Boyce and Minister for Home Affairs (Migration)

Boyce and Minister for Home Affairs (Migration) [2019] AATA 2218 (25 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2634
Re:Gregory Boyce
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:25 July 2019
Place:Sydney

The decision under review is affirmed.
...........................[sgd].............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non revocation of mandatory cancellation of Class TY, Subclass 444 Special Category (Temporary) visa – where Applicant failed to pass the character test – sentenced to 12 months’ imprisonment or more – whether there is another reason to revoke the mandatory cancellation of the subject visa – application of Ministerial Direction No 79 – application of the Primary and Other Considerations in Part C of Ministerial Direction No 79 – not another reason to revoke the mandatory cancellation of the subject visa – Decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
25 July 2019
INTRODUCTION AND BACKGROUND

Mr Gregory Boyce (“the Applicant”) is a 59 year old New Zealand citizen. Movement records indicate the Applicant was granted a Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”) upon his arrival into Australia in 1979.[1]
[1] Exhibit 3, s 501 G-Documents, G10, pages 80-87.
The Applicant has a criminal history in Australia which first came before lawful authority in September 2016. His offending is primarily oriented towards unlawful conduct in relation to the production, dissemination, possession and electronic carriage of child pornography material. He was dealt with for further offending for this type of conduct which also came before the sentencing courts in March 2017. In terms of sentencing regimes, this is what transpired at both abovementioned sentencing episodes:
·On 22 September 2016 at the Newcastle District Court, for the five counts of offending then before the Court:
othe Applicant received a head sentence of three years and three months for the totality of his offending;
oviewed another way, the Court saw fit to impose respective custodial terms for a cumulative period of eight years and three months for the five counts of offending;
·On 10 March 2017 at the Downing Centre District Court:
oFor the two offences then before the Court, the Applicant was sentenced to a cumulative custodial term of four years, with respective terms in custody of 12 months. For the first of those two offences, the Applicant was released after serving 12 months in actual custody upon entering into a recognisance in the sum of $500. For the second of those offences, the Court imposed a non-parole period with conditions commencing after his serving 12 months in actual custody.
While serving a term of imprisonment, a delegate of the Minister for Home Affairs (‘the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 9 August 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[2]
[2] Ibid, G2, page 11.
On 7 September 2018, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[3] The delegate of the Minister decided on 1 May 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[4]
[3] Ibid.
[4] Ibid, page 10.
The Applicant lodged an application with this Tribunal on 11 May 2019 seeking a review of the abovementioned decision dated 1 May 2019 not to revoke the cancellation of his visa.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[6]
[5] Ibid, G1, pages 1-6.
[6] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within 9 days after the day on which he or she received notification of the decision – see s 500(6B) of the Act. As the Applicant received the decision by hand on 2 May 2019 (as confirmed by the Respondent during the hearing in this matter – see ss 494A, 494B, 494C and 501G of the Act; r 5.02 of the Migration Regulations 1994 (Cth)), the 9^th day on which the Applicant must file the application for review falls on Saturday 11 May 2019. Pursuant to s 36(2) of the Acts Interpretation Act 1901 (Cth), if an Act allows for an Applicant to do something and the last day for doing the thing falls on a Saturday, a Sunday or a public holiday, the Applicant may do said thing on the next day that is not a Saturday, a Sunday or a public holiday. In this case, the last day for the Applicant to file the application for review with the Tribunal was Monday 13 May 2019.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] I will address each of these grounds in turn.
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
At the hearing, the Applicant’s representative helpfully conceded that his client did not pass the character test. The representative said:
“On the instruction it is not disputed by Mr Boyce that there was a failure. Okay, it’s a character test by virtue of his imprisonment for more than 12 months, so that’s not in contention. So therefore the matter then goes, okay, to the application of ministerial direction number 79 in relation to whether the discretion should be exercised in not cancelling his visa or a revocation of the visa cancellation.”[10]
[10] Transcript, 15 July 2019, page 4, lines 8-14.
In its written material, the Respondent noted “It is common ground that the Applicant does not satisfy the character test on the basis of his substantial criminal record (paragraphs 501(6)(a) and 501(7)(c) of the Act).”[11]
[11] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 3, paragraph [9].
For the purposes of the character test, there is no getting around the Applicant’s criminal history. More particularly, there is no getting around the totality of custodial sentences amounting to eight years and three months imposed in September 2016 and four years in March 2017. It should also be noted that the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[12]
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[14]
[13] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[14] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[15]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[16]
[15] [2018] FCA 594.
[16] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his National Police Certificate which appears in the material.[17] A useful and accurate summary of the Applicant’s offending history appears at paragraph [4] of the Respondent’s SFIC and there is no requirement to replicate that summary in these reasons.
[17] Exhibit 6, s 501 G-Documents, G15, pages 122-127.
The Nature and Seriousness of the Applicant’s Conduct to Date
As best as I understood the submissions, the Applicant’s representative approached the consideration of this Primary Consideration A on the basis that (1) he conceded that the Applicant’s offending conduct to date was of a very serious nature, and (2) that his submissions in relation to this Primary Consideration A were primarily orientated towards a favourable assessment (for the Applicant) regarding the second limb of this Primary Consideration A.
The following exchange occurred between the Tribunal and the Applicant’s representative during that representative’s opening summary of his client’s case:
“MR ZHAO[18]: Yes. So on instruction, the second limb of the Ministerial directions primary consideration’s not in dispute, and on instruction, the third limb of the primary consideration of the Ministerial direction 79, also not heavily pressed upon because it is accepted that the Australian community will take a rather conservative view in that a person convicted of the offences should have the visa cancellation heavily considered by the relevant authority. So therefore the instruction, the only ground that is really being presented by Mr Boyce today shall be the extent to which he is a threat to the Australian community.
SENIOR MEMBER: Which is the second limb of primary consideration (a).
MR ZHAO: I believe it should be the first one.
SENIOR MEMBER: The first limb of primary consideration (a) is the nature of what he’s done and whether it serious or very serious or not serious and then there’s the other issue of risk of reoffending, which is I suppose another way of saying danger to the community.
MR ZHAO: That’s correct, Senior Member, I apologise for that.
SENIOR MEMBER: That’s alright.”[19]
[my emphasis]
[18] Representative for the Applicant at the hearing.
[19] Transcript, page 5, lines 1-21.
I am of the view that the Applicant’s offending can be readily categorised as very serious. The nature of the offending is simply appalling and beyond rational explanation. While this first limb of Primary Consideration A was conceded on behalf of the Applicant, I feel compelled to record that the nature and seriousness of the Applicant’s offending weighs very heavily against revocation of the mandatory cancellation decision.
The Applicant’s involvement with the type of offending for which he was convicted was significantly extensive. The child exploitation material found in his possession involved some 21,322 depicted child victims, they being predominantly female with their ages ranging from infancy to 15 years of age. The offending involved an undeniable predisposition to the defilement of both the dignity and personal rights (as innocent children) of the victims.

As noted by the Newcastle District Court in its sentencing remarks, there was both an extraordinary amount of material located on the Applicant’s Seagate storage device while, at the same time, having an astonishing level of explicitness.
(a)Some 19,643 files that can be broadly referred to as “child pornography” were located on his device. This material featured penetrative sex with children, ranging from children in their infancy to children of 12 years of age. The depictions also involved the humiliation and torture of children in various forms, including but not limited to the depiction of children involved in urolagnic activity between themselves or with adults, as well as the participation of children is bestialic activity. This portion of the material included documentary material about child sex abuse and, perhaps most notably, “A Guide to Paedophilia and How to Practice Child Love.”;
(b)The material also included reference to child abuse pornography files downloaded from the internet. This material contained similar themes to the aforementioned 19,643 files;
(c)The material also disclosed some 1,004 outgoing transmissions (i.e. sent by the Applicant) about child pornography wherein he created his own narrative about sexual experiences with children ranging from 10-13 years of age. These transmissions also (1) had a narrative about the Applicant’s experience in having sex with his younger sister and her friend when he was aged 12 and (2) offered instructive advice to readers about how to have sex with children;
(d)Also found in his material was 68 outgoing transmissions of indecent and interactive communications between the Applicant and persons under 16 year of age. These communications repeated the narrative in the abovementioned 1,004 outgoing transmissions to the extent that the Applicant confirmed his preference for 5-12 year old girls. He also spoke of the physical proportions of his penis and its suitability for insertion into the vagina of a 10 and 13 year old child (a female). These communications also contained reference to him sending an image of his erect penis which, as no doubt intended, received a response.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
Factor (a) of paragraph 13.1.1(1) of the Direction provides that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously. There can be no question, and as conceded by the Applicant’s representative, that offending against children of the type perpetrated by the Applicant constitutes a “sexual crime” and, as such, must be viewed very seriously. While one is always cautious about categorising any type of offending in terms of its seriousness, it is difficult to conceive of sexual crimes against children of a worse nature than that for which the Applicant was convicted. Short of either actually depriving or participating in activity aimed at the deprivation of the lives of the children/victims, one cannot imagine worse offending in relation to children. There can be no other finding other than that this factor (a) squarely and with no valid rebuttal, militates in favour of a finding that the Applicant’s offending is of a very serious nature.
Factor (b) of paragraph 13.1.1(1) provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. While no submission to this effect was made, this Tribunal will not hear of any purported differentiation between “violent offending against children” and “sexual offending against children”. Penetrative anal sex with a child ranging in age from infancy to circa 13 years of age is a physically violent act. The violence is also represented by the perverse pleasure taken from the intentional defilement and humiliation of the helpless child victim. That too is “violent offending” of a sexual nature. The deliberate placement of innocent victims into harm’s way to derive pleasure from causing those innocent victims to engage in activity well before their time in life had come to do so, is also a violent act. Knowingly causing or promoting that sort of profanity to occur is, as well, a violent act. I apply factor (b) of paragraph 13.1.1(1) in favour of a finding that the Applicant’s conduct is of a very serious nature.
Factor (c) of paragraph 13.1.1(1) of the Direction refers to the principle that crimes committed against vulnerable members of the community are to be regarded as serious. I appreciate factor (a) relates to “violent and/or sexual crimes” and that factor (b) relates to “crimes of a violent nature against children”. Out of an abundance of caution and to leave no doubt, I regard children ranging in age from infancy to 13-15 years of age to be “vulnerable members of the community”. To my mind, this factor (c) can be readily applied in support of a finding that the Applicant’s offending in relation to those child victims has been very serious.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentences imposed by the Courts for a crime/s of the Applicant. As an initial observation, it should be noted that the imposition of a custodial term is most usually the final resort in the hierarchy of sentencing outcomes available to a sentencing judicial officer. Earlier in these reasons I have summarised the cumulative period of 12 years and three months of custodial time imposed on the Applicant as a result of his two sentencing episodes on 22 September 2016 and 10 March 2017. I will also note that he was sentenced to serve four years and three months in actual custody as a result of both sentencing episodes. Regardless of whether one looks at the cumulative period or the actual “time served”, there is no escaping the reality that the sentencing judicial officer who dealt with the Applicant regarded his offending to be of so serious a level of magnitude such as to warrant the imposition of multi-year custodial terms. It should also be noted that the same sentencing judicial officer regarded his offending as “objectively very serious.”[20]
[20] Exhibit 3, s 501 G Documents, G5, page 51.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. While the Applicant’s offending may not contain a demonstrable level of longitudinal history, his offending commences with five counts coming before the Newcastle District Court in September 2016. Notably, even with the imposition of a head custodial sentence of three years and three months (eight years and three months cumulatively), the sentencing for his offending does not cease. In March 2017, he is dealt with for virtually identical offending and that offending is punished by an “in-custody” custodial period of 12 months (four years cumulatively). While the Applicant’s offending has not been frequent over a long period of time, it was certainly frequent across the period leading up to his detection and sentencing in 2016 and is also reflected in his further sentencing in March 2017. While there is no demonstrable trend of increasing seriousness, it is difficult to argue with the proposition that his offending has been very serious from the outset.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending. One is almost thankful that there is no “cumulative effect” to be taken from the Applicant’s history due to its relatively short compass in terms of a longitudinal history. But this, to my mind, does not assist the Applicant. The cumulative effect of his offending is not to be found in a multiplicity of charges occurring across a 10-20 year period. It is to be found in his appalling conduct leading to his initial detection and sentencing in September 2016. It is also to be found in his further sentencing for virtually identical offending in March 2017. The cumulative effect of the Applicant’s offending is to be found in the totality of the material relating to all of his offending. Indeed, the cumulative effect of his offending is not yet fully known. It would be an extraordinary feat of resilience if none of the child-victims of the Applicant’s offending did note experience either periodic or life-long psychiatric trauma arising from their truly dreadful experiences as child victims of the very serious conduct perpetrated and propagated by offenders such as the Applicant.
I am of the view that factors (g), (h) or (i) of paragraph 13.1.1(1) of the Direction do not have application to the instant factual matrix and thus do not require consideration.
My understanding of the submissions of the Applicant’s representative regarding the concession of this first limb of Primary Consideration A also involved an abandonment of the previously propounded argument regarding the contribution apparently made by “head injuries” sustained by the Applicant between the ages of 13 and 54.[21] According to this argument, those head injuries somehow adversely affected the Applicant’s cognitive ability which, in turn, now serves to mitigate or otherwise explain his very serious offending. While there is some slight reference to this line of argument in various pre-sentence reports, the argument goes nowhere in light of findings made by the examining psychologist, Dr Lennings:
“…There is a strong suggestion that Mr Boyce may suffer from a neurological syndrome associated with his multiple and serious head injuries. Such a syndrome is likely to have impacted on his ability to plan behaviour, inhibit responses and remember the specifics of events and activities. However, Mr Boyce’s interest in child abuse material appears to have stemmed from events in his life when a young person, and whilst the impact of his neurological condition might have added to some disinhibition it is unlikely to be causative of the behaviour he is currently facing court for.”[22]
[my underlining and emphasis]
[21] Ibid, page 44.
[22] Exhibit 4, Bundle of Summonsed Documents, R2, page 106, paragraph [58].
Having regard to the absence of any supportive medical evidence taking the previously propounded argument any further, I consider that the argument was well-abandoned by the Applicant’s representative at the hearing as part of the Applicant’s concession regarding this first limb of Primary Consideration A.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c) (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of a characterisation as “very serious” indeed.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date. I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Even a cursory view of his criminal history, relatively short in compass though it may be, confirms the Applicant to be a serious offender who was dealt with in consecutive sentencing episodes in September 2016 and March 2017. I have earlier outlined the nature of his offending. Were he to re-offend, vulnerable members of the Australian community – children, in the main - would be realistically harmed as a result of the Applicant’s unresolved disposition towards very serious crimes of sexually offending in relation to children.
The nature of the harm would be augmented by virtue of the relatively contemporary phenomenon of electronic dissemination of the exploitative material found in the Applicant’s possession. In the past, it can be said that such offending predominantly involved conduct directly perpetrated upon child-victims. In today’s world, the potential for harm and the offending itself has grown exponentially because it can occur in a virtual and online paradigm. Only one thing remains constant: the children are the victims and bear both the physical and emotional brunt of this appalling and very serious conduct.
This component of the second limb of Primary Consideration A involves itself with the predictive exercise of determining the harm were an Applicant to re-offend. Here, the Applicant has been dealt with for virtually identical offending and, indeed, at quite a proximate time (circa six months) to his first sentencing episode. To a significant extent, the nature of the harm in the event of the Applicant re-offending has already been gauged and at his second sentencing episode in March 2017, his offending was punished by cumulative head custodial sentences of four years.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
1.Submissions made on behalf of the Applicant at the hearing
In terms of submissions on behalf of the Applicant, with particular reference to his risk of re-offending, his representative said these things:
‘…The contention in the submission is that Mr Boyce is now a changed man and in the circumstances of the offence, which, Senior Member, you would be aware, that are serious, of course.
They should be taken into context to the extent that Mr Boyce has not had any criminal record in his entire life in Australia, and that without actually justifying his action, certain weight should be placed on how his conduct, or periods of lapse of moral judgement that might have potentially arisen out of curiosity, especially at a time where, and in the circumstances where such information may be readily available on the World Wide Web…
But what I suppose I would like Senior Member to actually observe, and especially if you could take some statement from Mr Boyce today is that his present attitude towards his actions to merely appreciate the possibility that his conduct was a one-off, that his conduct was based on an erroneous impression that what he was doing was not directly harmful to any given tomography or to any given person, and to merely appreciate that Mr Boyce had never, did never, and shall never hurt another person, be it in the ordinary sense of the word “hurt” or in the sexual sense. It is also accepted on the evidence that it appears to have been some form of admission to prior conduct by Mr Boyce in relation to sexual encounters with minor children, but once again, the submission is for the Senior Member to take into account the possibility that notwithstanding the conviction, the conviction was a guilty plea…
…
There were convictions in relation to use carriage service to transmit indecent communication to person under 16, which would be the only, well, not the only but which could be one of the primary considerations that the tribunal might take into account when considering whether Mr Boyce might pose as a future threat to the Australian community that he once had transmitted such materials, but I’m trying to put the tribunal notice [sic] is that there is a possibility that the person who had received those materials were not actually people under 16 years old.
So all in all, Senior Member, these are the materials that are before you; there was the possibility of presenting a further psychological report of Mr Boyce, but due to the timetable, as prescribed by policy and also by legislation, there was insufficient time to prepare such psychologist’s report, and on instruction it is that, Senior Member, you would have the liberty to direct questions to Mr Boyce in relation to his current position, and attitude towards his offending.”[23]
[23] Transcript, page 5, lines 30-40, page 6, lines 1-13 and lines 29-44.
2.The Applicant’s own observations in relation to his risk of re-offending
In his Request for Revocation of a Mandatory Cancellation under s 501(3A), the Applicant made these comments:
“Whilst I acknowledge the commission of the offences and express my sincere remorse for having engaged in the relevant conduct, I submit that the offences are of a generally minor nature. No person was physically harmed by the conduct that gave rise to the six charges to which I pleaded guilty against my earnest belief that I was not guilty of several of the charges. I only pleaded guilty to the offences because I was suffering from psychological illnesses arising from three serious accidents in which I sustained head injuries and thereby had a diminished responsibility. My legal representatives never led any evidence about this in mitigation of the penalty in which a custodial sentence is not generally handed down for such offences. Of the six offences, four concern the use, access, transmission or possession of child pornographic material. Some of these charges arose from material I had never solicited but was placed into the hard drive and disseminated from there by someone who appears to have used my computer as one associated with a virtual private network. However, I pleaded guilty to all of the six offences on the advice of my solicitor who expressed the view that hardly any accused person ever successfully defends these types of charges, even if they are innocent. I am now being treated with medications that have caused me to lose all interest in sexual matters and accordingly, will not have a computer in order to prevent altogether the possibility of receiving or transmitted pornographic material. I submit that accordingly, I present no risk of reoffending…”[24]
[my underlining]
[24] Exhibit 3, s 501 G Documents, G6, page 62.
3.Cross-examination of the Applicant in relation to his risk of re-offending
Asserted one-off offending
In the course of the Applicant’s cross-examination, several themes emerged in his evidence whereby he sought to explain his conduct, ameliorate its severity and to otherwise purportedly assure the Tribunal that his offending days were behind him. Initially, the Applicant sought to suggest that his offending was some kind of “one-off” type of behaviour, with little chance of any recurrence. This, of course, was something taken up by the Respondent’s representative given that 19,791 files of child pornography were found on the Applicant’s Seagate storage device. The following exchange ensued between the Applicant and the Respondent’s representative:
“MS CAMPBELL[25]: Okay. So the date of the offence was 13 February 2015 and it is recorded in the sentencing remarks and in the Crown’s material that on the 22 discs that they found in your house and on your Seagate storage device that you had in your possession 19,791 files of child pornography. Do you agree with that?
[25] Solicitor, Minter Ellison, Representative for the Respondent.
APPLICANT: I never – I never could imagine it was that size. I’m led to believe that, yes, I didn’t – never thought it was that big. It’s shocking to – to know it’s that size.
MS CAMPBELL: And of those files, when looking at your Seagate storage device, they were saved into directories in a categorical manner, you’d agree?
APPLICANT: Into – yes, they were horrible and I didn’t want to see them until they had to be separated. I didn’t like what I was seeing.
…
MS CAMPBELL: And would you agree that saving it in a categorical manner like you did shows the significant amount of time that you’d invested in the storage of the items?
APPLICANT: No, it was just the once-off, yes.
…
MS CAMPBELL: So a three year period, you’d agree that’s a prolonged period of time?
APPLICANT: Yes, I suppose, yes, over the time, yes, but it wasn’t always there. It was just willy-nilly, like as in every now and then. It wasn’t constantly that amount of time.
MS CAMPBELL: And you’d agree that your offences couldn’t be viewed as spontaneous or impulsive?
APPLICANT: Sorry, I don’t know what you mean?
MS CAMPBELL: So the conduct occurred for a three year period. Given that that is a prolonged period, it couldn’t be viewed as something that was spontaneous or impulsive?
APPLICANT: Spontaneous meaning?
MS CAMPBELL: Something that was a one-off?
APPLICANT: Every now and then it was a one-off. It wasn’t 24 hours a day; three days later, you know, five days later; there was many, many other things in life I had to do – I was doing; building a vegetable garden, renovating the yard; there was maintenance to be done everywhere; there was a lot of work, 12 hour – rotating shifts I was doing, that created a lot of sleep deprivation. Yes, the work I was doing kept me away from this, yes, kept me, yes, like, I didn’t do anything wrong in the community; normal – normal shopping; yes, I was just like a normal person in the – in the community and happy, kind.”[26]
[my emphasis]
[26] Transcript, page 8, lines 8-19 and 39-41, and page 9, lines 4-24.

There is no credibility to the Applicant’s evidence about his offending somehow constituting “one-off” – type conduct. The sheer volume of the material found in his possession and the prolonged period of time of his involvement with that material absolutely puts paid to any veracity in this aspect of his evidence. His offending conduct was clearly systematic, frequent and sustained across the entirety of the offending period.
The assertion that other people provided the offending material to the Applicant
In terms of explaining his conduct and attempting to convince the Tribunal that there was a low risk of it recurring, the Applicant purported to suggest that he couldn’t be totally culpable for his offending because other people had provided the offending material to him. In cross-examination, the following question/answer sequence took place:
“MS CAMPBELL: So between that three year period – sorry, between 1 January 2012 and 31 December 2012, the sentencing remarks confirm that during that period you downloaded 459 child pornography files via the internet, correct?
APPLICANT: Uploaded, downloaded is two different things.
…
I don’t know, and I can’t – I can’t say. It was uploaded, things were uploaded to me. That quantity was also given to me.”[27]
[my emphasis]
[27] Ibid, page 9, lines 26 – 32.
There can be no credence allocated to the Applicant’s evidence that the nature and amount of material found in his possession is somehow attributable to other people providing it to him. The critical aspect missing from this evidence is that it took his motivation to source, receive and systematically store the material in the first place. So while others may have provided the material to him, he was the one who sourced, found and retained it. This aspect of his evidence goes nowhere.
A denial or downplaying of the suggestion that the Applicant sourced and retained the offending material for his own pleasure
The following exchange ensued between the Respondent’s representative and the Applicant:
“MS CAMPBELL: So you searched for child chat, child fuck, child paedo site pics, child porn, child fuck, preteen girls, Asian preteen girls, kid sex, kiddie chat, pedo [sic], paedophile, a magazine for offending paedophiles, preteen animal fucking, preteen chat, preteen fucking, preteen girls, PATCHCP pics, vibrators for little girls, young chat and young fuck. You’d agree that those were the search terms used by you during that period?
APPLICANT: I don’t remember. Obviously if it was there it must’ve happened. I don’t remember it. When? That must have been the early days.
…
MS CAMPBELL: And you’d agree that the material that you used, you were sexually aroused by it?
APPLICANT: Amused?
MS CAMPBELL: Sexually aroused by the material?
APPLICANT: No. No, I wouldn’t say that, not all the time.
MS CAMPBELL: Were you sexually aroused by the material?
APPLICANT: No.
MS CAMPBELL: And did you ever masturbate to the material?
APPLICANT: To go to sleep, yes.
MS CAMPBELL: How often would you look at the pornography?
APPLICANT: Once every couple of days, once a day; when other chores weren’t happening, when other life things were not important. I had work commitments, I had future commitments, I had a house I was prettying up, renovating.
MS CAMPBELL: So once a day or once every couple of days, depending on commitments?
APPLICANT: Yes, once every five days, it varied.
MS CAMPBELL: So at least a couple of times a week, for at least a three year period. So you’d agree that that’s a sustained interest in child abuse material?
APPLICANT: Off and on. Off and on; no, it wasn’t sustained, it was forgotten about, yes. I could not be involved, I couldn’t – there was other things to do, I’d forget about – it wouldn’t – it wouldn’t be there all the time in my mind.”[28]
[my emphasis]
[28] Ibid, page 10, lines 1-35.
It is, at best, brazen for the Applicant to say the level of pleasure he derived from the unlawful material can somehow be downplayed due to the purported frequency of the number of times he amused himself over it every week or other period. The stark reality is that he was in possession of an extraordinary amount of material which he sourced and retained (and directly involved himself in via direct electronic communications with other role-playing participants) for the specific purpose of pleasuring himself.
An assertion that his online paedophilic chat conduct did not involve ‘real people’
The following exchange ensued between the Respondent’s representative and the Applicant:
“MS CAMPBELL: Okay, so the fourth offence is use carriage service to transmit indecent communication to person under 16 years of age. This offence was reported to have taken place between 2 August 2013 and 18 January 2014, and details of that offence is that between the period you made 68 outgoing transmissions of indecent communications to a person under 16 years of age, which was saved on your Seagate storage device. You’d agree?
APPLICANT: I don’t recall, yes. If it was there, I’ve no idea.
MS CAMPBELL: And you sought these users out to communicate with them because they held themselves out as being under 16 years of age?
APPLICANT: That’s what they said but I didn’t know that was true.
MS CAMPBELL: But that’s the basis upon which you wanted to engage in communication with them?
APPLICANT: I thought they could’ve been pretending like I was, to be honest.
MS CAMPBELL: How were you pretending?
APPLICANT: I was someone else, I was fantasizing about someone else. It wasn’t me that was transmitting.
MS CAMPBELL: And in those chats you reported to these individuals, who put themselves out as being under 16 years of age, as having had sex in the past with a number of underage girls, including the ages of eight, 10, 11 and 13, is that correct?
APPLICANT: No.
MS CAMPBELL: Well, why would you say that to those people?
APPLICANT: Just stories, made-up stories; It was just a fantasy thing to make out I did, but I didn’t. Yes, they were just made up stories, the same as they were doing too, they weren’t telling the truth to me.
MS CAMPBELL: If I could get you to turn to page 54 of that same bundle that you’re on, this is a case note report by the New South Wales Department of Corrective Services, and I’m looking at the second paragraph on page 54, and in the middle of that paragraph it says:
In interview, Mr Boyce was dismissive of this stating that during his online chats with child victims he was only giving them what they wanted to hear.
Is that right?
APPLICANT: Yes, that’s what they asked for.
MS CAMPBELL: And it says:
And depersonalising them by claiming they weren’t real people.
So is that your approach to these communications?
APPLICANT: I pictured them as not who they really were…
MS CAMPBELL: So did you try to depersonalise them?
APPLICANT: Depersonalise, I don’t know what you mean by that. I didn’t – no, I didn’t hate them or wasn’t doing them wrong. The – there was no proof who they were.
MS CAMPBELL: Okay, so it would be fair to say that you didn’t have concern for who the people were, and you were only really concerned by your own sexual pleasure and fantasy?
APPLICANT: No, it was – no, there was no disconcern of them; no, there was no disconcern.
MS CAMPBELL: But your primary concern was your own sexual pleasure?
APPLICANT: No, no, not at all. I was just going into the other side of the – the dark net. These people are not whoever they were, not in ordinary life. These are fantasies coming out, and you know, they led me there.”[29]
[my emphasis]
[29] Ibid, page 11, lines 21-47, and page 12, lines 1-32.
It is not possible to allocate any level of credibility to this evidence. It is astonishing that the Applicant seeks to downplay his offending behaviour specifically relating to online chatting as somehow not involving real people. Or, put another way, this aspect of his offending is not to be regarded as serious because he was only telling recipients what they wanted to hear.
The assertion that his offending was the result of sleep deprivation
In the course of his cross-examination, the Applicant sought to introduce the factor of sleep deprivation and an apparent preoccupation with his work commitments as somehow being causative of his preponderance towards paedophilic offending. He was taken to a passage in his Personal Circumstances Form where he wrote these words: “I submit that the offences are of a generally minor nature.” The following exchange ensued between the Respondent’s representative and the Applicant:
“MS CAMPBELL: Can you explain why you think these offences are minor?
APPLICANT: I wasn’t – yes, I – I never would’ve touched anyone, I never touched anyone, I will never touch anyone. I was separated. Yes, there was – the connection wasn’t a concern I thought, it was, yes – yes, I wasn’t there, it was – it was, yes, a separation of seriousness. The massive sleep deprivation I was going through at the time from shift work, not getting much sleep, sometimes no sleep, was the reason that I – yes, I wasn’t – I wasn’t connected, I didn’t see it as an issue, yes. Yes, it was – I thought I was – yes, it was free, it was just so blatantly all over the net, it was – I was enticed into it and it was the - the downfall.”[30]
[my emphasis]
[30] Ibid, page 14, lines 30-39.
I reject this evidence because there can surely be no credibility attributable to the suggestion that the Applicant lost his moral compass and committed these very serious offences due to the level of sleep he was or was not getting. This evidence, too, goes nowhere.
That the material appeared on his computer as a result of ‘viruses’
Rather astonishingly, the Applicant sought to introduce an IT element to his evidence in an effort to explain both the level and nature of paedophilic material found in his possession. According to this theme of his evidence, aggressive external computer ‘viruses’ put there (i.e. into his computer) by other persons are the cause. He was again taken to his Personal Circumstances Form and, specifically, to his comment therein that “some of these charges arose from material I never solicited but was placed into the hard drive and disseminated from there by someone else who appears to have used my computer as one associated with a virtual private network,”:
“MS CAMPBELL: So, to confirm?
APPLICANT: There were viruses put on my computer.
MS CAMPBELL: Okay. So, you’re saying that some of the charges, you’re not responsible for?
APPLICANT: I think so. Well, I let it happen, so I [sic] responsible for that, yes. It was beyond my control to stop the viruses that were making that happen – that were – that’s what – it’s my fault that it happened, but that was out of my control to stop the viruses doing their thing. There was a tall tower that was non-operating when the police came around. The black tower, I think it was – computer tower – that was not working because of the virus that was there and I – yes, what they do is probably – is why it’s a large quantity of material.”[31]
[my emphasis]
[31] Ibid, page 15, line 46 and page 16, lines 1-9.
Ridiculous though this evidence sounds, it is made even more so by its improbability – from a purely IT perspective – even though the Tribunal did not have the benefit of evidence from an IT expert to say whether this sort of enforced introduction of viruses into an offender’s computer can happen at all. The evidence is of no value.
The Applicant’s lack of insight into the causative factors behind his offending
It emerged from his cross-examination that the Applicant does accept that he might need psychological and/or psychiatric treatment or intervention, but that such intervention should be limited to how he organises his life. This is what ensued in cross-examination:
“MS CAMPBELL: Mr Boyce, you’ve never received any treatment by a psychologist. Correct?
APPLICANT: Treatment or assessment?
MS CAMPBELL: Treatment?
APPLICANT: I’ve been assessed, but no, I haven’t seen a psychiatrist, no.
MS CAMPBELL: And you haven’t…?
APPLICANT: Yes, I did. I did. I did see one at Villawood and he asked me questions on an A4 sheet of paper, in the space of 20 minutes and said there’s nothing wrong with me.
MS CAMPBELL: So that’s the extent of your treatment?
APPLICANT: That’s what he said, so therefore I don’t [sic] treatment. No, wrong, I do need treatment, but that psychiatrist said there was nothing wrong with me. Obviously, he wasn’t a very good psychiatrist.
MS CAMPBELL: What treatment do you think you need?
APPLICANT: How not to be – I’ve forgotten the word, not lethargic – how to not, not do things. How to succeed. There’s a lot of attempts of completing important things that I don’t get completed. Nearly everything I attempt to do, doesn’t come to a conclusion. They don’t, yes, a lot of failures of success and I was getting somewhere, like the vegetable garden, that was a project that had to come to an abrupt halt because of this. I was going places with the landscaping but that’s another thing that’s failed.
MS CAMPBELL: Okay. So, to confirm, the treatment that you think you need by a psychiatrist or psychologist, is to assist with things such as being able to better complete things?
APPLICANT: Yes, be a complete person.
MS CAMPBELL: It has nothing to do with your offending behaviour?
APPLICANT: Yes. Yes, it would have to be that. It would have to include that, yes.”[32]
[my emphasis]
[32] Ibid, page 16, lines 11-39.
This component of the Applicant’s evidence, to my mind, is disturbing due to his inability to grasp that something is seriously wrong with him that has, and most probably will, predispose him towards this type of offending. One is hard-pressed to allocate any level of credibility to this aspect of his evidence when he thinks the best benefit he can obtain from psychological/psychiatric intervention is to achieve a more organised life.
Another aspect of this part of the Applicant’s evidence in cross-examination involved sexual dysfunction. The exchange between him and the Respondent’s representative went like this:
“MS CAMPBELL: Well, what part about the offending behaviour do you think needs treatment?
APPLICANT: I am not able to climax anymore, so there’s no point in thinking about it. Yes, the – that’s probably why I haven’t got a relationship, because the sex is not going to happen – it doesn’t happen anymore. So, the therapy there would maybe help me climax, but I can’t anymore.
MS CAMPBELL: Okay, and you haven’t accessed any sex offender treatment programs, have you?
APPLICANT: No.
MS CAMPBELL: You’d agree that when this was offered to you by Community Corrections staff that you weren’t receptive to discussing it?
APPLICANT: Yes, the embarrassment was massive, because I wasn’t – they’ve labelled me. The embarrassment of standing up in front of everyone and saying everything was too great. Yes, a one on one session would’ve been more appropriate than standing in front of everyone and – I couldn’t do it.
MS CAMPBELL: Well that’s reluctancy, isn’t it?
APPLICANT: Reluctant is not wanting to do it.
MS CAMPBELL: You’re not able to engage in sex therapy. Correct?
APPLICANT: Sex doesn’t happen anymore, so I don’t need it. Yes, I’m not capable of climaxing.”[33]
[my emphasis]
[33] Ibid, page 16, lines 41-45 and page 17, lines 1-20.
I also find this aspect of the Applicant’s evidence to be disturbing. It is, to my mind, demonstrative of a very serious deficiency in the Applicant’s insight into his offending for him to suggest that the primary purpose and benefit of psychological/psychiatric intervention would be to (1) make his life better organised, and (2) assist him with his sexual dysfunction. The further disturbing element is that he seems to be propounding a position that he is now of low risk of re-offending due to his asserted sexual dysfunction. That evidence is to be rejected outright.
4.Quoted portions of the sentencing remarks
Consistent with the themes that emerged in his cross-examination, the Respondent has helpfully quoted portions of the relevant sentencing remarks demonstrating the very real risk of the Applicant re-offending, together with his lack of insight into his offending behaviour, his resistance towards remedial treatment, his willingness to allocate blame to others and a further capacity to propound a victim mentality. Those quoted portions are worthy of being cited In full for the purposes of these reasons:
“(a) throughout the [pre-sentencing] interview, the offender displayed a sense of victimisation with regard to his offending, reportedly felt embarrassed and sad about his current predicament, attributing blame to the investigating police. ‘It’s their fault they didn’t stop me.’
“(b) the offender denied having any current sexual needs and displayed a poor understanding of the connection between his own sexual interests, preoccupation and his offending behaviour.”
(c) the offender expressed contempt for the bail restrictions currently imposed, preventing him from using the internet, saying, ‘the police have confined and restricted me’. He was not receptive to discussing sex offender treatment programs, such as offered by Corrective Services New South Wales, nor the notion of being supervised by Corrective Services New South Wales in [sic] community setting.
“(d) despite stating he was not interested in the material, the offender commented he had found images overpowering and all-consuming and he had to sexually relieve himself before he could stop looking at them.”
“(e) attempts to explore in greater depth and challenge the offender’s attitude to his offending were thwarted by his resistance and disinclination to co-operate.”
“(f) that reporter [who attended the pre-sentence interview] thought the offender displayed no insight into his offending behaviour; appeared to place blame on the victims, stating they were the deviants and wanted to hear those things. During discussions that reporter thought the offender seemed to display a sense of victimisation with regard to his offending.”
“(g) during the current assessment process the offender displayed a belligerent and resistant attitude towards Community Corrections staff and on 21 October 2015 a home visit assessment was attempted, however, the offender refused entry to his premises and became aggressive and intimidating towards staff…”[34]
5.Specialist psychological (and other) assessment of the Applicant’s risk of re-offending
[34] Respondent’s SFIC, pages 9-10, paragraph [26] containing these quoted portions of the sentencing remarks. Note: each of these quoted portions are footnoted in paragraph [26] of the Respondent’s SFIC.
On 28 October 2015 the New South Wales Department of Corrective Services and Community Corrections issued a pre-sentence report which recorded these findings:
“RISK LEVEL AND CRIMINOGENIC NEEDS
According to the Level of Service Inventory – Revised actuarial risk/needs assessment tool, the offender is assessed as a low risk of re-offending. It is noted however, that the risk assessment conducted by the specialist psychologist determined that this offender was considered a moderate to high risk of reoffending relative to other male sex offenders.
The identified criminogenic needs are:
oEmotional/personal
oAttitude/orientation
oSex-offending
…
Assessment
During the preparation of this report, Mr Boyce was, as indicated above, minimally co-operative and significantly resistant. He indicated a non-preparedness to participate in offence targeted interventions as discussed with the psychologist.
Supervision by Community Corrections
Mr Boyce refused to provide details for any 3^rd party collateral checks. He refused to allow Community Corrections officers into his home; he was aggressive and intimidating during the interview. Due to these factors it would appear that supervision, at this stage, would be likely to facilitate change without a marked shift in the offender’s attitude.
Community service order assessment – unsuitable
The offender has been assessed as unsuitable for a community service order…due to the nature of his offences.”[35]
[my underlining, emphasis in original]
[35] Exhibit 4, Bundle of documents obtained by way of summons, R1, page 51-53.

Dr CJ Lennings is a Clinical Psychologist who provided a report roughly contemporaneous with the Applicant’s first sentencing episode. In terms of his risk profile for re-offending, Dr Lennings made these observations:
“Mr Boyce seems to minimise his culpability by reference to the notion that young children enjoy sexualised behaviours and that he has not directly recruited victims.”;[36]
“Mr Boyce evidences a range of cognitive distortions that support offending behaviour, including pejorative views of peer aged female relationships and beliefs that young children enjoy sexually abusive behaviours.”;[37]
Mr Boyce impresses as a non-reflective person who lacks self-esteem but avoids having to deal with the issues that cause him to avoid or truncate age appropriate relationships.”[38]
[36] Ibid R2, page 108.
[37] Ibid, page 109.
[38] Ibid.
In terms of an assessment of the Applicant’s risk profile regarding re-offending, Dr Lennings said:
“Overall, Mr Boyce’s risk profile is likely moderate on the RSVP and low on the RM2000S(r). Allowing for the somewhat experimental nature of the Risk matrix, it seems appropriate to consider Mr Boyce’s risk as best defined by the dynamic risk assessment, that is, without appropriate treatment and management his risk of recidivism is likely in the moderate range.”[39]
[39] Ibid, page 105.
Having regard to (1) the Applicant’s historical refusal to meaningfully engage with any rehabilitative treatment process, (2) the sheer extent and chronicity of the offending, and (3) his demonstrated lack of insight into the causative factors behind his propensity to offend, one has little alternative other than to adopt the abovementioned assessments of his risk of recidivism. For this type of offending and due to the demonstrated lack of insight into that offending, a finding of even a moderate risk of re-offending is unacceptable.
Finding about likelihood of re-offending
Viewed in its totality, aside from the two abovementioned reports, there is a dearth of more recent independent and expert medical (or other) opinion to convince the Tribunal of the Applicant’s self-reported claims of now being a different person who, for a range of self-reported and self-assessed reasons, has re-configured his life (or been forced to re-configure it) such that he no longer represents any risk to the Australian community. The state of the evidence is such that I have minimal to no confidence in this Applicant not further offending were he to be returned to the Australian community.
I am also mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[40]
[40] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that: (1) the nature of the Applicant’s offending conduct to date is very serious; and
(2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
Were he to re-offend, the potential harm that would be occasioned to others (and in particular, children who are perhaps the most vulnerable people in our community) would be both physically and psychologically substantial, very serious and quite conceivably catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily and determinatively in favour of non-revocation.
Perhaps the last word in relation to this Primary Consideration A might belong to the Applicant. This is what transpired in cross-examination:
“MS CAMPBELL: You didn’t get anyone to produce a statement in your support in this application?
APPLICANT: Sorry, say that again?
MS CAMPBELL: You didn’t ask anyone to produce a statement for you in support of the application?
APPLICANT: Application for?
MS CAMPBELL: This application before the Tribunal?
APPLICANT: No, I didn’t, no. I was going to. I wanted to a get a psychiatrist to examine me, but yes, I’m not going to fight anymore. I was trying to appeal against everything, but it’s just all a no-win scenario, so I’m not – I’m willing to succumb.”[41]
[my emphasis]
[41] Transcript, page 18, lines 17-26.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
To quote the Applicant’s representative at the hearing: “On instruction Mr Boyce is a single person and a single man, and apart from some friends has no family or children in Australia.”[42] It is common ground between the parties that the material discloses no children potentially affected by the cancellation decision. Accordingly, this Primary Consideration B is not relevant in this case and is of no weight.
[42] Ibid, page 4, lines 22-23.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[43] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[44] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[43] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[44] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
In submissions made on behalf of the Applicant in relation to this Primary Consideration C, the Applicant’s representative conceded that:
“Yes. So on instruction…the third limb of the Primary Consideration of the ministerial direction 79, also not heavily pressed upon because it is accepted that the Australian community will take a rather conservative view in that a person convicted of the offences should have the visa cancellation heavily considered by the relevant authority. So therefore the instruction, the only ground that is really being presented by Mr Boyce today shall be the extent to which he is a threat to the Australian community.”[45]
[45] Transcript, page 5, line1 – 10.
For the purposes of considering the instant application, the essential question, to my mind, with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[46] notwithstanding the contributions of the Applicant (if any) to the Australian community, the amount of time he has lived in Australia,[47] and the impact (if any) of his removal upon his immediate family in Australia.[48] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should (or should not) retain the privilege of remaining in Australia must be broken down into a series of components so that it can be properly understood and assessed.
[46] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[47] Ibid, paragraph 6.3(5).
[48] Ibid, paragraph 6.3(7).
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·I have found that his offending in this country can only be described as “very serious” and I have also found that there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community; and
·beyond the expert material previously used for, or deriving from, sentencing purposes, there is no definitive, independent or expert evidence before the Tribunal of: (1) any diagnosis of psychological or other factors predisposing the Applicant to offend; (2) that those factors have been identified and are now the subject of remedial therapy and management; (3) that the Applicant has demonstrated any convincing level of insight into his offending so that; (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[49]
[49] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[50] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[50] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[51]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[51] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[52] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[52] [2018] FCA 1311 at [85].
Having regard to my findings as to:
(i)the very serious nature of the Applicant’s offending to date;
(ii)his demonstrated lack of insight into the nature of his offending involving, as it does, a lack of engagement with rehabilitative and remedial treatment that could identify and assist him to manage the factors predisposing him to offend;
(iii)my finding that his lack of insight about the severity of what he has done points to a very convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community;
(iv)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend; and
(v)the comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision-maker applies paragraph 13.3(1) of the Direction in the current context.
- I find that the Australian community would consider that this Applicant, who has resided in Australia for approximately 40 years and committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing and in his written material, the Applicant spoke of wanting to return to the Australian community to find work, establish his vegetable garden, effect certain landscaping and other renovations to his residential property. Consistent with paragraph 13.3(1) of the Direction, I am of the view to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he should not hold a visa to remain here.
Notably, the Applicant has produced no letters or statements in support of his application. He was asked about that in cross-examination and responded as follows:
“MS CAMPBELL: So your friends don’t want to talk to you?
APPLICANT: Well, the ones I’ve tried to communicate with. I don’t know if their number is non-existent or anything, but no, I’ve sent you know, greetings, birthdays and that – greetings and no reply.
MS CAMPBELL: Yes?
APPLICANT: So, you read between the lines.”[53]
[my emphasis]
[53] Transcript, page 18, lines 6-11.
The Applicant has not been entirely dilatory during his time in this country. The material discloses that he has “paid off” his home.[54] The material also discloses that he has worked with entities as diverse as “BHP Billiton, Anglo Coal, Tesa, Thiess Contractors and Liegton [sic] Contractors”.[55] While the Applicant describes himself as “…a very good and honest worker”[56], there is no reference from any employer in the material.
[54] Exhibit 3, s 501 G Documents, G7, page 62: Applicant’s Personal Circumstances Form.
[55] Ibid, page 72: Applicant’s Personal Circumstances Form.
[56] Ibid.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily and determinatively in favour of non-revocation. I consider that the expectations of the Australian community are such that, given the very serious nature of this Applicant’s offending, involving, as it does, numerous and very serious sexual offences involving children, he should not hold a visa to remain here.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant disclosed either in the material or during the course of the hearing. This Other Consideration (a) is not relevant in this case.
(b) Strength, nature and duration of ties
While the Applicant has lived in Australia for approximately 40 years, there is scant evidence of any significantly strong ties to this country. As confirmed by his representative, the Applicant has always been “…a single person and a single man, and apart from some friends has no family or children in Australia.”
Of the friends he does have in Australia, one can only surmise from his evidence that although he has attempted to communicate with those friends by sending them birthday greetings and the like, none of them have replied to him or otherwise communicated with him. As mentioned earlier, when asked about why this was the case he told the hearing, “So, you read between the lines.”
It is thus difficult to apply the factors appearing in paragraph 14.2 of the Direction in favour of the Applicant. It is correct to say that pursuant to paragraph 14.2(1)(a)(i) of the Direction, the Applicant has resided here for 40 years and cannot be said to have commenced offending soon after his arrival. Similarly, pursuant to paragraph 14.2(1)(a)(ii) of the Direction, the Applicant has spent some of his time here contributing positively to the Australian community as a result of his engagement in remunerative employment.
However, any weight attributable to the abovementioned components of paragraph 14.2(1)(a) is more than outweighed by the almost total absence of any family or social links the Applicant has in Australia with any Australian citizens and/or Australian permanent residents and/or people who have an indefinite right to remain here (paragraph 14.2(1)(b)). In his evidence, the Applicant said that in Australia he has “a friend, he’s like a brother,”[57]. There is no statement or letter of support from such a person. In any event, any remotely beneficial effect of this evidence is more than outweighed by the further stark reality arising from the Applicant’s evidence when he said “I have a lot of friends actually, that I’ve realised they don’t want to talk to me.”[58]
[57] Transcript, page 18, lines 1-2.
[58] Ibid, lines 2-3.
While there can be said to be a modicum of support for the Applicant arising from an application of paragraphs 14.2(1)(a)(i) and (ii), any such support is more than outweighed by my findings in relation to 14.2(1)(b) of the Direction. At best, only slight weight can be allocated to this Other Consideration (b) and it is very significantly outweighed by Primary Considerations A and C, which heavily and determinatively favour non-revocation.
(c) Impact on Australian business interests

I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on any victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
While the Applicant has been living in Australia for approximately 40 years since arriving from his native New Zealand in 1979, movement records nevertheless indicate that he has travelled back to New Zealand on approximately 17 occasions since he first arrived in Australia. According to those records, those return visits to New Zealand occurred on:
·22 December 1981
·17 December 1985
·5 April 1987
·11 November 1988
·15 December 1989
·29 March 1994
·23 September 1994
·10 August 1996
·20 December 1996
·20 December 1997
·16 February 1998
·20 October 1999
·27 February 2002
·20 March 2004
·29 January 2007
·23 December 2008
·12 June 2011
Paragraph 14.5 of the Direction directs a decision-maker to take into account the extent of any impediments the Applicant may face if removed from Australia to his home country, having regard to: (a) the Applicant’s age and health[59]; (b) whether the Applicant will be confronted by substantial language or cultural barriers upon return[60]; and (c) whether the Applicant will be forced to deal with any social, medical and/or economic support available to the Applicant in that country.[61] Paragraph 14.5 provides that any assessment of how any non-citizen will establish themselves and maintain basic living standards in their country of origin is to be gauged against what is generally available to other citizens of that country.
[59] Paragraph 14.5(1)(a) of the Direction.
[60] Paragraph 14.5(1)(b) of the Direction.
[61] Paragraph 14.5(1)(c) of the Direction.
I do not consider that any of the factors appearing in Paragraph 14.5(1) of the Direction assist the Applicant. He apparently enjoys good health and is 59 years of age. There is nothing in the material to indicate any adverse health or wellbeing outcomes were he to be relocated to New Zealand.
He would suffer no language or other cultural barriers if compelled to return to New Zealand. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand… [the Applicant lived in New Zealand for the first two decades of his life]… New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.[62]
[62] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
He has demonstrated an ability to derive income such as to be able to maintain a basic standard of living in Australia. There is nothing to suggest that he would not be able to achieve the same thing in New Zealand. Were the Applicant to be in need of state-based support he would be entitled to such social, medical and/or economic support to the same level as is generally available to other citizens of New Zealand.
I agree with the Respondent’s contention to the effect that while the Applicant may face some difficulty in re-establishing himself in New Zealand, this would only comprise a short-term hardship and would not preclude his resettlement there.[63]
[63] Exhibit 2, Respondent’s SFIC, page 11, paragraph [34].
The Applicant’s evidence in cross-examination supports my abovementioned comments in relation to this Other Consideration (e):
“MS CAMPBELL: In New Zealand, you have three younger siblings living there, is that correct?
APPLICANT: Brothers and sisters?
MS CAMPBELL: Yes?
APPLICANT: Yes, two sisters, one brother.
MS CAMPBELL: Do you remain in contact with them?
APPLICANT: Yes, good.
MS CAMPBELL: Yes, so a good relationship with them?
APPLICANT: Yes, they visit me over here. Apart from my gaol, they visited me over here.
MS CAMPBELL: What other family or friends do you have in New Zealand?
APPLICANT: Long – friends that I probably will catch up with. I haven’t catch – they haven’t kept in contact. Cousins, yes there’s heaps there, no drama.
MS CAMPBELL: Your movement records that we have before the tribunal indicate that you’ve semi-regularly returned to New Zealand since your arrival in Australia?
APPLICANT: Yes.
MS CAMPBELL: Yes?
APPLICANT: Yes. Yes, to stay in contact with my family.”[64]
[my emphasis]
[64] Transcript, page 18, lines 28 – 46.
Having regard to the totality of the evidence, I find that this Other Consideration (e) is neutral and of no weight or assistance in favour of the Applicant.
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily and determinatively in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant
·Strength nature and duration of ties: is of slight, if any, weight for the Applicant
·Impact on Australian business interests: not relevant
·Impact on victims: not relevant
·Extent of impediments if removed: is of no weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant passes the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily and determinatively in favour of non-revocation;
·Primary Consideration C weighs heavily and determinatively in favour of non-revocation;
·Primary Consideration B is of no relevance to the determination of this application;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other, outweigh the very heavy and determinative combined weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............................[sgd]...........................................
Associate
Dated: 25 July 2019

Date of hearing:
Applicant:

15 July 2019

Appeared in person

Advocate for the Applicant:

Solicitors for the Applicant

Mr Zhao (Solicitor)

Brightstone Legal

Advocate for the Respondent: Ms Campbell (Solicitor)

Solicitors for the Respondent: Minter Ellison

[2019] AATA 2218

25 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing: Applicant:	15 July 2019 Appeared in person
Advocate for the Applicant: Solicitors for the Applicant	Mr Zhao (Solicitor) Brightstone Legal
Advocate for the Respondent:	Ms Campbell (Solicitor)
Solicitors for the Respondent:	Minter Ellison