds himself in today is troubling. Overall in considering the discretionary elements I find that the weight in favour of cancelling the visa outweighs the elements against. As such the Tribunal concludes that the visa should be cancelled.

    DECISION

28. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Denis Dragovic
    Senior Member