Cargill and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 50
•30 January 2025
Cargill and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 50 (30 January 2025)
Applicant/s: Duncan McDermott Cargill
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9013
Tribunal:General Member Gallagher
Place:Perth
Date of Decision: 30 January 2025
Decision:The Reviewable Decision, being the decision of the Delegate dated 6 November 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.
………………………[SGD]………......
General Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 64 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499, 499(1), 499(2A), 500(6B), 500(1)(b), 501, 501(3A), 501(3A)(b), 501(3A)(a)(i), 501(6), 501(6)(a), 501(6)(e)(i), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Dalzell and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 17
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3498
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 5.2(6), 6, 7, 7(3), 8, 8.1(1), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(1), 8.3(2)(a), 8.3(2)(b), 8.4, 8.4(2), 8.4(3), 8.4(4)(a)-(h), 8.5(1), 8.5(2), 8.5(2)(a)-(f), 8.5(3), 8.5(4), 9, 9.1, 9.2, 9.2(1)(a)-(c)
Statement of Reasons
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent (the Delegate) dated 6 November 2024, not to revoke the cancellation of his Special Category (Temporary) (Class TY) (subclass 444) visa (the Visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the MigrationAct) (the Reviewable Decision).[1]
[1] Exhibit R2, G3, p 17.
The application for review was lodged with the Administrative Review Tribunal (the Tribunal) on 7 November 2024,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
s 500(1)(b) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.[2] Exhibit R2, G2.
BACKGROUND
The Applicant is a 64-year-old[3] citizen of New Zealand and the United Kingdom.[4] The Applicant was born in the United Kingdom[5] and relocated to New Zealand with his family at the age of 4.[6] The Applicant first arrived in Australia on 10 August 1987, at the age of 27.[7]
[3] Exhibit R2, G16, p 203.
[4] Exhibit R2, G9, p 152.
[5] Exhibit R2, G9, p 151.
[6] Exhibit A1, [7].
[7] Exhibit R2, G16, p 204.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission run on 14 June 2024,[8] a Conviction History Report by the New Zealand Police run on 17 July 2024,[9] and a History for Court Report by the Western Australian Police Force compiled on 20 November 2024.[10]
[8] Exhibit R2, G4, pp 37-9.
[9] Exhibit R2, G5, p 40.
[10] Exhibit R3, TB3, pp 45-49.
The Applicant’s offending history is compiled in Annexure A.
On 30 July 1981, in New Zealand, the Applicant was convicted of ‘Failing To Pay Speeding Infringement Fee’ and fined $9.[11]
[11] Exhibit R2, G5, p 40.
On 15 November 1990, the Applicant was convicted in the Fremantle Court of Petty Sessions of:
(a)‘No Motor Drivers Licence’; and
(b)‘Fail to Give Way to Turning Vehicle at Terminating Road’
and fined a total of $125.[12]
[12] Exhibit R2, G4, p 39.
Notably, on 11 January 2024 the Applicant was convicted of 22 counts of ‘Possessing child exploitation material’ in the Perth District Court of Western Australia and was sentenced to separate terms of imprisonment for each offence between three and 12 months.[13] Convictions for three of the 22 counts (being counts one, six and nine)[14] were ordered to be served cumulatively and all remaining sentences were imposed concurrently.[15] This resulted in a total effective sentence of 24 months’ imprisonment.[16]
[13] Exhibit R2, G4, pp 38-9.
[14] Exhibit R2, G6, pp 70-1.
[15] Exhibit R2, G6, p 71.
[16] Exhibit R2, G6, p 71.
The circumstances of these offences, which occurred on 24 November 2022, can be summarised as follows:[17]
[17] See Exhibit R2, G6, pp 44-50; Exhibit R3, TB1, pp 4-15.
Detectives executed a search warrant at the Applicant’s home address.
(b)The detectives’ search of the Applicant’s laptop, multiple storage devices including external hard drives and thumb drives, and computer tower revealed Child Exploitation Material (CEM).
(c)Each device is the subject of the 22 counts for which the Applicant was convicted.[18]
[18] Exhibit R2, G6, p 45.
(d)Each device was examined into a maximum of 1,000 images or 50 videos capable of constituting CEM.[19] In total, 9,639 images and 301 videos were categorised.[20]
[19] As the examination of the devices was deliberately limited to a maximum of 1,000 images per device, there is a possibility that there was a greater amount of offensive material to have existed on each device, which is an unknown; see Exhibit R2, G6, p 50; Exhibit R3, TB1, p 5, [6]. The Applicant was convicted and sentenced based on the material actually found.
[20] Exhibit R2, G6, p 50.
(e)The CEM downloaded from the Applicant’s devices was manually categorised using the Australian Child Abuse Categorisation Schema (ACACS) as Category 1 or Category 2 images. Those categories are:[21]
[21] Exhibit R3, TB1, p 5, [5].
Category 1 –
· Must depict a pre-pubescent child (or one very early into puberty) who is perceived to be under 13 years of age.
· Must be a “real child”.
· Must show sexual activity involving a child (including having to watch sexual activity) or have a clear focus on either the genitals or anus.
Category 2 –
· Any other CEM that meets the Western Australian or Australian Commonwealth legislative definitions of CEM that is not Category 1, including:
o Animated or written CEM.
o Children over the age of 13 years, including Commonwealth Child Abuse Material (CAM) which children under the age of 18 years.
(Emphasis in original)
In relation to the CEM offending, the sentencing judge noted:[22]
[22] Exhibit R2, G6, pp 50-5.
As can be seen from the descriptions outlined the vast majority of the images that you downloaded appear to be predominantly pictures of children who were either naked or posing in sexually provocative ways.
However, there is a not insignificant component of the material that you collected which also depicted children engaged in extreme sexual penetrative behaviour.
Where that behaviour was depicted generally speaking the children were of a young age, some were prepubescent, others were in their in their [sic] very early teens. And it’s only a very small component which involves you manipulating images through photoshopping in the way that you have described in your explanation to the interviewing officers, which I’ll return to.
…
You explained that you had images of nudism on your computer and that you occasionally did some surrealistic art where you juxtaposed things and that might constitute child exploitation material.
To begin with you maintained that what you were looking for on the Internet was nudism but as the questioning progressed you admitted that you do download pornography and that whilst looking for pornography you go down what you described a rabbit holes.
…
Rather than expressing disgust at this it seems that you were more curious based upon comments that you made throughout your interview…
…
…[G]iven the quantity of material and the number of devices that you have saved material on as well as the fact that I’m told today as a consequence of questions from me and instructions that were taken this has lasted the process for about for your [sic] years. It is difficult to reconcile your explanation that you do it when pissed with the quantity that was located.
You blamed your offending upon your autism and that you would go down the rabbit holes and:
Get stuck in [expletive] dirty things.
You described that upon discovering that you had saved and downloaded child pornography you would often go back and delete them. Again, this is inconsistently [sic] with the quantity and the number of devices, which you’ve accepted, were in your possession.
You specifically stated that you were not looking for videos. Again, this is difficult to reconcile with what you have accepted was in your possession. You describe this as not being a conscious process and it was like a puzzle game to you. What you described was that you found the aesthetics of children and their bodies beautiful but you did not find them sexually attractive. You explained that you were motivated to collect this material out of curiosity.
…
…I’m not persuaded that you possessed the images that are the subject of the 22 charges before me for the purposes of obtaining sexual gratification. I’ve accepted your explanation that you possessed them of your own curiosity. However, your candid admissions regarding your possession of these pictures of dead bodies and people hanging for your own sexual gratification perhaps illustrates your attitude generally towards possessing material that is morally questionable in circumstances where it provides you with some benefit, whether that is satisfaction of your own sexual needs in relation to mortuary imagery or whether it is satisfaction of your own curiosity in relation to the child exploitation material.
On 22 March 2024, the Applicant was convicted on three counts of ‘possess or copy an indecent or obscene article’ and was (globally) fined $2,500.[23]
[23] Exhibit R2, G4, p 38. These convictions related to images that were located on the Applicant’s computer that depicted dead bodies and people hanging. See Exhibit R2, G6, pp 98-9; Exhibit R3, TB3, p 75.
The Tribunal also notes the Applicant’s traffic offending history, where he was non-compliant with traffic laws on 25 occasions between 26 December 2006 and 1 July 2023.[24]
[24] Exhibit R3, TB5, pp 122-3.
Present proceedings
On 16 July 2010, being the Applicant’s most recent arrival to Australia, the Applicant was granted the visa.[25]
[25] Exhibit R2, G16, p 203.
On 16 April 2024, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[26] The Applicant was notified by letter of the same date, which he received by hand delivery to Karnet Prison Farm.[27]
[26] Exhibit R2, G17, p 205.
[27] Exhibit R2, G17, pp 205-12.
Following the Cancellation Decision, the Applicant made a request for revocation of the Cancellation Decision and made representations to the Delegate in support of his request for revocation of the Cancellation Decision under s 501CA of the Act.[28]
[28] Exhibit R2, G8, G9.
On 6 November 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[29] The next day, the Applicant’s representative was notified of the Reviewable Decision by email.[30]
[29] Exhibit R2, G3, p 17.
[30] Exhibit R2, G3, p 15.
On 7 November 2024, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[31]
[31] Exhibit R2, G2.
At the time of hearing, the Applicant was imprisoned at Karnet Prison Farm. He was granted parole on 10 December 2024 and was released on parole on 8 January 2025. He is currently detained at Yongah Hill Immigration Detention Centre.
ISSUES
The issues before the Tribunal are:
whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.[32]
LEGISLATIVE FRAMEWORK
[32] See Migration Act, s 501CA(4).
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test and, if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
6For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child
(emphasis in original.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
7For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more(emphasis in original.)
Under s 501(3A)(a)(i) of the Migration Act, the Minister must cancel the visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A)(b) of the Migration Act, the person must be serving a ‘sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.’
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[33] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person either passes the character test, or that there is ‘another reason’ why the original decision should be revoked.[34]
[33] Migration Act, s 501CA(3).
[34] Migration Act, s 501CA(4)(b).
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[35]
[35] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 6 and 7 January 2025 at the Tribunal’s Perth Registry. The Applicant was represented by Mr Hamish Glenister, of William Gerard Legal. The Respondent was represented by Mr Jarvis Kirstenfeldt of Sparke Helmore Lawyers. The Applicant appeared by video link from Karnet Prison Farm. All other parties appeared in person.
At the hearing, the Applicant gave evidence and was cross-examined. The following witnesses also gave evidence and were cross-examined:[36]
(a)Dr Jeffry Cargill, the Applicant’s son;
(b)Ms Tracy Cargill, the Applicant’s daughter-in-law;
(c)Mr Daniel Cargill, the Applicant’s son;
(d)Ms Jennifer Day, the Applicant’s ex-partner;
(e)Ms Theresa Cargill, the Applicant’s daughter; and
(f)Mr Todd Wehi, the Applicant’s son-in-law.
[36] Apart from the Applicant, all witnesses appeared in person.
The following documents were marked as exhibits:
(a)Applicant’s Statement of Facts, Issues and Contentions dated and filed 26 November 2024 (Exhibit A1);
(b)Statement of Duncan Cargill, undated, filed 10 December 2024 (Exhibit A2);
(c)Statement of Tracy Cargill, dated 6 December 2024 and filed 10 December 2024 (Exhibit A3);
(d)Statement of Todd Wehi dated and filed 6 December 2024 (Exhibit A4);
(e)Further Statement of Theresa Cargill with attachments dated 17 December 2024 and filed 20 December 2024 (Exhibit A5);
(f)Respondent’s Statement of Facts, Issues, and Contentions dated and filed 10 December 2024 (Exhibit R1);
(g)Respondent’s Section 501 G Documents, comprising 237 pages, filed 19 November 2024 (Exhibit R2); and
(h)Respondent’s Tender Bundle, comprising 123 pages, filed 10 December 2024 (Exhibit R3).
The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts.[37] At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110), in their oral closing submissions.
[37] See Exhibits A2-A5 (inclusive); Exhibit R2, G12, pp 188-95.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7).
Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[38] Further, and relevantly, s 501(6)(e)(i) of the Migration Act provides that a person does not pass the character test if they have been convicted of ‘one or more sexually based offences involving a child’. Failure to pass the character test arises as a matter of law.[39]
[38] Migration Act, s 501(7)(c).
[39] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, 685 [63].
As noted above, on 11 January 2024, the Applicant was convicted in the Perth District Court of Western Australia of 22 counts of ‘possessing child exploitation material’ and sentenced to a total effective sentence of 24 months’ imprisonment.[40]
[40] See [8] above.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more and been convicted of one or more sexually based offences involving a child, he does not pass the character test.[41]
[41] The parties accept this is the case.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[42]
[42] See Migration Act, s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction no. 110, there is ‘another reason’ why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[43]
[43] Migration Act, s 501CA(4)(b)(ii).
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
Direction no. 110
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No. 99.[44]
[44] Direction no. 110, paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of the Migration Act.[45] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Directionno. 110 where relevant to the decision.[46][45] Direction no. 110, para 5.1(4).
[46] Direction no. 110, para 6.
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’, including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the ‘primary considerations’ to be taken into account by the Tribunal are:[47]
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; [and]
5expectations of the Australian community.
[47] Direction no. 110, para 8.
The ‘[o]ther considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[48]
(a)legal consequences of the decision;
(b)extent of impediments if removed; [and]
(c)impact on Australian business interests.
[48] Direction no. 110, para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In his application for review, the Applicant claimed that the Reviewable Decision is wrong because the ‘[c]orrect or preferable decision is to revoke the cancellation of the visa’.[49]
[49] Exhibit R2, G2, p 12.
The Applicant’s rationale for his position is that while he concedes that the protection of the Australian community and the expectations of the Australian community weigh against revocation of the Cancellation Decision, these considerations are outweighed by the ‘countervailing considerations’ weighing determinatively, heavily or significantly in favour of revocation,[50] being:[51]
(a)the strength, nature and duration of the Applicant’s ties to Australia;
(b)the best interests of minor children;
(c)the legal consequences of the decision; and
(d)the extent of impediments if removed.
[50] Exhibit A1, [33], [37], [41], [50], [53].
[51] Exhibit A1, [6].
The Respondent, however, contended that there is not ‘another reason’ why the Cancellation Decision should be revoked because the primary considerations of the protections of the Australian community and the expectations of the Australian community weigh very heavily against revocation,[52] and outweigh the best interests of the Applicant’s minor children, the strength, nature and duration of the Applicant’s ties to Australia the legal consequences of the decision and the extent of impediments if removed.[53]
[52] Exhibit R1, [38], [53].
[53] Exhibit R1, [63].
Protection of the Australian Community
The first primary consideration at paragraph 8.1(1) of Direction no. 110, focuses on the protection of the Australian community.
Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and, to that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[54]
[54] See also Direction no. 110, para 8.1(1).
Paragraph 8.1(2) of Direction no. 110 then provides that decision-makers should also 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.
The parties agree that the protection of the Australian community consideration weighs against revocation of the Cancellation Decision. However, while the Respondent contends this consideration should be afforded very heavy weight,[55] the Applicant contends that, given the Applicant’s low risk of reoffending in a serious manner, it ought only to attract limited weight.[56]
[55] Exhibit R1, [38].
[56] Exhibit A1, [32].
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[57] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community.[58] Direction no. 110 also provides that certain other crimes or conduct are considered to be serious.[59] While there are categories of conduct to be considered very serious or serious, it does not limit the range of conduct that may be so regarded.[60]
[57] Direction no. 110, para 8.1.1(1).
[58] Direction no. 110, para 8.1.1(1)(a).
[59] Direction no. 110, para 8.1.1(1)(b).
[60] Direction no. 110, para 8.1.1(1)(a)-(b).
Paragraph 8.1.1(1) of Direction no. 110 provides:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As to the circumstances of the Applicant’s offending for which he was convicted on 11 January 2024, the Applicant gave evidence that he has ‘no idea’ why he engaged in CEM offending and can give no explanation for it. The Applicant said he had an interest in nudism but no specific interest in CEM. The Applicant said that while he feels disgusted by the CEM now, it didn’t seem real at the time he was collecting it.
The Applicant said that his feelings regarding CEM were based on curiosity, that after four years of downloading a significant amount of CEM it had become a ‘collecting obsession’ and that he sought to explain his offending behaviour by his motivation to collect.
The Applicant said that he also had a fetish for collecting rubber bands in prison, leaves which he would then draw in detail, books, and plastic bags.
As to the comment of Clinical Neuropsychologist Dr Mandy Vidovich that ‘[i]ntrusive thought processes and difficulties with impulse control (e.g., spending) were also described… His home was described as tidy but cluttered due to hoarding tendencies,’[61] the Applicant said he now identifies these risk taking behaviours as dangerous and suppresses these thoughts and impulses.
[61] Exhibit R2, G10, p 167.
The Applicant said that he now understands that the people ‘attached to those [CEM] pictures’ were being exploited and that he had no idea of this at the time of his offending. The Applicant also said that he had no idea of the legality of the CEM images.
The Applicant said that he commenced monthly counselling sessions shortly after being charged,[62] for about one year, during which time the psychologist put his offending into a context he could comprehend.[63]
[62] With Ms Helen Fowler, Clinical Psychologist. The Applicant said that a Mental Health plan devised by his general practitioners had facilitated this.
[63] See Exhibit R1, G11, pp 175-85.
The Applicant emphasised that he has high functioning Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), and dyslexia and that being so, he is not a deep thinker, he is a risk taker, he is often erratic, has unbounded curiosity and has a want and a need to collect.[64] The Applicant said this drive to collect can be managed with medication.
[64] See for example, Exhibit A2, [1], [2]
As to how he will manage the risk of reoffending with CEM, the Applicant said he was disgusted by his conduct, that he will never do it again and while he has a compulsion (to collect), he will channel it with ‘something safe’.
During cross-examination, the Applicant said in relation to the detectives having attended his home on 24 November 2022,[65] he had no recollection of where the devices containing CEM were located in his house.
[65] See Exhibit R3, TB1, pp 4-15.
As to his having stated, during the police interview, that he did not understand what CEM was, the Applicant said that while he did not recall searching for adult pornography, he did download it, but was instead searching for adult nudism. The Applicant said that in doing so he would ‘go down rabbit holes’ and this was how he came across the CEM.
The Applicant said that when he looked at or opened a link, he was not looking for anything in particular, he used Google as his search engine, and he was looking in a general sense at military history from World War I and World War II. He said that when he found a link or a site for CEM, he did not save it. The Applicant also said that as he viewed each image, he would review it and delete the ones he was not interested in.
As to him having been found to have collected the CEM for a period of four years prior to the search warrant, the Applicant said he had saved images in relation to ‘everything’, not just CEM. The Applicant said he would save the images straight onto drives. When asked why he had so many hard drives, he answered because he ‘filled them up’.
The Applicant said that he downloaded images ‘one by one’, never went back to them, had no memory of downloading the CEM, and no interest in looking at them again.
When asked about the material found where he had superimposed images to create pictures, the Applicant explained that creating one picture would take hours. He gave an example of one such image of an African child being washed by aid workers. The Applicant said that he replaced the child in the image with a ‘white skinned child…to change the narrative’.
The Applicant said that the images he would create were sometimes related to nudism, but not always. He said that he did not show these images to anyone, no one was aware that he was doing it, the images took a lot of skill to create, and that he started creating them after he separated from his ex-partner.
The Applicant claimed that, while he was aware the police found videos containing CEM, he had not been looking for such videos and does not know why he they had been downloaded.
As to the Applicant having told the police that he would download CEM whilst drunk,[66] the Applicant said that he doesn’t drink anymore, that he has not drunk since the time of the search warrant, and has ‘gone right off it’. The Applicant said that while he had signed up for alcohol or substance abuse courses, he had not had the opportunity to complete any.
[66] See [10] above.
The Applicant said that when he did drink at home, he drank ‘more than he should’. When asked why he did not discuss with Ms Fowler that he drank while downloading CEM, the Applicant said that Ms Fowler had never asked him about it and that he had answered the questions she had put to him.
When the proposition was put to him, the Applicant accepted that he had downloaded a significant amount of CEM whilst sober and that he had not been drinking when he created the pictures whereby he superimposed one image on top of another.
As to his charges for ‘possess or copy an indecent or obscene article’, the Applicant was taken to the following extract from the statement of material facts:[67]
During the review, detectives located indecent/obscene material, being 18 images and 7 videos of bestiality (penetrative sexual activity between animals and women), as well as images and videos of people being tortured, dismembered, hung, and deceased people.
…
The accused stated “I’ve got a bit of a fetish for that.” The accused stated he sometimes finds material like that sexually gratifying. The accused did not believe the images were indecent or obscene, he saw them as a form of pornography. The accused admitted to being in possession of bestiality material although he doesn’t have a particular interest in [sic].
[67] Exhibit R3, TB3, pp 75-6.
When asked to comment on this extract, the Applicant said it is not entirely correct that he has a fetish for indecent or obscene material, but rather he had a curiosity for breath control for a while and did not believe that the images were real. The Applicant said that breath control is where people hang themselves for sexual pleasure, that it was too dangerous to be real, and that he had a fetish for it but did not understand it.
As to why Ms Fowler’s report did not refer the indecent or obscene material, the Applicant said that there was no reason for it as ‘they discussed it endlessly’.
As to Ms Fowler’s record of the Applicant having indicated to her that he identified as a nudist,[68] the Applicant said that this had always been the case, and he was hypersensitive to clothing due to his neurodivergence. The Applicant said that he had purchased a subscription to a nudist magazine since he was a teenager and stopped doing so when it ‘seemed to disappear’.
[68] Exhibit R2, G11, p 181, [40].
When asked, the Applicant said that he did not know whether this magazine had become available online, that it had pictures of families naked, from children to young adults, that children’s genitalia were visible in these images and that he found ‘real people’ more alluring than models.
The Applicant said that he subscribed to a paid ‘pure nudism’ site once he separated from his ex-partner. The Applicant did not think he was still subscribed to this site, neither now nor at the time of his incarceration. The Applicant said that his ex-partner had no idea about his subscription to this site.
As to his specific contentions regarding the nature and seriousness of his conduct:
(a)The Applicant conceded he has been convicted of 22 very serious offences, which resulted in significant terms of imprisonment being imposed on him.[69]
(b)The Applicant submitted that his failure to disclose minor convictions for traffic offences on his incoming passenger cards[70] ought to be given no weight, in circumstances where the offending itself could not reasonably have resulted in him being refused entry into Australia, and where the question asked in the cards could be construed ambiguously[71] and could reasonably be considered not to refer to traffic-related convictions.[72]
(c)At hearing, the Applicant added that his non-CEM offences pale in significance compared to his CEM offences and are immaterial to the Tribunal’s decision.
[69] Exhibit A1, [20].
[70] In October 2005 and July 2010; Exhibit R2, G15, pp 201-2..
[71] That question being ‘Do you have any criminal conviction/s?’.
[72] Exhibit A1, [21].
The Respondent submitted that the Applicant’s offending should be considered as very serious because:[73]
[73] Exhibit R1, [29]-[34].
The Applicant’s offending is a sustained example of aggravated viewing of images of sexual crimes against children and must be viewed very seriously[74] and was viewed as such by the sentencing judge, being described as in the ‘upper echelon of seriousness for this type of offending.[75]
(b)The Applicant was sentenced to 22 individual terms of imprisonment… [for] a cumulative total of 24 months.[76] Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[77] The sentencing judge noted that people, such as the Applicant, who possess CEM:[78]
…who simply may be curious, or for whatever reason, can readily access by logging into their computer the vilest material that can be produced, and for these reasons…the major sentencing consideration that I must take into account when imposing a sentencing [sic] for your offending is the need for general deterrence.
(c)The impact of the offending on any victims of offending indicates this was very serious offending[79] best evidenced by the sentencing judge’s remarks that:[80]
…the number of children depicted can only be said to be regrettably significant. It must be borne in mind that every single one of the children depicted in those images and videos is in fact a victim of sexual violence and as a consequence, the number of children who have had their lives irredeemably affected as a consequence of you consuming this product is hard to fathom. Accordingly, I consider this to be a significant factor, given the number of images and children depicted in them who were victims of this offending.
(d)The cumulative effect of repeated offending also indicates that this behaviour is to be found very serious,[81] as stated by the sentencing judge:[82]
(e)Those who possess this type of material, regardless of their motivations for doing so, encourage its production, which involves and depicts the abuse, the exploitation, the humiliation and corruption of children who are vulnerable and incapable of defending themselves, and as I have already noted, the harm caused to these children is incalculable.
(f)In a very real sense, those who possess this material encourage further child abuse, and as you noted in your interview, you at the very least appear to have an appreciation of this as a concept, even though it did not deter you from committing this type of offending. What your actions have done, Mr Cargill, has demonstrated the true evil of this offending, because regrettably, as a consequence of the Internet, the availability of this type of material is readily accessible and may be obtained, possessed and distributed in digital form across the world.
(g)The Applicant has provided false and misleading information to the Department on his incoming passenger cards.[83]
[74] Exhibit R1, [30]; referring to Direction no. 110, paras 8.1.1(1)(a)(i)-(ii).
[75] Exhibit R2, G6, p 134.
[76] Direction no. 110, para 8.1.1(1)(c).
[77] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (‘Bartlett’), [43].
[78] Exhibit R2, G6, p 136.
[79] Direction no. 110, para 8.1.1(1)(d).
[80] Exhibit R2, G6, p 67.
[81] Direction no. 110, para 8.1.1(1)(f).
[82] Exhibit R2, G6, p 68.
[83] Direction no. 110, para 8.1.1(1)(g). See [80(b)] above and fn 55-57 above. The Applicant had received two convictions previously on 15 November 1990 for ‘no motor drivers license’ and ‘fail to give way to turning vehicle at terminating road’. See Exhibit R2, G4, p 39.
The Tribunal has considered the parties’ submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.
The Tribunal has regard to the fact that the CEM offences committed are clearly very serious crimes of a sexual nature,[84] against children, who are vulnerable members of the community.[85] This is the case irrespective of the 24 month sentence that was imposed.[86] This is also the view that has been taken by the Minister throughout Direction no. 110, by the sentencing judge,[87] and that has been consistently adopted by this Tribunal.[88] This aspect of the present matter is not in dispute and is properly conceded by the parties.
[84] Direction no. 110, para 8.1.1(1)(a).
[85] Direction no. 110, para 8.1.1(1)(b)(ii).
[86] Direction no. 110, para 8.1.1(1)(c).
[87] See extracts above at [80(d)].
[88] Including the former Administrative Appeals Tribunal.
The Tribunal also notes the Applicant’s traffic offending history[89] and its repeated position that driving and traffic offences are serious crimes against other road users[90] that place the lives of other road users at risk.
[89] See [12] above. Exhibit R3, TB5, pp 122-3.
[90] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1, [51]-[54] and Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32, [50]-[51], referring within to Bartlett, [43]-[45].
In considering paragraph 8.1.1(1)(b) of Direction no. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to a forced marriage,[91] whether the crimes were committed against government representatives or officials,[92] and any crime committed while in immigration detention.[93] None of the Applicant’s offending or other conduct falls within these categories, nor have the parties made any claims in this regard.
[91] Direction no. 110, para 8.1.1(1)(b)(i).
[92] Direction no. 110, para 8.1.1(1)(b)(ii).
[93] Direction no. 110, para 8.1.1(1)(b)(iv).
As to paragraph 8.1.1(1)(d) of Direction no. 110, the Tribunal has taken into account the available information as it relates to the Applicant’s CEM offending, including the sentencing judge’s remarks set out at [80(c)(iii)] above.[94]
[94] See also the Tribunal’s discussions of the impact of CEM offending on victims throughout the decision of Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3498.
The Applicant’s traffic conviction in New Zealand occurred in 1981, his fines for traffic offending being issued in 1990, and his CEM-related convictions along with those relating to indecent or obscene articles occurred in 2024.
Whilst the Applicant’s overall offending had not been particularly frequent in the Tribunal view (noting the 22 counts of CEM related to a single search from police on a single day), the Applicant’s offending is marked with a trend of increasing seriousness culminating in his offending that attracted a 24 month term of imprisonment because the nature of the offending was so serious that no other sentence in the circumstances would be justified.[95] The sentencing judge’s remarks regarding the cumulative effect of repeated CEM offending[96] further indicate the very serious nature of the Applicant’s conduct.[97]
[95] Direction no. 110, para 8.1.1(1)(e).
[96] See [80(c)(iv)] above.
[97] Direction no. 110, para 8.1.1(1)(f).
The Applicant failed to disclose his prior criminal offending on his incoming passenger cards.[98] The Tribunal notes the Applicant’s arguments at [80(b)] above regarding this factor, however there is no scope in the wording of paragraph 8.1.1(1)(g) to entertain the matters raised.
[98] Direction no. 110, para 8.1.1(1)(g).
While the Tribunal notes that the Applicant was not given a formal warning,[99] the Tribunal finds this factor plays no part in casting a favourable light on the Applicant given that he was in possession of a large amount of child exploitation material that he had acquired over a four-year period.
(a)While the cumulative gathering of this information over time did not result in numerous convictions for the Applicant over that four year period (rather, the 22 convictions were all in January 2024), it does have the effect of supporting the child exploitation market over a lengthy period.
(b)The Applicant’s sentence was issued on him as a first-time offender and involved immediate imprisonment.
[99] Direction no. 110, para 8.1.1(1)(h).
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has a significant criminal record as evidenced by the terms of imprisonment ordered, the total effective sentence imposed, and the nature of the offences committed.
Therefore, having regard to the evidence of which paragraphs 8.1.1 of Direction no. 110 are relevant, and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs very heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[100]
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[100] See also Direction no. 110, para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[101] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[102]
[101] Direction no. 110, para 8.1.2(2)(a).
[102] Direction no. 110, para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[103]
Nature of the harm
[103] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[104]
[104] Direction no. 110, para 8.1.2(2)(a).
The Applicant accepted that the nature of the harm he could cause should he reoffend by possessing child exploitation material could be serious[105] and referred to the the Full Court of the Federal Court of Australia in Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[106]
In particular it is obvious and logical that those who in some way use child exploitation material contribute to market demand for the creation of more such material. The creation of such material necessarily involves the actual abuse of children in order to photograph or film them. That could involve Australian children as a result of any such activity taking place in Australia.
[105] Exhibit A1, [23].
[106] [2021] FCAFC 196, [11].
At hearing, in the context of the nature of the harm caused by CEM offending, the Applicant added that he understands that CEM is very wrong, that people get hurt and that he only gained this appreciation a year ago.
In relation to the nature of the harm to individuals or the Australian community should the Applicant reoffend in a similar way, the Respondent contended that:[107]
(a)The nature of the harm that would be caused ‘is the fuelling of an industry causing devastating physical, psychological and emotional harm to the children who are the focus of the images’.
(b)That harm can be compounded because that material is ‘a permanent record of the depicted children’s abuse, and harm to the children is exacerbated by its circulation.’[108] As the sentencing judge correctly observed, there is a significant number of victims, and the harm caused to these children is incalculable.[109]
[107] Exhibit R1, [36].
[108] Quote from U.S. congressional bill (sec. 2(2)) - S. 295 (Reported-in-Senate).
[109] Exhibit R2, G6, p 68.
Should the Applicant commit further similar offences, this would clearly result in further very serious harm that may cause considerable and widespread physical, psychological, emotional, and economic harm to members of the Australian community.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community.[110]
[110] Direction no. 110, para 8.1.2(2)(b).
The Applicant gave evidence that he had undertaken monthly counselling sessions with Ms Fowler.[111] As for there having been periods of greater than two months at a time where he did not undergo counselling, the Applicant said that he did not know why this had been the case and perhaps Ms Fowler had been unavailable.
[111] Exhibit R2, G11, p 175. Ms Fowler’s report indicates the Applicant attended three assessment interviews and six treatment sessions, all of 60 minutes duration and all in 2023.
As to the Think First program the Applicant completed at Karnet Prison,[112] the Applicant said that this program did not cover CEM or sexual fetishes and had more to do with making decisions and understanding why you make choices.[113] The Applicant also said that he has not had counselling in relation to his ADHD specifically, for which he was diagnosed one year ago.
[112] See Exhibit A2, [5]-[7].
[113] Exhibit A2, [5].
When asked, the Applicant said he was unaware that his daughter had made an appointment for him to attend an appointment with a psychotherapist,[114] but said that if so, he would attend. The Applicant added that if the parole board or his family want him to have further treatment, he will.
[114] See Exhibit A5.
When he was taken to the passage of Ms Fowler’s addendum report that stated he:[115]
[F]ailed to disclose during assessment or treatment sessions that the CEM he had downloaded included adults sexually abusing children.
The Applicant said that he had no memory of downloading this material.
[115] R2, G11, p 186.
Regarding his risk of re-offending, the Applicant said in his statement:[116]
I have no motivation to even offend again. I had no intention of offending, in the first place. If I had known that my conduct was illegal, I would not have started, if I had found out it was illegal, I would have stopped immediately. I have a neuropathology that hard wires me to be a rule follower, a compulsive follower of rules. Mistakes are unavoidable consequence of choices, not repeating your poor choices, and thus your mistakes are how you grown and learn. This I have learned, and this is a path I will never ever take again. Not just because I have been punished, or that it is illegal, but because I know that it is wrong. I now understand that committing these sorts of offences contributes to the market for this sort of material and the victimisation of the children depicted within it.
[116] Exhibit A2, [3].
The Tribunal has considered the Applicant’s detailed submissions in support of his position that there is, at most, a low likelihood[117] that he will reoffend in a serious manner, and this being so, the weight that ought to be accorded to the protection of the Australian community is significantly diminished.[118] These submissions are:[119]
[117] Exhibit A1, [32]. Described as a ‘very low risk’ at hearing.
[118] Exhibit A1, [32].
[119] Exhibit A1, [24]-
24[He] fully cooperated with the police search of his property and made admissions about obtaining and possessing [CEM]. [He] entered pleas of guilty to all offences arising out of the search.
25[He] denied finding the [CEM] sexually appealing, an explanation that was accepted by the sentencing judge. The sentencing judge accepted that he possessed it out of curiosity but that he was, at the very least, aware that it was morally reprehensible to possess it.[120] The sentencing judge expressed doubt, but did not reject, the Applicant’s explanation that at the time of the offending he did not know it was illegal to possess [CEM].
26[He] underwent 6 treatment sessions with Ms Fowler… after he was charged but before he was sentenced.[121] The treatment sessions “focused on educating him regarding the re-victimisation that occurs for the children viewed in CEM and the coercive and abusive nature of adult behaviour toward the children to enable the CEM to be made”.[122] Although [his] deficits compromised his ability to understand the likely harm caused to victims depicted in CEM,[123] now that he has had this education he is committed to never again possessing this sort of material.
27[He] is a CEM-only offender. CEM-only offenders have demonstrated lower rates of re-offence for most measures of recidivism and there is a relatively low risk of subsequent contact offending among CEM offenders.[124] Ms Fowler opined that there was “no evidence to suggest that the Applicant is at risk of reoffending in a similar manner or that his offending is at risk of escalating to contact offending”.[125]
28[He] is now well aware of the terrible impacts of this sort of offending on the victims depicted in the CEM. He has been educated about it and is ready and willing to do any rehabilitation programmes required of him in prison or on parole. The sentencing judge accepted that he demonstrated insight into his behaviour, had a genuine desire to rehabilitate and was remorseful.[126]
29[His] first term of imprisonment can be expected to deter any reoffending. He recognises that if he were to reoffend, not only would he lose his liberty, but he would also likely lose the privilege of remaining in Australia. [His] life is in Australia, he has no connections with New Zealand or the United Kingdom.
30[He] also has a highly supportive, pro-social family. They will support him upon his return to the community and will make sure that he engages with any available counselling and support. [He] will also be able to obtain work readily given his in demand and relatively rare skill set and will have stable accommodation. All these factors are protective against reoffending.
31[He] will be eligible for parole on 8 January 2025. If granted parole, he will be subject to appropriate supervision by Adult Community Corrections until 9 January 2026.[127]
[120] See Exhibit R2, G6, pp 121-3.
[121] See Exhibit R2, G11, p 175.
[122] Exhibit R2, G11, p 182.
[123] Exhibit R2, G11, p 183, [51].
[124] Exhibit R2, G11, p 184, [56].
[125] Exhibit R2, G11, p 185, [58].
[126] Exhibit R2, G6, pp 130-1.
[127] Exhibit R2, G7, p 142. See [18] above regarding the Applicant’s parole.
At the hearing, the Applicant submitted that the likelihood of the Applicant’s reoffending is a large area of dispute, noting:
(a)other than his CEM offending, there are no other ‘character concern’ behaviours;
(b)he has an ‘unblemished’ record in the four years prior to the detectives’ search;
(c)he engaged in rehabilitation prior to being required to;
(d)alcohol played no role in his offending, rather it was incidental to it;
(e)his CEM offending stemmed from a compulsion to collect. While the images involved the sexual abuse of children, he suspects he ‘blocked this out’;
(f)his offending was borne from his curiosity and his neurodiversity informs why he engaged in this behaviour;
(g)the Respondent’s submission that the Applicant has not engaged in sufficient rehabilitation[128] is a bold submission made without evidence; and
(h)the only expert evidence available regarding the Applicant’s risk of reoffending is Ms Fowler’s report, however she has ‘no evidence to suggest that [the Applicant] is at risk of reoffending in a similar manner or that his offending is at risk of escalating to contact offending.’[129]
[128] See [108(a)] below.
[129] Exhibit R2, G11, p 185, [58].
The Respondent contended that that there remains a real risk of the Applicant reoffending, and that any risk is unacceptable, having regard to the following:[130]
[130] See Exhibit R1, [37], from which para 108 above is taken, largely without alteration.
(a)Other than the six treatment sessions he undertook with Ms Fowler in 2023, there is no evidence of any rehabilitative treatment undertaken to address the Applicant’s offending behaviour.
(b)The Applicant has indicated he has now completed a ‘Think First Course’ while at Karnet Prison, however this is insufficient in terms of rehabilitative efforts.
(c)There is no evidence of ongoing counselling despite the Applicant’s daughter’s position that ‘[h]is continued presence in our lives is contingent upon him continuing counselling, working on his mental and physical health, positively contributing to the community, and on him never reoffending’.[131]
[131] Exhibit R2, G12, p 192.
(d)The highest that Ms Fowler’s assessment of the Applicant’s risk as a CEM only offender can be taken is as follows:[132]
[132] Exhibit R2, G11, pp 184, [55]-[56].
Online sex offenders have been categorised into three categories; child exploitation material (CEM) only offenders, online solicitation offenders, and contact offenders who also possess CEM. For CEM-only offenders, there is currently no validated risk assessment tool available to assess the risk of online solicitation offenders.… The research suggests that [the Applicant] has a low risk of re-offending compared to contact offenders and is unlikely to progress to contact offending.
(e)The Applicant attended a neuropsychological assessment to explore the presence of a neurodevelopmental condition, namely ASD, in September 2023.[133] Ms Fowler notes that the Applicant’s diagnosis of ASD ‘may have led him to be “curious” about the children’s behaviour’.[134] Ms Fowler provides the following observations about the Applicant’s ASD and how it impacts upon his offending:[135]
[133] Exhibit R2, G10, p 165.
[134] Exhibit R2, G11, p 183, [49].
[135] Exhibit R2, G11, p 183.
50Literature regarding people with ASD has identified that a characteristic of the disorder is the presence of “unbridled curiosity.” This provides some explanation for his focus on “hunting” for hard-to-find or obscure material and that material being CEM. [The Applicant] has also identified having a longstanding, non-sexual interest in nudism and nudist magazines. It is reasonable to suggest, therefore, that [his] exposure to nudist material and lifestyles has desensitised him to seeing children naked.
51[The Applicant’s] ASD explains his lack of empathy towards the children in the CEM, and as he asserted “lack of disgust” at the CEM. Mentalising (also called theory of mind) is the ability to explain, predict, and interpret behaviour by attributing metal states such as desires, beliefs, intentions, and emotions to oneself and to other people. Research in the area of ASD proposes that individuals with ASD do not have theory of mind. Mr Cargill’s inability to be empathic and what he termed “disgusted” by the CEM is explained by his ASD and the compromised ability for empathic understanding that is considered an element of ASD. This means that, at the time of his offending, he had a compromised ability to understand the likely experience of the victims contained within the CEM images and the physical and psychological discomfort they experienced when the CEM was created.
(f)The Applicant has explained his behaviour as occurring in the context of him ‘being motivated to collect the images’[136] and that he has become ‘a collector which often causes you to go down what has been described as a rabbit hole’.[137] The Applicant described going down these rabbit holes because he was ‘a bit obsessive’.[138] The Applicant has stated that ‘I love to collect all sorts of images, to complete sets, this is part of my neurodiversity. I have an insatiable undaunted curiosity and a drive to see what is next’.[139] The Applicant has not taken steps to address these compulsive traits following his diagnoses of ASD and the Tribunal is therefore unable to be satisfied the Applicant will not return to this offending.
(g)In relation to the three counts of ‘possess or copy an indecent or obscene article’ which the Applicant was convicted of in the Rockingham Magistrates Court on 22 March 2024, the Applicant has candidly accepted that he had a sexual fetish in relation to this type of imagery.[140] This aspect of the Applicant’s offending was not addressed by Ms Fowler in her reports.[141]
(h)The Applicant notes that ‘anything that is morally reprehensible I would turn away from’.[142] This is contradictory to the comments made by the Sentencing Judge for the ‘possessing child exploitation material’ offending:[143]
There could have been no doubt to you either that, in relation to pictures of dead bodies and people hanging, whether or not possession of those items were illegal, it was certainly morally reprehensible to possess. That fact must have been evident to you. Despite that, you retained those images for your own sexual gratification.
…your candid admissions regarding your possession of these pictures of dead bodies and people hanging for your own sexual gratification perhaps illustrates your attitude generally towards possessing material that is morally questionable in circumstances where it provides you with some benefit, whether that is satisfaction of your own sexual needs in relation to mortuary imagery or whether it is satisfaction of your own curiosity in relation to the child exploitation material.
(i)One of the reasons as to why he collected a lot of the CEM images of seven to 14 year old female children was ‘because it’s available’ and that he had first looked for the material because it had ‘piqued [his] curiosity’.[144] He further notes that he ‘made no attempt to look for anything in particular on any given day I would just see what would come my way’.[145] The Applicant’s ability to return to this type of offending is heightened in circumstances where this interest can be satisfied merely through the use of technology, as noted by the sentencing Judge:[146]
What your actions have done, Mr Cargill, have demonstrated the true evil of this offending, because regrettably, as a consequence of the Internet, the availability of this type of material is readily accessible and may be obtained, possessed and distributed in digital form across the world.
[136] Exhibit R2, G11, p 177, [11].
[137] Exhibit R2, G6, p 58.
[138] Exhibit R2, G6, p 51.
[139] Exhibit A2, [1].
[140] Exhibit R2, G6, p 55.
[141] Exhibit R2, G6, p 99.
[142] Exhibit A2, [7].
[143] Exhibit R2, G6, p 55.
[144] Exhibit R2, G11, p 177, [11].
[145] Exhibit A2, [1].
[146] Exhibit R2, G6, p 68.
The Respondent further submitted at hearing that while the Applicant has the best of intentions, he presents with a real risk of reoffending without targeted counselling. The Respondent noted that the Applicant has been unable to seek treatment for his ADHD prior to now and there is no evidence as to what impact the Applicant’s ADHD has had on his offending. The Respondent added that by the Applicant’s own evidence, he is a risk taker, a dopamine chaser, has a drive to collect, and has difficulty with impulse control.
The Respondent emphasised that the six treatment sessions the Applicant had with Ms Fowler focused on ‘educating him regarding the re-victimisation that occurs for the children viewed in CEM and the coercive and abusive nature of adult behaviour toward the children to enable the CEM to be made.’[147] The Respondent submitted that while the Applicant’s position is that aspects of his offending relating to his neurology (such as his drive to collect and his difficulty with impulse control) has been treated, Ms Fowler’s counselling sessions were not designed for this and his underlying issues and compulsive traits are yet to be treated.
[147] Exhibit R2, G11, p 182, [46].
The Respondent also stated that the only other rehabilitation course completed by the Applicant is the Think First course,[148] which does not address CEM, sexual fetishes or aspects relating to the Applicant’s neurological diagnoses.
[148] See Exhibit A2, [5].
The Respondent concluded its submissions on the Applicant’s risk of reoffending by offering the view that the Applicant’s interest in nudism has blurred the line for what is appropriate. The Respondent reiterated that the Applicant said he would now turn away from anything morally reprehensible, adding that the Applicant’s understanding of what is morally reprehensible is not clear cut.
The Tribunal has considered the available evidence and the parties’ submissions and makes the following comments and findings:
(a)Briefly, given the significant risk of harm from driving and traffic offending, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community in general.
(b)Regarding the likelihood of the Applicant offending by possessing CEM in the future, the Applicant is asking the Tribunal to adopt his view that the key question in relation to his risk of reoffending is whether the compulsive collection of CEM has been sufficiently dealt with and, in turn, the Tribunal accepts the Applicant’s submission that it has, through his counselling sessions with Ms Fowler, and the completion of the Think First program. This is on the basis of the Applicant maintaining that his compulsion to collect is a general compulsion fuelled by curiosity and there is no evidence that he would continue to collect CEM specifically.
(c)The Applicant is also asking the Tribunal to accept that he did not have a normal or typical reaction of disgust to the CEM, not to say the Applicant didn’t know that his conduct was wrong, but more that his lack of empathy and disgust precipitated his offending (as opposed to, for example a deviant sexual interest in children, noting the sentencing judge did not make such a finding).
(d)The Applicant was, in the Tribunal’s view, unable to give compelling evidence as to why he collected CEM.
(e)As the Tribunal understands it, the Applicant’s view is that it does not matter that the Respondent considers that his rehabilitation efforts to date are insufficient or that his insight into his offending is incomplete, because the Applicant understands his offending conduct was harmful, he can redirect his compulsion elsewhere and he is aware of the consequences if he does not. This is borne from the Applicant’s view that the specific rehabilitative need to be addressed is his compulsion to collect.
(f)In the Applicant’s view, he has undergone sufficient counselling for his underlying issues, those issues being lack of empathy for victims and lack of knowledge regarding the production and collection of CEM and their being addressed by counselling and a course, both with an educational focus.
(g)The Tribunal accepts that the Applicant has made the effort to educate himself regarding the consequences of his conduct. However it shares the Respondent’s concerns as to the sufficiency of these efforts as it relates to risk, given the absence of rehabilitation targeting the Applicant’s compulsive behaviour, being an aspect of his offending that requires targeted intervention. Similarly, this is borne from the Respondent’s differing view that the rehabilitative need to be addressed (which has not been to date) is the neurological processes that drive his compulsion to collect CEM.
(h)The Tribunal also notes what it considers are the limitations of Ms Fowler’s reports in circumstances where Ms Fowler’s opinion regarding risk is that the Applicant has ‘a low risk of re-offending compared to contact offenders and is unlikely to progress to contact offending’.[149] This leaves the Tribunal in a position where it has no expert opinion regarding the Applicant’s risk of reoffending in a similar manner, should he again possess CEM.
(i)The Tribunal accepts that the Applicant is genuinely remorseful for his offending conduct, and that his desire to be reunited with his family, including his children and grandchildren, and participate in family life in the future, including resuming being an involved grandparent, serves as a deterrent to some extent.
(j)The Tribunal also accepts the Applicant appreciates he has a continued need for rehabilitation, albeit potentially requiring further analysis as to his treatment needs[150] and would willingly participate in such measures as required by the authorities or as arranged by his family.
(k)Ultimately, the Tribunal is still left in a position where it is without an expert opinion regarding the likelihood of the Applicant refraining from possessing CEM in the future.
[149] Exhibit R2, G11, p 184, [56].
[150] See [113(e)] and [113(g)] above.
In light of the above, the Tribunal is of the opinion there is a real risk that the Applicant will reoffend in a similar manner and that the presence of any such risk is unacceptable.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community weighs very heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
At the hearing, the Applicant said he has no family or friends still living in New Zealand (or the UK) and would have no support if removed to either place. The Applicant indicated he intends to return to New Zealand if removed.
In his statement, the Applicant said:[212]
I have no family at all that I have had any contact with, I will not have my family support network, I will not have any work contacts and as such I will be disadvantaged in getting qualified and getting work, all of these factors will certainly serve to make my neurodiversity’s [sic], intellectual disabilities, even more of a handicap than they are already. I need my family to help me make sense of the world to put things into perspective for me to give me a broader world view, otherwise I can end up down some strange rabbit holes in some strange places, as my family give me my frame of reference [sic] I see the world very differently from the norm, and my family help me to see the world in a more normal light [sic] I’m not wrong it’s just that my world view is sometimes far too narrow, black and white, over simplified. I don’t comprehend some of the broader aspects of things. I am also far too generous for my own good some of the time.
[212] Exhibit A2, [15].
The Applicant submitted that the extent of impediments if removed consideration ought to weigh heavily in favour of revocation of the Cancellation Decision because:[213]
51The Applicant is now 64 years old. He has diagnoses of dyslexia, ADHD and autism. His former partner still helps to manage his day-to-day life. He has no family, or at least no significant family, residing in New Zealand.
52The Applicant has difficulty developing and maintaining relationships, is subject to generalised anxiety and stress throughout the day, and subject to extreme discomfort, stress and anxiety when outside his usual routine. If removed to New Zealand, it is likely that he would become entirely socially isolated and suffer a deterioration in his mental and physical health due to increased stress and anxiety.
53It would be extremely difficult for him to establish himself in New Zealand and maintain basic living standards.
[213] Exhibit A1, [51]-[53].
The Applicant gave oral evidence that, other than his ADHD, ASD, and dyslexia, he is in good health. The Applicant submitted at hearing that if returned to New Zealand, it is likely he would become socially isolated.
The Respondent accepts that the extent of impediments consideration weighs in favour of revocation of the Cancellation Decision, but submitted that it does not outweigh the primary considerations weighing against revocation,[214] relying on the following matters in support of its position:[215]
58…[the Applicant] is 64 years old. He has been diagnosed with dyslexia, ADHD and Autism (ASD).[216] He also suffers from high blood pressure for which he is medicated.[217] He has allergies to cigarette smoke.[218]
…
60As a citizen of the [sic] New Zealand, he would have the same access to social, medical and economic support as other citizens.[219] New Zealand is culturally, linguistically and politically similar to Australia. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[220]
61The Applicant’s representative submits that the Applicant would have extreme difficult in his ability to re-establish himself in New Zealand. The Applicant notes in his updated statement that he has no family support or work contacts in New Zealand. The Minister contends that although the Applicant may face some difficulty in establishing and developing the necessary relationships and networks to be able to obtain appropriate supports upon his return, these are temporary issues and would not preclude his resettlement.[221]
[214] Exhibit R1, [62].
[215] Exhibit R1, [58]-[61].
[216] Exhibit R2, G9, p 162; G10, p 172.
[217] Exhibit R2, G9, p 162.
[218] Exhibit R3, TB4, p 97.
[219] Direction no. 110, para 9.2(1)(c).
[220] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
[221] In this regard, the Tribunal notes Ms Day’s evidence that she would assist him with settling in and finding housing if that became necessary.
As noted above, the Applicant is 64 years old. The Tribunal accepts the Applicant has ADHD, ASD and dyslexia and the evidence regarding his obsessive-compulsive tendencies, which are yet to be considered by an expert treatment provider. The Tribunal also accepts that the Applicant intends to continue with counselling. There is no evidence that whatever treatment the Applicant may require in the future would not be available to him in New Zealand.[222]
[222] Direction no. 110, para 9.2(a).
Having lived in New Zealand as a child and young adult, there is no evidence before the Tribunal that any language or cultural barriers exist in New Zealand should the Applicant be removed.[223]
[223] Direction no. 110, para 9.2(b).
The Tribunal accepts that the Applicant has no family connections in New Zealand, that he has retained no social connections with any friends or other contacts in New Zealand, and that his support network is entirely in Australia.[224]
[224] Direction no. 110, para 9.2(c)
While the Applicant may encounter some difficulties establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, if he were to return to New Zealand, the Tribunal regards these difficulties as temporary.[225]
[225] Direction no. 110, para 9.2(c).
The Tribunal also accepts, however, that the Applicant’s removal, in particular his separation from Ms Day, his children, and grandchildren would see him face emotional and psychological hardship.[226] If removed, the Applicant could maintain family contact by electronic means (although this is not his preference). The Tribunal accepts that other than Ms Day’s willingness to travel to New Zealand to assist the Applicant to settle, his family is without the financial means to visit him in New Zealand and this would have a significant impact on the emotional wellbeing for all concerned. Given the Applicant’s day to day challenges as described by him,[227] the Tribunal accepts this impact would be far greater for him than someone who does not face such challenges.
[226] Direction no. 110, para 9.2(c).
[227] See [163]-[164] above.
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
1Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact Australian business interests.
There is also no evidence the Applicant is involved in the delivery of a major project or important service in Australia.
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[228]
[228] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[229] While the Court was considering Direction No. 90, it’s observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation decision should be revoked.[230]
[229] [2023] FCAFC 138 (‘CRNL’).
[230] CRNL, [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation of the Cancellation Decision and affords the consideration very heavy weight in the Applicant’s circumstances.
The consideration of family violence was irrelevant in the Applicant’s case and weighs neutral.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds heavy weight should be afforded that consideration in the Applicant’s case.
The Tribunal found that the best interests of minor children consideration weighs in favour of revocation and affords this consideration moderate weight.
The expectations of the Australian community consideration weighs against revocation and the Tribunal finds this consideration should be afforded heavy weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision consideration weighs neither for nor against revocation for the reasons given. The extent of impediments if removed consideration weighs moderately in favour of revoking the cancellation of the Applicant’s visa. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
Having weighed the considerations, the Tribunal finds that:
(a)The first primary consideration weighs very heavily against revocation of the Cancellation Decision.
(b)The fifth primary consideration weights heavily against revocation of the Cancellation Decision
(c)The third primary consideration weighs heavily in favour of revocation of the Cancellation Decision.
(d)The best interests of minor children consideration and the extent of impediments if removed consideration each weigh moderately in favour of revocation of the Cancellation Decision.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case.
The Tribunal also emphasises that the considerations are not hierarchical; ‘one or more primary considerations may outweigh other primary considerations’.[231]
[231] Direction no. 110, para 7(3).
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied that the circumstances of the Applicant’s case warrant the very heavy and heavy weight placed on the first and fifth primary considerations, respectively. Those circumstances being:
(a)the serious view taken by the Australian Government and the Australian community in relation to sexual crimes generally, and in particular, crimes of a sexual nature against children;[232] and
(b)that the Australian community expects the Australian government to cancel visas of those persons who do not obey Australian laws.[233]
[232] Direction no. 110, para 8.1.1(a).
[233] Direction no. 110, para 8.5.
Therefore, while the considerations weighing in favour of revocation of the Cancellation Decision outnumber those weighing against revocation, the Tribunal is satisfied that the heavier weight afforded to the first and fifth primary considerations give the result that they carry, overall, greater weight than the considerations weighing in the Applicant’s favour.
In summary, having regard to all of the primary considerations, and other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 6 November 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 199 (one hundred and ninety nine) paragraphs are a true copy of the reasons for the decision herein of General Member L M Gallagher
........[SGD]...............................................................
Associate
Dated: 30 January 2025
Date of hearing: 6 & 7 January 2025 Solicitors for the Applicant: Mr Hamish Glenister, William Gerard Legal Solicitors for the Respondent: Mr Jarvis Kirstenfeldt, Sparke Helmore ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from a Check Results Report by the Australian Criminal Intelligence Commission run on 14 June 2024, a Conviction History Report by New Zealand Police run on 17 June 1960, and a History for Court Report by the Western Australian Police Force compiled on 20 November 2024.
| Conviction Date | Court | Offence | Offence Date(s) | Court Result | |
| 1. | 22 March 2024 | Rockingham Magistrates Court | Possess or copy an indecent of obscene article | 24 November 2022 | $2500 fine (global) |
| 2. | 22 March 2024 | Rockingham Magistrates Court | Possess or copy an indecent or obscene article | 24 November 2022 | $2500 fine (global) |
| 3. | 22 March 2024 | Rockingham Magistrates Court | Possess or copy an indecent or obscene article | 24 November 2022 | $2500 fine (global) |
| 4. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 5. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 9 months cumulative |
| 6. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 7. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 12 months concurrent |
| 8. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 6 months cumulative |
| 9. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 10. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 12 months concurrent |
| 11. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 12 months concurrent |
| 12. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 9 months cumulative |
| 13. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 14. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 15. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 16. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 17. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 18. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 19. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 20. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 21. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 12 months concurrent |
| 22. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 23. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 8 months concurrent |
| 24. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 3 months concurrent |
| 25. | 11 January 2024 | Perth District Court of Western Australia | Possessing child exploitation material | 24 November 2022 | Reportable Offender Destruction Order Imprisonment: 12 months concurrent |
| 26. | 15 November 1990 | Fremantle Court of Petty Sessions | Fail to Give Way to Turning Vehicle at Terminating Road | 31 May 1990 | $75 fine |
| 27. | 15 November 1990 | Fremantle Court of Petty Sessions | No Motor Drivers Licence | 31 May 1990 | $50 fine NZ MDL |
| 28. | 30 July 1981 | Hawera DC | Failing to Pay Speeding Infringement Fee | 4 April 1981 | $9 fine |
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