Collinson and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 206
•6 February 2025
Collinson and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 206 (6 February 2025)
Applicant:Ashley Liam Collinson
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9389
Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date of Decision: 6 February 2025
Date of Reasons: 7 March 2025
Decision:The Tribunal sets aside the decision made by the delegate of the Respondent on 14 November 2024 to cancel the Applicant’s visa and substitutes a decision that the Applicant’s visa is not cancelled.
…………[Sgd].....................
General Member Cosgrave
Catchwords
MIGRATION – Class BB Subclass 155 Five Year Resident Return visa cancellation –- failure to pass good character test – whether there is another reason to set aside the visa cancellation – convicted of Use carriage service to access child pornography material and Use carriage service to offend – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION
Mr Collinson seeks review of the Minister’s (the Minister or the Respondent) delegate’s 14 November 2024 decision to cancel his Class BB Subclass 155 Five Year Resident Return visa (the Visa).[1]
[1] Exhibit G1: G3, 20.
The hearing was held in Brisbane on 28 and 29 January 2025. Ms Graziotti of Estrin Saul Lawyers represented Mr Collinson. Mr Vines of counsel, instructed by Ms Rezae of Sparke Helmore Lawyers, represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 6 February 2025. On 6 February 2025, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
THE FACTS OF THE MATTER
Mr Collinson is a thirty-six-year-old[4] United Kingdom citizen who has resided in Australia since March 2004.[5]
[4] Exhibit G1: G20, 246.
[5] Exhibit G1: G4, 112.
On 12 July 2011 Mr Collinson pled guilty and was convicted of Use carriage service to access child pornography material and Use carriage service to offend (the Index Offences). His Honour Judge Stone of the Western Australian District Court sentenced Mr Collinson to concurrent suspended terms of twelve months’ imprisonment for the Index Offences.[6] Mr Collinson was released immediately after entering into a recognizance release order that required him to be of good behaviour for eighteen months. The order was secured by Mr Collinson making a $5,000 payment and with the requirement that he comply with certain conditions, including treatment and counselling.[7]
[6] Exhibit G1: G4, 39.
[7] Exhibit G1: G5, 67–68.
On 29 October 2013 the Respondent granted Mr Collinson a Class BB Subclass 155 Five Year Resident Return visa.[8]
[8] Exhibit G1: G8, 74.
On 5 October 2017 the Western Australian Sex Offender Management System (SOMS) sent details of the index offences to the Australian Border Force.[9]
[9] Exhibit G1: G7, 72–73
On 12 July 2019 Mr Collinson was deregistered from the National Child Offender System after the expiry of his Reportable Offender requirements.[10]
[10] Exhibit G1: G7, 73.
On 23 March 2020 Mr Collinson received a Notice of Intention to Consider Cancellation (NOICC) under s 501(2) of the Act.[11] On 28 April 2020, his then representatives responded to the NOICC with a response that incorporated Dr Watts’ 14 April 2020 report.[12]
[11] Exhibit G1: G8, 74.
[12] Exhibit G1: G13, 138.
On 17 September 2020, Mr Collinson’s partner, Ms Nascimento, applied for a Partner (Class UK) (subclass 820)/(Class BS) (subclass 801) visa. On 21 September 2020 Mr Collinson submitted his sponsorship application in relation to Ms Nascimento’s application.[13]
[13] Exhibit G1: G16, 193.
On 6 May 2020 the Respondent granted Ms Nascimento a Partner (subclass 820) visa.
On 30 June 2022 the Respondent granted Mr Collinson the Visa.
On 24 April 2024 the Respondent sent Mr Collinson a second NOICC because the visa referred to in the 23 March 2020 NOICC had ceased and Mr Collinson had been granted the Visa.[14]
[14] Exhibit G1: G3, 16.
On 22 May 2024 and 11 June 2024 Mr Collinson made representations and provided responses to the second NOICC.[15]
[15] Exhibit G1: G3, 16.
On 14 November 2024 his Visa was cancelled under s 501(2) and s 501(6)(e) (the reviewable decision).[16]
[16] Exhibit G1: G3, 23.
On 15 November 2024 Mr Collinson lodged an application with the Tribunal for review of the delegate’s decision.[17]
[17] Exhibit G1: G2, 4.
THE LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and s 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[18] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[19] or
(ii)there is another reason why the original decision should be revoked.[20]
[18] Pursuant to s 501CA(4)(a) of the Act.
[19] Pursuant to s 501CA(4)(b)(i) of the Act.
[20] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Collinson made the representations required by s 501CA(4).[21]
[21] Exhibit G1: G1 & G2.
THE TRIBUNAL’S TASK
Mr Collinson’s Visa was cancelled on the basis that he had failed the character test once the delegate considered the character test, defined in s 501, as required under s 501CA(4)(b)(i). The Tribunal is satisfied, based on its own assessment of his criminal record, that he does not pass the character test articulated in s 501(6).[22]
[22] Exhibit G1: G6.
Section 501CA(4) specifies the Tribunal’s task.[23] When assessing and considering the factors weighing for and against whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to follow Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[24]
[23] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[24] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[25]
[25] Direction; [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision‑maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction specifies the following primary considerations:
(1) the protection of the Australian community from criminal or other serious conduct.
(2) whether the conduct engaged in constituted family violence.
(3) the strength, nature and duration of ties to Australia.
(4) the best interests of minor children in Australia.
(5) the expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
(a)the legal consequences of the decision.
(b)the extent of impediments if removed.
(c)the impact on Australian business interests.
The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting.[26] The weighing process is substantively left to the individual decision‑maker exercising the relevant power under s 501 of the Act.[27]
[26] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[27] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A.’ The Tribunal also heard testimony from Mr Collinson, his former spouse Ms Enderby, Dr Watts and Mr Collinson’s current partner, Ms Nascimento.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1, the Tribunal is directed to bear in mind that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal has considered the nature and seriousness of Mr Collinson’s conduct to date.
Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision‑makers to consider two limbs of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.
Paragraph 8.1.1: The Nature and Seriousness of Mr Collinson’s Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess in considering the nature and seriousness of Mr Collinson’s criminal offending or other conduct to date.
The Index Offences are described in the written evidence.[28]
[28] Exhibit G1: G4 & G5.
Summarising Mr Vines’ contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[29]
(a)Mr Collinson was found to have deliberately accessed child pornographic stories over a five-month period (June to November 2010) and also discussed fantasies involving children with a prostitute. These actions resulted in concurrent 12‑month imprisonment sentences for the Index Offences, as determined by His Honour Judge Stone in the Perth District Court.
(b)The Respondent emphasises the gravity of child pornography offenses, which are considered especially serious by both the courts and legislature. Mr Collinson’s conduct is deemed particularly severe as it involved sustained viewing of child pornography at “the highest end of seriousness,” specifically stories depicting penetrative sexual activity between adults and children.
[29] Exhibit R1: [23]–[29].
Summarising Ms Graziotti’s contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[30]
[30] Exhibit A1: [49]–[57].
(a)Mr Collinson committed the first Index Offence between 9 June 2010 and 5 November 2010, and the second Index Offence in the period of 25 October to 1 November 2010. He has not engaged in any similar or otherwise illegal behaviour since then.
(b)In July 2011, he was convicted and sentenced for the Index Offences after making partial admissions to police and entering guilty pleas at an early stage in proceedings. His Honour Judge Stone, who presided over the sentencing, determined that the community’s interests would be best served by imposing a suspended term of imprisonment rather than an immediate custodial sentence.
(c)Dr Watts’ 2020 report[31] observed that “It is noted that 10 years later, there is no evidence to indicate there has been any flow-on effects.” This assessment remains valid 14 years after the commission of the offenses, as there continues to be no evidence indicating any flow-on effects from Mr Collinson’s conduct.
(d)The record indicates that the applicant did not serve any custodial sentence, was granted bail with which he fully complied, has no other convictions and there is no evidence suggesting that he has been a perpetrator of family violence. He successfully fulfilled the conditions of his suspended imprisonment order and complied with the SOMS requirements until these obligations were discharged in July 2019.
(e)There is no evidence that Mr Collinson has caused a person to enter a forced marriage or committed offenses against government representatives or officials.
(f)He did not commit any offenses while in immigration detention and has never been incarcerated.
(g)With no further convictions on his record, there is no discernible trend of increasing seriousness, frequency of offending or cumulative effect of repeated offending to consider.
(h)The evidence does not indicate that Mr Collinson has provided false or misleading information to the Respondent.
(i)He has never received a formal warning and has no criminal history in any other country.
(j)Notably, his convictions were properly declared both in his Resident Return Visa (RRV) applications and in his sponsorship form supporting Ms Nascimento’s Partner visa application.
(k)While Mr Collinson acknowledges that the seriousness of his offending must weigh in favour of visa cancellation, he contends that this is essentially the only factor that does so, and that it is insufficient to outweigh other factors favouring setting aside the reviewable decision.
(l)Mr Collinson contends that, in light of his demonstrated remorse, absence of other criminal history, youth at the time of offending, objective risk assessments, extended period in the community without reoffending, current life circumstances, ties to Australia and the best interests of children, the consideration regarding the seriousness of his past offending is outweighed by these countervailing factors.
[31] Exhibit G1: G14, 142–145.
The Tribunal’s consideration: The nature and seriousness of Mr Collinson’s conduct
When assessing the nature and seriousness of Mr Collinson’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·the enumerated criminal offending or other conduct to date that are viewed very seriously by the Australian government and the Australian community;[32]
·the sentences imposed for his criminal offending;[33]
·the impact of his offending or other conduct on any of its victims and their family, where information in this regard is available and where Mr Collinson has been afforded procedural fairness;[34]
·the frequency of his offending and the trend of increasing seriousness;[35] and
·the cumulative effect of his repeated offending.[36]
[32] Direction: [8.1.1(1)(a)].
[33] Direction: [8.1.1(1)(c)].
[34] Direction: [8.1.1(1)(d)].
[35] Direction: [8.1.1(1)(e)].
[36] Direction: [8.1.1(1)(f)].
The Tribunal, after assessing the evidence and the parties’ claims and arguments, considers that Mr Collinson’s Index Offences can be considered under Paragraph 8.1.1(1)(a)(i) to be sexual crimes and crimes of a sexual nature under Paragraph 8.1.1(1)(a)(ii).[37] This suggests that Mr Collinson’s Index Offences should be viewed as very serious after applying Paragraphs 8.1.1(1)(a)(i) and (ii).
[37] See also Direction: Annex A, Section 2[7(2)(c) and (e)]
Regarding the sentence imposed on Mr Collinson, the sentencing judge stated that:[38]
[38] Exhibit G1: G5, 66–67.
I am required to impose a sentence commensurate with the seriousness of the offence. In sentencing you, I take account of the nature and gravity of your offending as well as the statutory maximum penalty in relation to it, the circumstances of the commission of the offences, and the mitigating factors. A court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any one of the less severe options available.
A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community otherwise requires it. I must have regard to the purposes of imposing punishment; to punish you and to deter both you and others from committing offences in the future.
In assessing the facts and the extent of your culpability in this offending, I bear in mind and I accept that your actions concerning the prostitute were fantasy. However, your conduct involved fantasies about sex with children and you accessed material that concerned stories about sex with children over a five‑month period, and your conversation with the prostitute was over several days.
I bear in mind that some of the material you accessed constituted child pornography at the highest end of seriousness, and that is the penetrative sexual activity between adults and children. There were some 12 stories about there. Some of the stories describe child abduction and rape, whilst others include sexual penetration of babies, and there was also a story that involved a child and bestiality.
I accept the Commonwealth’s submissions that the presentence report and the pre-sentence psychological report indicate that you lacked insight and minimised your offending behaviour by stating that you were pleading guilty because of the financial costs associated with a not guilty plea, attributing blame to the complainant, denying that you intentionally accessed child pornography, and denied having a sexual interest in children.
…
I accept that no actual children were used in the production of the child pornography stories is a relevant matter in the assessment of the objective seriousness of these offences.
…
In all the circumstances, after having revisited all relevant factors, it seems to me that both your interests and the interests of the community generally are best served if I sentence you to 12 months’ imprisonment suspended from today’s date and for you to be released forthwith on entering into a recognizance release order to be of good behaviour for 18 months, and upon your giving security by recognizance in the sum of $5,000. The recognizance release order will also be subject to the condition that you will be subject to the supervision of a probation officer appointed in accordance with the order.
Now this may require you to undergo assessments and treatments by a medical practitioner, psychiatrist, psychologist or social worker and also undergo treatment in relation to your apparent sexual interest in children. In imposing this sentence I have had particular regard to the prospect of rehabilitation, taken together with the personal deterrents provided by the threat of activation of the suspended sentence.
Considering the above solely in terms of Paragraph 8.1.1(1)(c), the Tribunal considers that this paragraph supports a finding that Mr Collinson’s offending was viewed instead as serious rather than ‘very serious’ as Paragraphs 8.1.1(1)(a)(i) and (ii) would indicate. The Tribunal notes the substantial mitigating factors cited by the sentencing judge which led to the imprisonment’s immediate suspension. Considered in terms of Paragraph 8.1.1(1), the sentencing judge’s reasoning significantly tempers Paragraph 8.1.1(1)(a)(i) and (ii)’s combined indicative categorisation of the offending being ‘very serious.’
The sentencing decision assists in considering the impact of Mr Collinson’s offending under Paragraph 8.1.1(1)(d). Addressing the first Index Offence, Mr Collinson accessed child pornography fiction. Addressing the second later Index Offence, Mr Collinson did not and does not have a niece despite telling the sex worker he was talking to that he did have a niece. The sentencing comments express the point that the sex worker may not have been offended.[39] The sentencing judge observes:[40]
I accept that no actual children were used in the production of the child pornography stories is a relevant matter in the assessment of the objective seriousness of these offences. However, as the Commonwealth has submitted in their submissions, there remains a high level of criminality in written works of child pornography, given that the production of fictitious works describes acts of depravity involving children have flow-on effects, including the promotion of the child pornography industry and stimulating the tendencies of individuals.
[39] Exhibit G1: G5, 54, lines 1–30.
[40] Exhibit G1: G5, 64.
The Tribunal considers that there was no specific victim of Mr Collinson’s Index Offences, but rather a group of potential victims and that this group of potential victims is so large as to diffuse the possible impact of Mr Collinson’s offending.
From a consideration of the evidence in terms of Paragraph 8.1.1(1)(e), the Tribunal finds that there is no frequency to Mr Collinson’s offending, nor is there any discernible trend of increasing seriousness as the Index Offences are of equal seriousness.
Addressing Paragraph 8.1.1(1)(f), Mr Collinson’s offending was not repeated so there is no cumulative effect.
Paragraphs 8.1.1(1)(g) and (h) are not enlivened on the evidence before the Tribunal.
The Tribunal’s finding: The nature and seriousness of Mr Collinson’s conduct.
The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in Paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Mr Collinson’s offending, the Tribunal finds that it should be characterised as serious.
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Summarising the relevant portion of Paragraph 8.1.2 of the Direction:
(a)In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·Evidence of how likely they are to re-offend.
·Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)The objective is to carefully weigh the seriousness of the possible harm if the non-citizen re-offends, the likelihood of their re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Mr Collinson to engage in further criminal or other serious conduct, the Tribunal has considered the evidence, testimony and the parties’ submissions in relation to Paragraph 8.1.2. The Tribunal in particular has considered the sentencing judge’s decision.
Summarising Mr Vines’ contentions on this point as the Tribunal understands them:[41]
(a)The Respondent argues that there is inherent harm in accessing child exploitation material.
(b)The Respondent acknowledges the established legal principle that possession of child pornography material, even in the form of stories or drawings, is not a victimless crime.
(c)The Respondent further contends that there is a potential for harm associated with the risk of Mr Collinson’s conduct escalating beyond the possession of the fictitious child exploitation material to actions in the real world involving real children.
[41] Exhibit R1: [31]–[34].
Summarising Ms Graziotti’s contentions on this point as the Tribunal understands them:
(a)Regarding the nature of potential harm, there is no evidence indicating that any person in the Australian community was harmed by Mr Collinson’s conduct or was at risk of harm. However, it is acknowledged that should Mr Collinson re-offend in a similar manner to the original offenses, it could potentially result in psychological damage to members of the Australian community.
The evidentiary details of Mr Collinson’s Index Offences supports the Tribunal inferring that there may be indeterminate psychological harm to unidentified members of the Australian community if Mr Collinson re-offended in a similar fashion to his Index Offences in the future.
Without further evidence supporting the Respondent’s claims of the offending escalating at the time of the Index Offences and the potential for future harm to real children because of this escalation, the Tribunal does not consider it can accept the Respondent’s suggestions that (a) Mr Collinson’s offending behaviour was escalating at the time of the Index Offences and that (b) because of this, there is the potential for harm associated with the risk of Mr Collinson’s conduct escalating.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Collinson to engage in further criminal or other serious conduct
If Mr Collinson is permitted to remain in Australia, the Tribunal finds that any future repetitions of criminal or serious conduct of the type that Mr Collinson has previously engaged in could result in indeterminate psychological harm to members of the Australian community.
The Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
Assessing the likelihood or risk of Mr Collinson engaging in further criminal or serious conduct, the Tribunal has evaluated and considered his testimony, the other witnesses’ testimony and observations and the relevant evidence as directed by Paragraph 8.1.2(2) of the Direction, taking into account the information before the Tribunal on Mr Collinson’s risk of offending and the evidence of what rehabilitation he has achieved. Mr Collinson is not currently in the Australian community.
The Tribunal draws the following from the evidence and testimony before it:
(a)Mr Collinson was never in prison so there are no formal risk assessments, nor did he have an opportunity to undertake formal rehabilitation in prison.
(b)He did however undertake counselling as part of his sentencing conditions. He has lived in the community since offending, effectively undertaking informal rehabilitation by growing up, maturing in the community and entering meaningful personal relationships.
(c)The first of these, with Ms Endersby, existed prior to his offending and continued afterwards, including the birth of their son, Child A. The second is his relationship with Ms Nascimento. Both women are aware of his Index Offences. Neither evinced any concerns about the likelihood of Mr Collinson re-offending. It is fair to observe that neither are disinterested witnesses, but their testimony was not qualified by cross-examination on this point.
(d)The report of Dr Watts,[42] especially the following paragraphs:
[42] Exhibit G1: G13, 138–145.
22. It was noted on page 25 of the Transcript that the Judge stated, “I accept that no actual children were used in the production of the pornographic material” and essentially that the offences did not involve actual children in any way.
23. It is evident that the Court had the benefit of two psychological assessments, one by Ms Paige and another by Ms Barbuzza. The Court did not appear to put a lot of weight on Ms Paige’s report but quoted Ms Barbuzza at length (pages 25 and 26 of the Sentencing Remarks). The Judge agrees with the comments by the Psychologist, which included:
(a) there was nothing to suggest that he would have carried out the offence and does not have access to children, hence it appears to be sexual fantasy. The fantasies were noted to be a concern, but there was no history of deviant acting out behaviour;
(b) his primary interest was in adult women;
(c) Mr Collinson lacks many of the factors commonly associated with sex offending; and
(d) other than this current offending, Mr Collinson appeared to be an overall law-abiding citizen with a positive work history and a supportive social network.
24. In conducting my independent evaluation, I similarly come to the same conclusions that Mr Collinson does not show any deviant sexual behaviour towards real children, does not show normal risk factors, and has normal heterosexual adult sexual interests.
25. I further note that these charges were 10 years ago and that there has been no further offending. The Court at the time of sentencing indicated that he was noted to be remorseful, and that he was seen at that time as not being a high risk reoffender. Although it was noted that the charges were serious, he pleaded guilty early, demonstrated remorse, and engaged in psychological counselling.
26. Mr Collinson further explained that the offences took place in the context of him being a young adult in a workplace environment which was both negative in its nature and quite sexualised. He indicated, at the time, he was suffering from anxiety. He further added that he did not understand that written stories were actually illegal (as an experienced Psychologist, this is not uncommon that people associate child pornography as being pictures or videos of real children as opposed to just the written word, which in law is defined as pornography).
…
33. In summary, Mr Collinson committed some fantasy-related offences as a young adult. This involved downloading some stories which involved child pornography and a telephone discussion with a prostitute, who reported the discussion to the police. At no time did the matters involve real children, although the content was serious and illegal. Mr Collinson indicated that he was remorseful, has undertaken therapy, there is no evidence of repeat offending of any nature (sexual or otherwise), and that he has been a hardworking member of society. Mr Collinson was assessed by two psychologists at the time and they assessed him to be low risk. I am an experienced forensic psychologist and I did not find any evidence of risk and results of my assessment are similar to the psychologists who assessed him at the time, and that is he is of low risk.
(e)In testimony, Dr Watts, having reviewed his notes, opined that Mr Collinson took responsibility for the second Index Offence. He stated that Mr Collinson was ‘shocked’ in relation to the first Index Offence and that Dr Watts would describe him as ‘ignorant’ rather than downplaying the offence. Dr Watts further stated that Mr Collinson had demonstrated insight and awareness of his offending when Dr Watts assessed him in 2020. He described Mr Collinson as ‘not hugely psychologically insightful’ but also that he did not minimise his offending in their discussion.
(f)As noted by Dr Watts, the sentencing judge agreed with Ms Barbuzza’s comments in her 2011 pre-sentence report. The sentencing judge found that:[43]
[43] Exhibit G1: G5, 65.
The psychological report that was prepared by Ms Barbuzza at page 7 states:
‘Although Mr Collinson denied a link between his two types of offences, his behaviour suggests a pattern not inconsistent with a sexual deviant interest in children, particularly as he seems to have accessed this material via the internet and by communicating with a prostitute.
There was nothing to suggest that he would have carried this out, and he does not have access to children or a two-year-old niece, hence this appears to have been a sexual fantasy. Having such fantasies is of concern, despite the lack of evidence to suggest a history of sexually deviant behaviour. This should be explored further within treatment following sentencing when he is likely to be more open about his behaviour.
Notwithstanding the above concerns there was also evidence to suggest that his primary sexual interest is in adult women, as indicated by his reported interest in adult pornography and satisfaction from sexual relationships.
Furthermore, Mr Collinson lacks many of the factors commonly associated with sexual offending. Given the above, it is recommended that Mr Collinson engages in treatment to address the above issues, preferably individual counselling that can be tailored to his needs. This could provide a more detailed assessment of his sexual interest in children and further treatment recommendations could emerge from this.
Other than this current offending Mr Collinson appears to be an overall law‑abiding citizen with a positive work history and supportive social network.’
I agree with those remarks by that psychologist and I particularly endorse her recommendation that you receive individual counselling for your treatment needs.
(g)Dr Watts testified directly on the issue of sexual deviancy, noting that a majority of the adult population have what would be considered to be deviant sexual thoughts but that a far smaller percentage act on these thoughts. The Tribunal also notes that sentencing judge’s phrasing of ‘not inconsistent’ does not go so far as to establish that Mr Collinson necessarily had such thoughts.
(h)There is a likely unintended risk assessment implicit in the Respondent’s actions regarding Mr Collinson over the past eleven years. The Respondent granted Mr Collinson visas in 2013 and 2022. The Western Australian Sexual Offender Management System notified the Australian Border Force in 2017 about Mr Collinson’s offending. The Respondent does not appear to have acted for several years after the NOICC was issued in March 2020 and Mr Collinson had responded to that NOICC in April 2020. Even after Mr Collinson notified the Respondent of his offending when sponsoring Ms Nascimento’s visa application in September 2020, his sponsorship was approved. These proceedings arise from a second NOICC issued in April 2024. At the least, this series of events and the span of time they cover suggests a lesser concern on the Respondent’s part about the risk of Mr Collinson re-offending.
(i)This also raises the decision of His Honour Justice Colvin in Brown v Minister of Home Affairs,[44] as upheld by the High Court in Minister for Immigration and Border Protection v Makasa,[45] regarding the conditions under which a decision under s 501(2) is spent. However, for the purposes of this decision, the Tribunal does not consider that it need assess this aspect.
[44] Brown v Minister of Home Affairs [2018] FCA (1722).
[45] Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
Summarising Mr Vines’ arguments on this element as the Tribunal understands them:[46]
(a)Regarding recidivism, Mr Collinson attributes his offending to psychological factors including anxiety, depression, financial pressure, work difficulties, and peer pressure. While he claims to have sought psychological treatment, the Respondent maintains that the risk of re-offending remains unacceptable. This assessment is supported by Ms Barbuzza’s 2011 identification of a pattern “not inconsistent with a sexual deviant interest in children” and the sustained nature of Mr Collinson’s engagement with exploitative material over five months in the first Index Offence.
(b)Although the Respondent acknowledges that the offenses occurred over thirteen years ago with no subsequent offending, demonstrating a low risk of recidivism, it maintains that any risk of similar conduct in the future is unacceptable due to the serious nature of potential harm to individuals. Consequently, the Respondent contends that Primary Consideration 1 weighs heavily in favour of affirming the reviewable decision.
[46] Exhibit R1: [35]–[39].
Summarising Ms Graziotti’s arguments on this element as the Tribunal understands them:
(a)There are several significant factors that suggest Mr Collinson is a negligible risk:
i. Mr Collinson has not engaged in any similar conduct for more than fourteen years, demonstrating law-abiding behaviour over a sustained period.
ii. Mr Collinson’s current life circumstances differ substantially from those that existed at the time of the Index Offences, and he has been effectively tested in the community without incident.
iii. When assessed cumulatively, while the potential harm is serious, the likelihood of Mr Collinson engaging in further criminal conduct is deemed negligible, with insufficient evidence to support a finding that he poses an unacceptable risk to the Australian community.
(b)The Respondent’s argument characterising the risk as “unacceptable” is unreasonable given several specific circumstances:
i. The Respondent granted Mr Collinson an RRV in 2013 and 2022.
ii. The Australian Border Force was notified of Mr Collinson's offenses in 2017, yet no immediate steps were taken to remove him from the Australian community.
iii. A NOICC was issued in March 2020, but the Respondent made no decision for almost five years, suggesting that Mr Collinson was not considered to pose an “unacceptable risk.”
iv. Mr Collinson provided a statutory declaration regarding his offending behaviour to the Department in relation to Ms Nascimento’s UK‑820 application, which was subsequently approved.
v. Mr Collinson was authorised to remain in the Australian community through multiple governmental actions, including the granting of visas and choosing not to act on available information regarding his past offenses.
(c)Regarding Mr Collinson’s time in the Australian community, he resided there from March 2004 to November 2024, with the offenses occurring between June and November 2010. Following the offenses, he lived in the community for 14 years, including five and a half years without any reporting requirements or supervision. The Tribunal is cautioned that failure to consider this period as evidence of rehabilitation may constitute jurisdictional error.
(d)Notably, Mr Collinson was never incarcerated, as the sentencing judge did not consider him to pose such a risk that bail should be denied, or that immediate imprisonment was warranted. Instead, Mr Collinson completed counselling, abided by court-imposed conditions, maintained transparency with family members regarding his offenses and consistently expressed remorse for his offending.
(e)Mr Collinson’s remorse is evidenced by the sentencing judge’s remarks, which noted his cooperation with the police, his early guilty plea, his demonstration of remorse and his acceptance of responsibility. Family members have attested to his continuing expressions of remorse, and his then-partner Ms Endersby, despite being upset upon learning of the offenses, remained and remains supportive of him, believing his Index Offences represented a lapse in judgment rather than an enduring character flaw.
(f)As a father for nine years and with another child expected, Mr Collinson reports feeling profound disgust when reflecting on his past behaviour. He has maintained a prosocial lifestyle since the offenses, with no indication in his current circumstances that he poses more than a negligible risk of reoffending.
(g)Objective expert evidence further supports this assessment. The sentencing judge concurred with Ms Barbuzza’s finding that while Mr Collinson’s fantasies were concerning, there was “nothing to suggest that he would have carried this out.” Similarly, Dr Watts concluded in 2020 that Mr Collinson presented a low risk, consistent with earlier psychological assessments. In the four and a half years since Dr Watts’ report, Mr Collinson has maintained employment, fulfilled family responsibilities, and refrained from any behaviour similar to the original offenses.
(h)Mr Collinson’s ongoing commitment to lawful behaviour is further reinforced by his awareness of the consequences of reoffending, including the potential for visa cancellation without natural justice considerations and permanent exclusion from Australia, which would permanently affect his family relationships. This awareness serves as a significant deterrent to any future offending.
In addressing this element of Primary Consideration 1, the Tribunal notes that the legislative threshold is whether there is ‘a’ risk.[47]
[47] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] – [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn.[48]
[48] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Tribunal’s task is to determine the realistic level of risk posed by Mr Collinson as at the time of its decision,[49] with the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’,[50] to the extent that it could be considered an unacceptable risk.[51]
[49] Direction; [8.1.2(2)(b)(ii)].
[50] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[51] Direction; [8.1.2(1)].
When considering whether Mr Collinson poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal must consider all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’. [52] In undertaking this task, the Tribunal acknowledges that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. Senior Member Taylor observed a qualification to this in Dharma and Minister for Home Affairs,[53] in that the degree of risk that may be acceptable to the community is ‘inversely related’ to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.
[52] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]–[52]; Roberts, (n 53) [27].
[53] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].
Paragraph 8.1.2(1) uses the phrase ‘unacceptable risk’, that is, a risk that the community should not be required to tolerate or accept, regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection,[54] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, when determining what an ‘unacceptable risk’ is, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
[54]Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, at [89]–[104].
The decision of Minister for Immigration and Ethnic Affairs v Baker[55] provides an evaluative approach for the Tribunal to apply in assessing Mr Collinson’s conduct, finding that Paragraph 8.1.2(b)’s reference to criminal or other serious conduct is:
…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material. (Emphasis added.)
[55] (1997) 73 FCR 187 at 194.
In Guo, Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court clarified the extent to which past events are a guide to potential future events:[56]
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. (Emphasis added.)
[56] MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS V GUO WEI RONG (1997) 191 CLR 559 AT PAGES 574-575; QKVH V MINISTER FOR HOME AFFAIRS (‘QKVH 2020’) [2020] AATA 4431 (2 NOVEMBER 2020) [5].
Her Honour Justice Mortimer (as she then was) explored the concept of risk in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], where Her Honour noted:[57]
That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.
[57] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Applying Sabharwal’s reasoning to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Mr Collinson engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo, guided by Murphy and Baker’s consideration of what Mr Collinson’s past criminal conduct and other serious conduct reveals about his character.
As observed in GTPT,[58] the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence’ in assessing whether there is a risk.[59] Additionally, the more time that passes without Mr Collinson re‑offending, irrespective of formal rehabilitation, is evidence that his risk has reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’[60]
[58] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246, [67] (Senior Member Bellamy) (‘GTPT’).
[59] Ibid [67] citing the then current Direction.
[60] Ibid [94].
The Tribunal’s consideration of the risk or likelihood of Mr Collinson engaging in further criminal or serious conduct will assess the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
The factors that facilitate the risk of re-offending
The evidence and testimony in this matter, especially Dr Watts’ 2020 report and the sentencing judge’s decision, lead the Tribunal to infer and find that Mr Collinson’s relative immaturity, his work milieu and his anxiety at the time of the Index Offences contributed as factors that facilitated his offending then.
These factors have all changed for the better since his offending. In 2020 (and in his testimony), Dr Watts repeated Ms Barbuzza’s opinion that Mr Collinson lacks many of the factors commonly associated with sex offending and opined that Mr Collinson ‘does not show any deviant sexual behaviour towards real children, does not show normal risk factors and has normal heterosexual adult sexual interests.’[61]
[61] Exhibit G1: G13, 141.
The factors that hinder or reduce the risk of re-offending – Rehabilitation and remorse
Mr Collinson’s remorse is sustained and well-evidenced, corroborated by Ms Endersby and Ms Nascimento and was evident in Mr Collinson’s testimony.
Since offending, Mr Collinson has matured, has prosocial relationships with women, appears to have an excellent work ethic and a good career in a positive environment where he is valued and sought after and is a parent. He completed his rehabilitation and has been removed from the sex offender register. He has spent fourteen years in the community without offending since the Index Offences.
The Tribunal’s risk analysis and consideration
The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Collinson’s offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
In doing so, it has applied the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
In making its finding on the likelihood of Mr Collinson re-offending, it has then considered what the combination of his offending, his displays of remorse and what he has achieved in his life since offending say about his character, as well as assessing whether the consequences of his offending in future are likely to be unacceptable to the Australian community.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that a risk to the Australian community should Mr Collinson commit further offences or engage in other serious conduct exists. The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers this risk to be either a negligible or effectively non-material risk, once Mr Collinson’s risk management factors, his time in the community without offending, his remorse and his rehabilitation efforts are considered and evaluated against the factors that contributed to his offending. The former significantly outweigh the latter.
Conclusion: Primary consideration 1: Protection of the Australian community
The Tribunal finds that Mr Collinson’s offending is serious, that the consequences of any such future offending may involve indeterminate psychological harm to members of the Australian community and that this likelihood of his future re-offending is negligible or effectively non-material.
The Tribunal further finds that in its totality, this consideration weighs only moderately in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON‑CITIZEN
There is no evidence, including any convictions, before the Tribunal that Mr Collinson has committed or been convicted of an offence involving family violence.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen
This consideration carries neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This Primary Consideration directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Collinson’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The Tribunal must also consider the strength, nature and duration of any other ties that Mr Collinson has to the Australian community, having regard to:[62]
(c)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to time the Applicant has spent contributing positively to the Australian community
(d)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
[62] Direction; Paragraph 8.3(2).
The evidence before the Tribunal in relation to this Primary Consideration includes witness testimony, Mr Collinson’s statements, statutory declarations from Ms Endersby,[63] her mother,[64] Mr Collinson’s mother[65] and Ms Nascimento,[66] a statement by Ms Endersby[67] and family photographs.[68]
[63] Exhibit G1: G12, 121–125; Exhibit A4: 16–20.
[64] Exhibit G1: 126–128; Exhibit A4: 21–23.
[65] Exhibit A4: 27–31.
[66] Exhibit A4: 24–26.
[67] Exhibit G1: G18, 230–231.
[68] Exhibit G1: 114–120, 235–240; Exhibit A4: 32–33.
Summarising Mr Vines’ contentions on this Primary Consideration as the Tribunal understands them:[69]
(a)Mr Collinson has resided in Australia for approximately twenty years, having arrived when he was fifteen. While this constitutes a significant period, Mr Collinson spent a material portion of his formative years in the United Kingdom, and the Index Offences were committed six years after his entry into Australia. During his time in Australia, Mr Collinson has made positive contributions to the community through his employment and part‑time carpentry business, as specified in Paragraph 8.3(2)(a)(ii) of the Direction.
(b)In terms of family connections, Mr Collinson has several immediate family members in Australia, including his mother and brother, both of whom are Australian citizens. According to Mr Collinson’s statements, his mother suffers from multiple health conditions including rheumatoid arthritis, plantar fasciitis, and bursitis, and depends on him for support. Mr Collinson also claims to provide emotional support to his younger brother, who experiences depression, and financial support to both his mother and brother.
(c)Mr Collinson’s biological father and stepfather both reside in the United Kingdom. However, Mr Collinson has indicated that he has minimal contact with them, stating that he communicates with his biological father and stepfather only occasionally and is not close to either, having last seen his biological father when he was fifteen.
(d)The family members likely to be most significantly affected by a visa cancellation decision include the applicant’s son and former partner, Ms Endersby, an Australian citizen who relies on Mr Collinson for emotional and financial support. Mr Collinson maintains joint financial commitments with Ms Endersby, including a mortgage, car loan and other expenses. Additionally, Mr Collinson shares joint custody of their son and actively participates in his upbringing. Their son has been diagnosed with attention deficit hyperactivity disorder (ADHD). Both Ms Endersby and her mother have provided statements supporting Mr Collinson.
(e)Mr Collinson is currently in a relationship with Ms Nascimento, a Brazilian citizen residing in Australia on a Partner visa for which Mr Collinson served as sponsor. Their relationship began in 2018, and Ms Nascimento, who has lived in Australia since March 2017, is pregnant with their unborn child, due in May 2025. Mr Collinson’s Statement of Facts Issues and Contentions acknowledges that the visa cancellation would significantly impact Ms Nascimento’s ability to visit and remain in Australia.
(f)Based on these considerations, the Respondent concedes that this factor weighs in favour of setting the reviewable decision aside.
[69] Exhibit R2: [41]–[48].
Summarising Ms Graziotti’s contentions on this consideration as the Tribunal understands them:[70]
[70] Exhibit A1: [97]–[138].
(a)Mr Collinson arrived in Australia at fifteen and has since demonstrated his capacity to comply with Australian laws and contribute positively to society through his roles as a partner, father, son, co-parent, employee, business owner, taxpayer and friend. At the time of the Tribunal’s decision, Mr Collinson will be thirty-six, having spent most of his adult life in Australia.
(b)Throughout his residency in Australia, Mr Collinson has maintained consistent employment, progressing from an apprentice to a qualified carpenter. For the past twelve or more years, he has worked full time as a scheduler/estimator for a building company while simultaneously operating his own carpentry business on weekends and performing contract scheduling for other builders after hours. These positive contributions, coupled with the significant impact that affirming the reviewable decision would have on his family in Australia, weigh in favour of setting the reviewable decision aside and preserving his RRV.
(c)The Direction requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia. The applicant’s immediate family consists of:
i. His partner, Ms Nascimento (holding a UK-820 visa sponsored by Mr Collinson)
ii. His mother (an Australian citizen)
iii. His brother (an Australian citizen) and his fiancée
iv. His former partner and the mother of his child, Ms Endersby (an Australian citizen)
v. His son (an Australian citizen)
vi. His former mother-in-law (an Australian citizen)
(d)Additionally, his and Ms Nascimento’s unborn daughter, due in May 2025, if born in Australia, may be eligible for Australian citizenship.
(e)Apart from Ms Nascimento, who lacks a permanent visa solely due to not having received a decision on her BS-801 application, all of Mr Collinson’s family members are Australian citizens residing permanently in Australia. His relationships with his father and stepfather in the United Kingdom are limited to occasional phone calls.
(f)Ms Nascimento has demonstrated commitment to a future with Mr Collinson despite his offending and the risk that he may be removed from Australia. If he were unable to return to Australia, she would experience significant hardship, having lived in Australia for the past seven and a half years. Currently nineteen weeks pregnant, her entire support network is in Australia, where she has established her life. She has returned to Brazil only once since her arrival in Australia, and Mr Collinson was unable to accompany her at the time due to uncertainty regarding the Notice of Intention to Consider Cancellation.
(g)Ms Nascimento has no family or social connections in the United Kingdom and has never visited the country. She remains uncertain about what long‑term visa options might allow her to remain in the United Kingdom. Since Mr Collinson was taken into immigration detention in November 2024, Ms Nascimento has experienced significant emotional, financial and practical distress. Her general practitioner has expressed concern regarding the impact of her current circumstances on her physical and mental health, as well as the potential risk to her unborn daughter.
(h)Affirming the reviewable decision would also have serious implications for Ms Nascimento’s own ability to visit and remain in Australia. Her BS‑801 application cannot be approved if her sponsor no longer holds a permanent visa. Consequently, if the reviewable decision is affirmed, she will face the choice of withdrawing her BS-801 application or receiving a refusal decision. Should Ms Nascimento receive a refusal on her BS-801 application while offshore, she would not be eligible to lodge an application for review with the Tribunal unless granted another visa to re-enter Australia within twenty-eight days of the refusal decision. Furthermore, her UK-820 visa will cease the day her BS-801 visa is refused, effectively preventing her from re-entering Australia to visit Mr Collinson’s son or any other family members or her friends.
(i)Ms Nascimento has been a significant part of Mr Collinson’s son’s life since December 2019. She will suffer enormous distress if unable to continue her important role in his life and will be devastated if his son cannot fulfill his “big brother” role to his soon-to-be-born sister. She has already found it incredibly difficult to attend prenatal appointments without Mr Collinson.
(j)Mr Collinson’s son accompanied Ms Nascimento to her scan on 16 December 2024, and continues to be extremely excited about his sister’s birth. He is very disappointed and upset that his father is “away for work” and that Ms Nascimento has joined him but is looking forward to their return.
(k)Despite separating in 2018, Mr Collinson has maintained a close relationship with Ms Endersby, and they have amicably and successfully co-parented their son together for the past six years. Ms Endersby would be detrimentally affected if Mr Collinson were unable to re-enter or remain in Australia. Mr Collinson and Ms Endersby have a private agreement regarding financial support for their son. Mr Collinson’s income in Australia has steadily increased with experience and industry contacts, enabling him to contribute to his son’s expenses without disagreement between the parties. They are concerned that the applicant’s financial position will drastically deteriorate upon removal (already significantly depleted through lost income during detention, legal fees and removal costs), affecting both his son and Ms Endersby. Ms Endersby uses the financial support she receives from Mr Collinson to cover costs for their son and contribute to her mortgage.
(l)Ms Endersby has been on anti-depressant medication for over ten years and ADHD medication for approximately eighteen months. She fears losing Mr Collinson and Ms Nascimento’s physical presence in Australia, given the substantial support she derives from their company and co-parenting of their son. Her husband works on a fly-in, fly-out basis and is in Perth for only one week out of every three, while Ms Endersby’s mortgage remains solely in her name. Having never had to raise their son alone, the prospect of coping for the next nine years until he turns eighteen is overwhelming. She cannot contemplate the distress that both she and their son would experience in having to tell him that his father is never returning home.
(m)Ms Endersby would also face increased pressure to assist Mr Collinson’s mother with her practical and emotional needs in Mr Collinson’s absence, while already caring for her own elderly parents and her child. Ms Endersby and their son cannot relocate to the United Kingdom as their lives are established in Australia, and due to their son’s ADHD and sensory processing issues, such a drastic change would be beyond his capacity to manage. This factor weighs heavily against affirming the reviewable decision.
(n)Mr Collinson’s mother receives a Disability Support Pension for conditions including anxiety, depression, cervical and lumbar spondylosis, multiple sclerosis, rheumatoid arthritis, chronic pain, scoliosis and facet joint degeneration. Multiple sclerosis, a chronic neurological disease with no cure, can result in a range of symptoms including loss of motor function, sensation, vision changes and cognitive impairment. She relies on Mr Collinson for practical assistance with daily tasks such as grocery shopping, laundry, home maintenance, transportation and emotional support.
(o)Due to her medical conditions and chronic pain, Mr Collinson’s mother cannot sit for extended periods, including on an airplane. With the most direct flight to the United Kingdom from Perth requiring at least seventeen hours of sitting, she is unable to travel to the United Kingdom. Any suggestion that Mr Collinson could meet his mother in a third country would require speculation regarding his ability to obtain a visa for that country and should be disregarded. Furthermore, even the closest international destination from Perth (Indonesia) requires at least three hours of sitting on a flight.
(p)Mr Collinson’s mother has already suffered from the loss of her son’s practical support during his four weeks in detention. She reports feeling ‘stressed and panicked’ about losing this support and how she will cope, stating that his permanent removal from Australia would be ‘devastating and frightening.’ She indicates that Mr Collinson’s detention has severely impacted her mental and physical health, leading to suicidal thoughts. The applicant’s brother is unable to meet their mother’s care needs due to his job’s travel demands and his fiancée’s own care requirements (she has epilepsy).
(q)Mr Collinson’s mother’s conditions will not improve, and her mental health has deteriorated since his detention and removal. Affirming the reviewable decision will detrimentally affect her physical and mental health, and it is unlikely she will ever see her son again. This factor weighs heavily against cancelling the applicant’s visa.
(r)Mr Collinson’s brother, nine years his junior, witnessed family violence during their parents’ separation and looked to Mr Collinson for guidance and support throughout his childhood and adolescence. Diagnosed with anxiety and depression as a teenager, he relies on Mr Collinson as a strong part of his support network. There are significant concerns for his mental health should Mr Collinson be unable to return to Australia. The family has already been impacted by the uncertainty caused by the NOICC issued almost five years ago and is deeply concerned about how each member will cope if Mr Collinson is permanently barred from returning to Australia. This factor weighs in favour of setting the reviewable decision aside.
(s)Setting the reviewable decision aside is undeniably in Mr Collinson’s son’s best interests. His son will be directly impacted by the Tribunal’s decision and by the flow‑on effects that affirming the reviewable decision would have on his mother, father, grandmother, stepmother, uncle and unborn sibling.
(t)In conclusion, the support network Mr Collinson and Ms Nascimento have in Australia is not available to them in any other country. His immediate family members reside in Australia and are committed to providing him with all necessary support for his ongoing rehabilitation and prosocial lifestyle. The couple has built their life in Australia and was anticipating the birth of their first child together, surrounded by family, friends and other loved ones. The negative impact that Mr Collinson’s removal and ongoing prohibition from returning to Australia would have on his Australian family members (particularly his son, Ms Endersby, and Mr Collinson’s mother) constitutes a reason why the Tribunal should set the reviewable decision aside.
(u)This consideration weighs heavily in favour of setting the reviewable decision aside to the extent that it outweighs all other considerations supporting cancellation.
In terms of the impact on Australian business interests, it is likely, based on the evidence and testimony, that Mr Collinson’s removal from Australia has and will continue to have a direct negative impact on Jubilee Home Builders’ operations and the other builders who are his personal clients.
For employment links, such as that between Mr Collinson and Jubilee, weight should generally only be given where his removal would significantly compromise the delivery of a major project. It appears unlikely that Jubilee Home Builders is engaged on a major project, although the Tribunal acknowledges the housing stock shortage which adds some weight to this relationship.
Mr Collinson owns his own business and there is evidence before the Tribunal as to its existence, its turnover, its taxation payments and its work. Removing Mr Collinson from Australia closes this business and ends its support of several builders. Based on Mr Collinson’s uncontested testimony, it is unlikely that his skills can be rapidly substituted or replaced by these Perth builders. The Tribunal infers that the consequences arising from the closure of his personal business involve a significant and substantial negative impact on Australian businesses, being the builders his business supported.
The Tribunal’s finding
The Tribunal finds that this Other Consideration carries significant weight in favour of setting the reviewable decision aside.
THE TRIBUNAL’S FINDINGS
The statutory framework poses two issues for the Tribunal to address:
(a)character test: whether there is a reasonable suspicion that Mr Collinson does not pass the character test in terms of s 501(6)(b), and whether Mr Collinson satisfies the Tribunal that he passes the character test,[103] and, if not,
(b)exercise of discretion: whether there is another reason the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.
[103] Section 501(2) of the Act.
The Tribunal found above that it was satisfied that Mr Collinson did not pass the character test.
In determining whether there is ‘another reason’ to set aside the reviewable decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
Addressing Primary Consideration 1, the Tribunal found that Mr Collinson’s offending is serious, that the consequences of any such future offending may involve indeterminate psychological harm to members of the Australian community and that the likelihood of his future re-offending is negligible or effectively non-material. The Tribunal further finds that Primary Consideration 1 in its totality weighs only moderately in favour of affirming the reviewable decision.
Primary Consideration 2 carries neutral weight.
The Tribunal found that Primary Consideration 3 carries very strong and substantive weight towards setting the reviewable decision aside.
The Tribunal found that Primary Consideration 4 supports setting aside the reviewable decision. It carries a very heavy and substantive weight.
The Tribunal found that Primary Consideration 5 carries a slight weight in favour of affirming the reviewable decision.
The Tribunal found that the legal consequences of the decision regarding Mr Collinson’s Visa carries a moderate weight in favour of setting the reviewable decision aside.
The Tribunal found that the extent of impediments Mr Collinson would face if he were removed to the United Kingdom carries a moderate weight in favour of setting the reviewable decision aside.
The Tribunal found that the impact on Australian business interests carries significant weight in favour of setting the reviewable decision aside.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction).[104]
[104] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[105]
[105] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
In applying this process, the Tribunal has regard to the Direction and specifically Paragraph 7(2):
The 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. (Emphasis added.)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[106] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[107]
[106] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[107] Ibid at [37]–[39].
Two further authorities offering guidance are His Honour Justice Dowsett’s decision in Aksu v MIMA[108] at [10]–[13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and His Honour Justice Sackville’s decision in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[109] at [54].
[108] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[109] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion:
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion. (Emphasis added.)
Taken together, these points above support the argument that the Tribunal retains a discretion to determine in a specific matter whether ‘greater weight’ should be given to Primary Consideration 1. The Tribunal considers that, in this matter, it should exercise this discretion to find that Primary Consideration 1 should not be accorded this greater weight.
Having conducted and considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations and the Other Considerations in this matter leads this Tribunal to find that it is satisfied that there is another reason to set aside the reviewable decision.
DECISION
Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent and substitutes a decision that Mr Collinson’s visa is not cancelled.
I certify that the preceding two hundred and three paragraphs (203) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave
..............[SGD]..............
Associate
Dated: 7 March 2024
Date(s) of hearing: 28 & 29 January 2025 Solicitors for the Applicant: Ms Graziotti of Estrin Saul Lawyers. Counsel for the Respondent: Mr Vines of counsel, instructed by Ms Rezae of Sparke Helmore Lawyers.
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