Davidson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 243

Davidson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 243 (14 February 2024)
Division:GENERAL DIVISION
File Number: 2023/8978
Re:Charles William Davidson
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 14 February 2024

Date of written reasons: 26 February 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made on 22 November 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.
.........................[SGD].............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION –non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 - Applicant convicted for sexual crimes against women and children – offending conduct spanning a period of years – where the Applicant has been a resident of Australia for almost seven decades – where the Applicant is of an advanced age - strong protective factors in the community – Tribunal finding the risk of reoffending moderated by the protective factors and the Applicant’s age – Tribunal finding very strong ties for the Applicant in Australia- additional other considerations found to be relevant to the case - protection and expectations of the Australian community outweighed by ties to Australia, interests of minor children, impediments upon return and additional other considerations- Tribunal finding another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
Criminal Code Act (1899)(Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 February 2024
INTRODUCTION

Mr Charles William Davidson (‘the Applicant’) is a 74-year-old-man born in the United Kingdom in 1950. He came to Australia in May 1955 aged five years. He has departed Australia once, for seven days, in October 1985. Apart from that, he has resided in Australia since his initial arrival. He has therefore spent something in the order of 95 per cent of his life in this country.
On 19 April 2018, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) mandatorily cancelled the Applicant’s Class BF transitional visa (‘Visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant made representations seeking revocation of this decision on 22 April 2018. On 22 November 2023, a delegate of the Respondent refused to revoke (pursuant to

s 501CA (4) of the Act) the initial mandatory cancellation decision. For the purposes of these Reasons, the delegate’s non-revocation decision made on 22 November 2023 will be referred to as the ‘Decision Under Review’.
There followed the instant application filed by the Applicant on 30 November 2023. Following the making of initial case management directions, the application eventually proceeded to its hearing on 12, 13 and 14 February 2024 (‘the Hearing’). The Hearing received both oral and written evidence. The oral evidence was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
Oral evidence was received from:
·the Applicant;
·his wife, Mrs Wendy Davidson;
·the expert psychologist, Ms Tania Dhillon;
·the Applicant’s daughter in New Zealand, Ms Claire Madrid;
·the Applicant’s son, Mr Alec Davidson;
·Mr Alec Davidson’s fiancée, Ms Angela Margaret Rossiter;
·the Applicant’s friend, Mr Chris Pratley;
·a friend of the Applicant’s wife, Ms Marian Graham;
·a former client of the Applicant, Ms Louise Croese;
·the Applicant’s sister-in-law, Ms Debra Kindness; and
·the Applicant’s friend, Ms Connie Whalley.
AN IMPORTANT PROCEDURAL ASPECT OF THIS MATTER
This is an expedited application pursuant to section 500(6L)(c) of the Act which requires the Tribunal to make a decision within the period of 84 days after the day on which the Applicant was notified of the Decision Under Review. The 84^th day in this matter fell on 14 February 2024. It was originally listed for hearing on 5 and 6 February 2024.
In the lead-up to the Hearing, it transpired that the Applicant’s representative sought to file and serve an updated report from the abovementioned expert psychologist, Ms Dhillon. However, to do so would have offended the two-day rule enshrined in sections 500(6H) and 500(6J) of the Act. A telephone directions hearing was held on 2 February 2024 to ventilate the issue and to seek a resolution.
The eventual resolution – acceptable to both parties - required vacation of the originally – listed hearing dates and the re-listing of the Hearing for 12, 13 and 14 February 2024. Following conclusion of the Hearing on 14 February 2024, I caused the Tribunal to make a decision – in short-form – which was duly published to the parties on that day such as to meet the requirements of section 500(6L)(c) of the Act. Attached to these Reasons and marked ‘Annexure B’ is a true and correct copy of that short-form decision.
Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326 ('Khalil’),[1] I now publish my detailed written reasons within a reasonable time after publication of my short – form decision.
[1] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The Applicant fails the character test as a matter of law.[2] It is plain from his criminal history that he has received a sentence of imprisonment of 12 months or more[3] and thus has a ‘substantial criminal record’[4] which compels this Tribunal to find that he is a person who does not pass the character test. The threshold giving rise to such a finding is comfortably met as a result of the imposition of cumulative head custodial terms of 16 years imprisonment upon the Applicant by the District Court of Queensland on, respectively, 2 March 2018 and 6 May 2021.
Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?
[2] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[3] Section 501(7)(c) of the Act.
[4] Section 501(6)(a) of the Act.
For present purposes in reviewing a non-revocation decision pursuant to s 501CA(4) of the Act, the Tribunal must have regard to ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are 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.
2Non-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.
3The 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 measurable risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)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; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 nature against women or children, regardless of the sentence imposed;
(iii)   acts of family 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, 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 frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)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).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
An overview of the Applicant’s offending history in Australia
In short compass, the Applicant has convictions for 59 offences dealt with at two sentencing episodes on 2 March 2018 and 6 May 2021. Reduced to tabular form, his offending looks like this:

Date

Court

Offence

Outcome

2 March 2018

Brisbane District Court

18 counts of ‘sexual assaults’[5]

two years imprisonment

2 March 2018

Brisbane District Court

one count of ‘rape’[6]

five years and six months imprisonment

6 May 2021

Brisbane District Court

Three counts of ‘indecent treatment of children under 16’[7]

18 months imprisonment

6 May 2021

Brisbane District Court

30 counts of ‘sexual assaults’[8]

three years imprisonment

6 May 2021

Brisbane District Court

Seven counts of ‘rape’[9]

four years imprisonment

[5] Pursuant to section 352(1)(A) of the Criminal Code Act (1899)(Qld).
[6] Pursuant to section 349(1) of the Criminal Code Act (1899)(Qld).
[7] Pursuant to section 210(1)(A) of the Criminal Code Act (1899)(Qld).
[8] Pursuant to section 352(1)(A) of the Criminal Code Act (1899)(Qld).
[9] Pursuant to section 349(1) of the Criminal Code Act (1899)(Qld).

The offending occurred across a period from 2003 until 2015. It was predominantly committed during the period 2013 – 2015. It involved the commission of 59 offences against 26 different victims, comprising both adults and children.
Paragraph 8.1.1 Considerations
Paragraph 8.1.1(1)(a): the chapeau to paragraph 8.1.1(1)(a) of the Direction stipulates that conduct described in its three sub-paragraphs is viewed ‘very seriously’ by the Australian Government and the Australian community. There is little or nothing to cavil with the proposition (and finding) that the Applicant has committed sexual offences falling within the auspices of paragraph 8.1.1(1)(a)(i) of the Direction. This conduct also falls within the auspices of paragraph 8.1.1(1)(a)(ii) because it was a crime of violence committed against women and a child. I have no hesitation to applying the ‘very serious’ descriptor to the totality of the Applicant’s offending in this country.
Paragraph 8.1.1(1)(b): the Applicant has no conviction arising from him causing a person to enter into a forced marriage or as a result of him otherwise being a party to a forced marriage.[10] Neither does the Applicant have any conviction for crimes committed against vulnerable members of the community or government representatives or officials in the performance of their duties.[11]Given the formulation of the character test referable to the instant decision, which test the Applicant fails as a matter of law,[12] I am not required to make any finding about whether any of his conduct forms the basis for a finding that the he does not pass an aspect of the character test that is dependent on my opinion.[13] The material contains no reference to any crime committed by the Applicant during his time in immigration detention because he has never been placed in immigration detention given that he is still serving his custodial term in a state-based correctional facility.[14]
[10] Pursuant to paragraph 8.1.1(1)(b)(i) of the Direction.
[11] Pursuant to paragraph 8.1.1(1)(b)(ii) of the Direction.
[12] See [2] of these Reasons.
[13] Pursuant to paragraph 8.1.1(1)(b)(iii) of the Direction.
[14] Pursuant to paragraph 8.1.1(1)(b)(iv) of the Direction.
Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[15]
(ii)acts of family violence;[16] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[17]
[15] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[16] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[17] Paragraph 8.1.1(1)(b)(i) of the Direction.

I am therefore precluded from taking into account the Applicant’s sentences for crimes of a violent nature committed against women and a child. However, I can take into account sentences the Applicant received for violent and/or sexual crimes pursuant to paragraph 8.1.1(1)(a)(i) of the Direction. Having regard to the abovementioned criminal history, I am of the view that I can take into account the sentences the Applicant received for all of his offending across his 59 offences. Taken cumulatively, sentencing courts have imposed head sentences in the total sum of 16 years for this Applicant’s ‘violent and/or sexual crimes.’ I have no hesitation in applying the auspices of this sub-paragraph 8.1.1(1)(c) towards a finding that the sentences imposed by the courts for the crimes that this Applicant are indeed indicative of a finding that his offending has been of a very serious nature.
Paragraph 8.1.1(1)(d): this sub-paragraph of the Direction poses two questions. The first, is whether the Applicant’s offending has been frequent? The numbers around the Applicant’s offending are self-explanatory. He has 59 convictions for offending spanning a period from 2003 to 2015. I am not interested in any contention that most of his offending occurred during the 2013-2015 period. Whether or not we look at the period 2003-2015 or the period 2013-2015, this Applicant has been a frequent offender. I so find.
The second question posed by this particular sub-paragraph is whether the offending contains any trend of increasing seriousness? The horrendous nature of the Applicant’s unlawful conduct safely renders this second question moribund. This is because the offending committed right at the start of the history involved indecent treatment of a child under the age of 16 years. One could scarcely imagine a more serious start to an offender’s criminal history. I will find that his offending has not escalated in seriousness. I will instead find that it was very serious from its outset and retained that character throughout all of the history of its commission.
I am therefore satisfied that the Applicant’s offending has been frequent and that it has been very serious from its commencement and that it maintained such character throughout its commission. I also therefore reach a state of satisfaction that this sub-paragraph 8.1.1(1)(d) most certainly speaks to the very serious nature of the totality of the Applicant’s offending in this country.
Paragraph 8.1.1(1)(e): this sub-paragraph looks for any cumulative effects to be taken from an unlawful non-citizen’s offending. In terms of assessing the cumulative effects of the Applicant’s offending, one need look no further than the relevant victim impact statements appearing in the material. These victim impact statements tell a very grim story of how the Applicant’s conduct has impacted its victims. I will refer to individual victim impact statements by reference to each victim:
·victim KB[18]
[18] R3, pp 162-163.
ohas suffered, and continues to suffer regular panic attacks;
oused to wash herself with methylated spirits due to feeling unclean;
oalways felt unsafe and that something bad would happen to her;
ofelt hypervigilant and reluctant to let her guard down;
odeveloped symptoms of Obsessive Compulsive Disorder requiring medication in the form of Fluvoxamine (Luvox);
ohas felt immense guilt and shame;
ohas developed an eating disorder;
ohas developed a hernia in her stomach resulting from excessive vomiting as a result of experiencing constant reflux; and
oremains on medication for depression and reflux.
·victim JMC[19]
[19] R4, p 1.
o‘The sensations of touch on my breasts still to this day makes me feel dirty/filthy and disgusting. I can not [sic] tolerate anyone touching them at all during intimacy with my partner.’; and
owhen she approaches the vicinity where the incident occurred, ‘The feeling I have is of confusion, dirty and wanting to cry but not understanding why…I just wanted to go home and shower to get the feeling, sensation and filth off me’;
·victim JF[20]
[20] R4, p 5.
o‘This has impacted my sex life and relationship with my partner, if I was laying on my stomach and he touched the backs of my legs or inner thighs I would get away as quick as possible, and cry uncontrollably. I would see what happened with [the Applicant] play over in my head feeling dirty.’; and
o‘I do not wish anyone else to endure what I and so many other woman [sic] have….’;
·victim LK[21]
[21] R4, pp 6-8.
o‘…I am in ….a horrific place of emotional and spiritual torment…’;
o‘I have faced many demons in my journey of healing and am a passionate advocate for people to heal and having the right to be inclusive in our community…’;
o‘….it took less than 20 minutes for [the Applicant] to take me to a place where I am so vulnerable and have regressed to a period within my life that has traumatised me so. How do I ever trust again….’; and
o‘I have now resigned to the fact that having a stable intimate relationship may be something that may not be an option for me….’;
·victim RM[22]
o‘I felt like I had been raped after the incident with [the Applicant], as no one other than my husband has seen my breasts or private areas in this manner.’;
o‘I woke up in the middle of the night crying asking myself why I let this happened [sic] ?’; and
o‘….I’ve lost my confidence for what happened to me.’
[22] R4, p 9.
The content of these victim impact statements is self-explanatory. The Applicant’s unlawful conduct has cumulatively affected his victims in a variety of ways. These effects of his repeated offending upon its victims most certainly militates in favour of a finding that the totality of his unlawful conduct in this country has been of a very serious nature.
Paragraph 8.1.1(1)(f): this Applicant departed Australia once, for about a week, in 1985 when he was in his mid-30’s. At that time, he had not committed any offence and thus had no offending conduct to declare in any incoming passenger card. This paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(g): the material has nothing to say about the Applicant receiving any formal warning from either the Respondent’s Department, or any other source, about the impact of any subsequent offending thereby imperilling his Visa status to remain here. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h): the Applicant came here as a five-year-old in May 1955 and, of course, had not compiled any criminal history in his country of origin. He has only left Australia for about a week during his entire time here and has thus not had any genuine opportunity to engage in any unlawful conduct abroad which could be classified as an offence in Australia. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence before me. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
One need look no further than the abovementioned victim impact statements to comprehend the nature and extent of the trauma visited upon the victims of the Applicant’s offending. Each of the victims speak to the culpability of the Applicant and how his conduct has seriously impacted their personal development, their capacity to live normal lives and the extent to which they have had to deal with resulting psychiatric difficulties ranging from obsessive behaviour as a result of feeling ‘unclean’ through to ruminative thoughts around suicide.
Put simply, the Applicant’s victims have been harmed and significantly so. I have no hesitation in concluding that the nature of the harm to individuals in the event the Applicant were to recommit any of his past very serious unlawful conduct would range from physical, psychological and quite conceivably, catastrophic harm on a victim.
This sub-paragraph 8.1.2(2)(a) of the Direction also refers to harm that would be experienced by the Australian community in the event the Applicant recommitted any of his past offending. It is not at all a stretch of the evidence to suggest (and find) that this Applicant has impacted the community by consuming an inordinate share of its policing, judicial sentencing and custodial resources.
The Applicant – as was his right – fully contested the charges proferred against him before judge and jury and through various avenues of appeal none of which disturbed the original verdicts of guilt. The Applicant offended across a 12-year span and the offending involved some 26 victims resulting in the laying of 59 charges. This is not an inconsiderable consumption of the community’s policing and judicial sentencing resources. His offending has resulted in the cumulative imposition of 16 years of head custodial time. This is not an inconsiderable consumption of the community’s custodial resources.
I have had regard to the nature and extent of this Applicant’s unlawful conduct in this country. I am satisfied that recommission of any part of it has the potential for the occasioning of physical, psychological, measurably material and even catastrophic harm to its victims. I so find. I will also find, pursuant to paragraph 8.1.2(1) of the Direction that any of the Applicant’s conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of its recommission may be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I have identified certain elements in the evidence that, to my mind, speak to the question of the Applicant’s recidivist risk. I will address each of those elements in turn and then make a finding about his current level of recidivist risk in the event of a return to the community.
The Applicant’s evidence
The Applicant’s oral evidence at the Hearing before me was both perplexing and disappointing. Ultimately, his evidence was unsustainable and implausible. The dominant tone of his responses to questions about his offending revolved around (1) a complainant simply concocting the reported behaviour giving rise to a charge and conviction; (2) the complainant’s version of a given incident being either ‘wrong’ or otherwise ‘something that just did not happen’; (3) a victim simply creating the circumstances around an offence because of some kind of unresolved issue or vendetta involving one of the Applicant’s children ;(4) the investigating police orchestrating a parade of complainants who were, for some reason, either coached or led into uniformly reporting incidents about the Applicant’s unlawful conduct towards them; (5) the incidents not being unlawful because they arose from appropriately applied ‘techniques’ that the Applicant used in his massage therapy practice; and (6) the conduct comprising the subject matter of the complaints had been perpetrated on more robust and ‘athletic’ clients who submitted to the treatment with no complaint.
It goes without saying that the totality of the Applicant’s evidence, given in the above terms, can only be found to be vacuous, self-serving and ultimately implausible. This Tribunal will reject this evidence and simply follow the findings of guilt resulting from the various legal processes through which these charges passed and which remain as the final and ultimately reliable basis for characterisation of circumstances surrounding his offending conduct. This Tribunal is not permitted to go behind the findings of a duly constituted court of competent jurisdiction and nor should the Applicant reasonably expect that to happen.[23]
[23] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
To give at least some measure of benefit to the Applicant, it should be noted that his evidence did take a path towards perhaps some measure of evolutionary plausibility. He eventually conceded that (1) he should have obtained the written consent of client-victims before applying his treatment ‘techniques’ upon them; and (2) that he should have better explained the nature and type of procedure he was about to perform. While these two elements are barely plausible, they do demonstrate some kind of acceptance by the Applicant that his treatments could have been applied in a way that could have avoided, or significantly ameliorated, the nature and severity of the unlawful conduct alleged against him and for which he was convicted.
The next stage of the evolution of the Applicant’s evidence is to be found in his letter of

4 December 2023. This communication is cast in terms of ‘Regarding Remorse’. The Applicant says:
‘ I accept full responsibility for all the treatments that I did for my clients. I have deep regrets about how they are feeling. I also acknowledge and regret about how my actions have impacted their families and friends.
I take full responsibility for poor decisions, poor management strategies, poor assessments and poor application of the techniques. I am now aware that my risk management strategies were inadequate. I have very deep regrets about the impact towards the profession, its employees and the general public.’[24]
[24] A11.
While purportedly about remorse, this letter cannot be found to represent any fulsome acceptance by the Applicant of his wrongdoing. He does not refer to any unlawful transgression against a client – victim. Instead, he purports to accept responsibility ‘for all the treatments that I did for my clients.’[25] [My emphasis]. He does not admit any personal wrongdoing in the administration of those treatments nor does he accept that those treatments were unlawful.
[25] A11.
He refers to responsibility for ‘poor decisions, poor management strategies, poor assessments and poor application of the techniques.’ This evidence is vacuous and offensive to its victims. There is no professional oversight or explanation to what the Applicant did. His unlawful conduct is so far removed from any reasonably acceptable technique of treatment such as to render the Applicant’s evidence absurd. This point was not lost on a previous Court that dealt with the Applicant’s conduct. At the Applicant’s trial, a prosecution witness in the form of a remedial therapist who was also a duly admitted member of the Australian Association of Massage Therapists gave evidence that (1) there was no therapeutic purpose for the Applicant inserting his fingers inside the vagina of a client – victim; (2) touching that client – victim anywhere in relation to the labia was contrary to any credible training; (3) there was no physical value in a massage involving a manual sweep over a client – victim’s breast; (4) there was nothing therapeutic about manipulating or tweaking the nipple of a client – victim’s breast; (5) the cupping of the client – victim’s breast was totally contrary to the regular practice of a reputable massage therapist; and (6) during a treatment, no genitals of a client – victim should have been exposed at any time.
The Applicant’s difficulty in now demonstrating any level of acceptable remorse behind his conduct is thus perpetuated by the nature and extent of his evidence. Not even it’s purported evolution from outright and unsustainable denial to purported acceptance and remorse can now be found to reliably ground a finding that he is remorseful for what he has done. This Tribunal is respectfully of the same mind as the learned sentencing Judge (His Honour, Mr Justice Farr SC) who, upon sentencing the Applicant in 2018 noted that he:
‘…. you have demonstrated absolutely no remorse whatsoever. In fact, during your evidence, you took every opportunity to gratuitously attack the character of some of the complainant women. Your evidence was quite obviously rejected by the jury, and understandably so. It was rife with inherent implausibility, inconsistency, and appeared frequently to be – to consist of recent fabrication.’[26]
[26] R1, p 104, lines 18-22.
The expert evidence
I will focus on two elements of the evidence that can now be said to be provided by ‘experts’. First, there appears in the material the report of Ms Tania Dhillon who is an impressively credentialled and experienced psychologist. Ms Dhillon’s most recent report appears in the material.[27] She also assisted the Hearing by providing oral evidence. There are two fundamental difficulties with Ms Dhillon’s opinion and the entirety of her evidence. It would appear (and reliably so) that there were significant deficiencies and omissions in the nature and extent of the material briefed to her as a prelude to her furnishing her report.
[27] A4.1.
It seems she did not have before her a fulsome compilation of what transpired at various stages of the Applicant’s ventilation of these charges through the judicial system. It seems clear that she was not, for example, aware of the views of Judge Farr SC on the specific question of the Applicant’s remorse when sentencing him in 2018. This led Ms Dhillon to make findings about the Applicant’s remorse that were entirely inconsistent with conclusions reached on this issue at earlier stages of the Applicant’s engagement with the criminal jurisdiction. For example, Ms Dhillon thought the Applicant:
‘…expressed extreme regret and deep remorse for this impact on his victims, stating he can only imagine what they have gone through, such as sleep disturbance, digestive problems, an inability to relax and trust issues. He understood and expressed remorse for the considerable effect this can have on victims for the remainder of their lives.’[28]
[28] A4.1, p 1.
In a similar vein, it transpired during her evidence that Ms Dhillon had not been briefed with explicit details of the nature of (1) what the Applicant did;(2) how this conduct gave rise to the charges; and (3) the extent to which this conduct is absolutely outside the acceptable realm of reputable massage therapy practice. The resulting conundrum for the Tribunal is that if Ms Dhillon is not aware of exactly what the Applicant has done to his client – victims, how can she reliably predict whether or not he will do the same thing again if returned to the community? Of course, she cannot do so.

Ms Dhillon sought to remediate these gaps in her evidence by pointing to (1) her clinical experience; (2) her claimed ability to be able to ‘read people’; and (3) her overall impression that the Applicant could not possibly be regarded as someone who now represented any kind of recidivist profile which led to her assessment of his risk as ‘Zero likelihood of
re-offending’. Of course, this Tribunal cannot reliably accept this assessment. This is not due to any lack of competence and/or experience on the part of Ms Dhillon. It has to do with the extent of what was briefed to her. Accordingly, this Tribunal will not rely on her evidence but, at the same time, casts no aspersions on either Ms Dhillon or those briefing her who, apparently, have or were acting for the Applicant on a pro-bono basis.
Rather, this Tribunal will default to the findings appearing in a Static-99R Assessment conducted by Queensland Corrective Services (‘QCS’) on 16 February 2022 which is the second element of expert evidence before it.[29] The QCS of the view that upon application of the Static-99R Assessment methodology ‘…the long term STATIC risk of offender [the Applicant] has been identified as being in the Low risk category’.[30] Later in its report, the QCS made these findings:
‘Pro-criminal thinking style and lifestyle?
Yes
Comments:
Prisoner Davidson was assessed to hold a pro-criminal attitude due to his denial of his offences. During the interview he denied committing any of his offences and attempted to minimise his behaviour during the offending period. He gave explanations of his behaviours and how they may have been mistakenly interpreted to the reported offences. He further blamed the victims and their interpretations of massage therapy for him being convicted and incarcerated. Pro-criminal attitudes were identified as a rehabilitation need.’[31]
[29] R3, pp 231-240.
[30] R3, p 233.
[31] R3, p 239.
Family support
The Applicant has the considerable benefit of a loving, understanding and forgiving family around him. His conduct leading to his convictions has not estranged him from them. Both of his children are in relationships of their own with children of their own. One of his children lives locally in Brisbane and the other resides in New Zealand. Both of the Applicant’s children intend to maintain and propagate their relationship with the Applicant and to use their best endeavours to make the Applicant known to their children’s grandfather. There is little to cavil with the evidence that in terms of emotional support (and even monetary or material support – to the extent they can afford it) will be extended to the Applicant by these two children and their respective families.
But the true ‘heroine’ in the evidence is to be found in the person of the Applicant’s wife, Mrs Wendy Davidson. She met and married the Applicant in the 1980’s. She told the Hearing that despite almost 40 years of marriage, they still do everything together. She spoke of an intention to renew their marital vows. She is to be respectfully commended for so stoically standing by the Applicant through the ‘thick and thin’ they have had to endure as a result of his unlawful conduct of which he has been duly convicted. I will put to one side the extent to which she may have sought to cause her evidence to parallel that of the Applicant regarding his position on how and why he was convicted of some 59 offences. I will instead focus on the extent to which Mrs Davidson will facilitate and support the Applicant’s transition from a lengthy term of imprisonment back into the community so that he can live out the remainder of his life uncontroversially and just as any other septuagenarian could reasonably expect to do so.
The likelihood of the Applicant returning to the massage therapy profession
The Applicant provided clear and unequivocal evidence to the Hearing that he had absolutely no intention of returning to the massage therapy profession. During closing submissions, the Applicant’s representative accepted that his client’s evidence about recidivist risk should be taken at face value. I agree and when one considers the Applicant’s adverse experiences at the hands of the criminal law deriving from his past unlawful conduct as a massage therapist, it can be safely found that there is a very low likelihood of him again earning a living from massage therapy.
The further point is this: it would beggar belief if a former massage therapist with the criminal history accumulated by this Applicant as a direct result of his work as a massage therapist, would ever be allowed to re-enter the massage therapy field. His past unlawful conduct as a massage therapist would surely, as it were, regulate him out of any future practice as a massage therapist. There is, of course, little or nothing that could stop him setting up as a massage therapist in, for example, a spare room of his house if returned to the community. But he would surely be doing so at his own peril in circumstances where this activity caused sentencing courts to impose a cumulative period of head custodial time of 16 years for previous unlawful conduct as a massage therapist.
No Serious Violent Offender (‘SVO’) declaration
In written submissions tendered by the Crown at the Applicant’s sentencing episode before Her Honour Judge Dick SC on 6 May 2021, the Crown agitated for a declaration of the Applicant as an SVO. In those submissions the Crown noted:
‘4.8. When considering his conduct overall, this defendant has been convicted of 59 counts against 26 complainants. This includes 8 counts of rape against 4 complainants; 3 counts of indecent treatmen1 against a 15 year old girl who was living in his home; 48 counts of sexual assault against 25 complainants. The offending spanned a 12 year period and periods when he was self-employed and employed at 5 professional practices.’[32]
…..
‘Serious violent offence declaration
4.18. The discretion to impose a Serious Violent Offence declaration under s 1618(3) is undertaken as part of the integrated process of determining a just sentence.
4.19. The sentencing court must determine whether the "making of a declaration is conducive to the fulfilment of the purposes for which sentences may be imposed and is warranted by relevant considerations manifest in the particular case, including the circumstances of the offence and the offender''
4.20. The making of such a declaration is not limited to cases falling outside of a so called norm. A broader consideration of the circumstances of the case is warranted to determine whether there are circumstances of the case which aggravate the offence in a way which suggests the protection of the public or adequate punishment require a longer period in actual custody before eligibility for parole than would otherwise be required.
4.21. There are significant features of this case (noted above) that aggravate the offending and strongly suggest that protection of the public and adequate punishment require a longer period in actual custody.’[33]
[32] R3, p 155 [4.8].
[33] R3, p 156, [4.18]-[4.21].
In Her Honour’s sentencing remarks Judge Dick SC noted the following:
‘But I have to consider whether the circumstances warrant it either by warranting protection of public – well, you will not be practicing again. I have not heard of any sexual misbehaviour except in that context. am [sic] at ease about that part of it. And secondly, whether adequate punishment requires you to serve a longer period of imprisonment. The case – the matters I am dealing with, some of the sexual assaults were at the lower end of the range in the area of the groin, the rapes, which – digital rapes, and there was the indecent treatment of a child. I thought long and hard, and anyway, for a man of your age, so I have decided that this matter does not call for a serious violent offender declaration.’[34]
[My emphasis]
[34] R1, p 38, lines 18-27.
Risk in relation to children
Another element of the evidence that could perhaps point to an assessment of the Applicant’s current recidivist risk – with particular reference to minor children – might be able to be found in the extent to which his conduct and/or his activities could become the subject of observation and monitoring by authorities such as, for example, the Department of Communities, Child Safety and Disability Services. The Respondent’s representative, at my request, very helpfully provided a copy of relevant parts of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) which deals with a person convicted of child sex offences returning to the community and who might find themselves in or around minor children.
The salient parts of this legislation for present purposes are as follows:
‘9 Reportable offence and existing reportable offence defined
(1): A reportable offence is –
(a) an offence (a prescribed offence) that is mentioned in schedule 1, item 9, if –
(i) the offence is committed in respect of a child…..’
‘9A Reportable contact defined
(1) A reportable offender has reportable contact with a child if the offender –
(a) has physical contact with the child; or
(b) communicates with the child orally, whether in person, by telephone or over the internet ….’
;Schedule 1 Prescribed offences
…..
4 An offence against any of the following provisions of the Criminal Code –
Section 210 (Indecent treatment of children under 16)’
It can be safely found that (1) the Applicant has committed a reportable offence comprising his convictions for offences committed in respect of a child (section 9(1)(a)(i)); (2) that the Applicant’s convictions for indecent treatment of a child under 16 is a prescribed offence pursuant to Schedule 1 item 9 of this legislation; and (3) that if returned to the community, he will very likely have reportable contact with his four year old grandson who will reside locally to him in Brisbane and such contact will comprise physical contact and/or other communication orally, in person, by telephone or over the internet.
The Tribunal is also obliged towards the Applicant’s representative who helpfully provided submissions about how the above legislative regime works in reality. Applied to the Applicant’s circumstances, the supervising authority (the Department of Communities, Child Safety and Disability Services) should be notified of the Applicant’s return to the community and how he meets the abovementioned legislative components. The Applicant’s representative submitted that the Department of Communities, Child Safety and Disability Services then makes an assessment of the level of the Applicant’s risk towards any minor child and then maintains, as it were, a type of ‘watching brief’ over the nature, type and extent Applicant’s exposure to and/or engagement with any minor child. The Respondent’s representative did not appear to cavil with this submission. Nor will I.
Findings about risk
My findings about the recidivist risk represented by this Applicant will, to a large extent, involve a synthesis of my above narrative discussing the elements referrable to the Applicant’s recidivist risk. Succinctly stated, they are:
·the Applicant’s evidence around the nature and extent of his offending does him no favours. At best, there might be said to be some kind of gradual ‘coming around’ to a reality that some 26 different victims are not all wrong about what they reported to investigating police who brought 59 charges on which the Applicant was ultimately convicted. At worst, his evidence in this regard must be found to be vacuous, self-serving and ultimately implausible;
·his professed remorse is not convincing or genuine. He accepts responsibility for ‘treatments that I did’ but otherwise self-servingly avoids any acceptance that those treatments were illegal or that he did illegal things in the course of administering them. He never accepts criminal wrongdoing but instead unconvincingly hides behind what he identifies to be poor decisions, poor management strategies, poor assessments and poor application of the techniques. This is not remorse;
·the expert evidence of Ms Dhillon should, out of an abundance of caution, not be accepted or otherwise applied towards any finding about the Applicant’s current recidivist risk. This has nothing to do with Ms Dhillon’s competence or experience but is a result of the level of granular detail briefed to her in relation to what the Applicant actually did giving rise to his convictions and what judicial sentencing officers made of his evidence and the nature of his conduct. This Tribunal will default to the abovementioned findings of the QCS who arrived at a low recidivist risk for this Applicant. The Respondent’s representative did not cavil with this QCS finding. Nor will I;
·it is very unlikely the Applicant will return to the massage therapy profession. One could reasonably conclude that he has, as it were, regulated himself out of it by virtue of his criminal convictions for conduct committed while working as a massage therapist. Given the Applicant’s consequential adverse experiences at the hands of the criminal justice system, it is very unlikely he would again want to involve himself in massage therapy as a means of earning a livelihood;
·despite the strong submissions by the Crown about the Applicant being declared an SVO, Her Honour Judge Dick SC was not inclined to make such a declaration; and
·the Applicant’s risk towards any child/ren in whose vicinity he may find himself if returned to the community is, to my mind, satisfactorily regulated by ss 9, 9A and Schedule 1 of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
Assessment of recidivist risk
Having regard to the totality of the evidence before me, I have arrived at a finding that this Applicant represents a low recidivist risk for recommission of any of his past offending.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found that recommission of almost any aspect of the Applicant’s offending has the very real potential for the occasioning of physical, psychological and even catastrophic harm to potential victims. Ancillary to this finding I have found pursuant to paragraph 8.1.2(1) of the Direction, that any of the Applicant’s conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of its recommission may be unacceptable to the Australian community; and
(c)I have found that this Applicant represents a low recidivist risk if returned to the community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a heavy, but not determinative, level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
In their respective written submissions, both parties contend there is no evidence presently before the Tribunal that the Applicant has engaged in family violence and that this Primary Consideration 2 should weigh neutrally. This position did not change at the Hearing. I agree and will proceed on that basis.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’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 subsequent sub-paragraphs 8.3(2) and 8.3(3) of the Direction provide guidance to a decision-maker in how to determine the weight allocable to a person’s ties to his child/ren and social links wherein the child/ren and the social links of the person are Australian citizens or permanent Australian residents and/or who have a right to remain in Australia indefinitely.
In the assessment of any other ties a person may have in Australia, paragraph 8.3(4) of the Direction requires a decision-maker to have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
In addressing the requirements of this particular paragraph it is necessary to differentiate between the immediate family the Applicant has outside of Australia and the immediate family he has inside Australia. This differentiation is necessitated by the Direction’s reference to ‘immediate family members in Australia’. As the material discloses, one of the Applicant’s two children, Ms Claire Madrid has, for a number of years, resided in New Zealand with her partner and their infant child. That said, it is plain from the material that the Applicant does have immediate family members in Australia. They are:
·his wife, Mrs Wendy Davidson;
·his son, Mr Alec Davidson;
·the child of Mr Alec Davidson, namely, Child J, almost five years of age;
·the Applicant’s biological mother, Ms Helen Davidson who is aged 94 years and lives in Sydney; and
·the Applicant’s brother, Mr Robert Davidson.
Mrs Wendy Davidson provided both oral and written evidence[35] to the instant Hearing. In the course of her evidence-in-chief, she said she has been married to the Applicant for almost 38 years having met him in Sydney in 1984 and marrying him the following year in October 1985. She first became aware of the allegations against the Applicant in around 2015 – 2016. She spoke of ‘a lot of love’ between her and the Applicant who she respects both as a person and a father. She told the Hearing of the Applicant’s strong work ethic and of the love he feels for both of their children. She said the Applicant developed an interest in massage therapy – particularly sports massage – as a result of being an avid cyclist. She said his fellow cyclists often complained of aches and pains as a result of their cycling activities.
[35] A14.
Were the Applicant to be removed from Australia she said she would be devasted. She added that her life has been a struggle for the time the Applicant has been in criminal custody. She confirmed that she and the Applicant have two grandchildren: (1) their

15 month old granddaughter in New Zealand who is the daughter of Ms Claire Madrid; and (2) the almost five year old child, child J who is the son of Mr Alec Davidson.
Mrs Davidson told the Hearing of the Applicant’s community-based and volunteering activities. She said he has done mentoring work for participants in the Work for Dole program run by the PCYC[36], volunteering work for the Prince Charles Hospital as well as performing volunteer tasks at cycling events. In terms of other extra-curricular activities Mrs Davidson spoke of their mutual interest in archery and prior to his incarceration they were members of archery clubs.
[36] Police and Community Youth Clubs.

She told the Hearing of the relatively recent change in the Applicant’s health which has seen him lose weight and be hospitalised as a result of certain of his medical conditions. She told the Hearing the Applicant has health issues around his prostate gland, a hernia condition, and a skin cancer issue in the form of basal cell carcinoma. She spoke of these conditions and the treatment he has received for them now causing him to have a compromised immune system which requires him to take Vitamin B twice a day.
It is clear that Mrs Davidson would like the Applicant to be returned to the community so she can resume her married life with him and so that they can do all of the social and family things that come with that. She spoke of them wanting their renew their wedding vows and that she regarded the Applicant as a perfect partner. She spoke of a struggle to financially make ends meet and to otherwise meet payment of recurring expenses. She described her big personal issue involved trouble with her sleeping.
It was put to Mrs Davidson that one could perhaps think the Applicant now represented an increased risk of recidivism because he maintained a position of ‘not guilty’ throughout the entirety of the legal process that dealt with his criminal offending. She was adamant that this did not mean he now represented an increased recidivist risk. She based this answer on the reality that the Applicant will not be returning to the therapeutic massage industry. She also said that she had sat through the entirety of the legal process that dealt with his criminal offending and that she had ‘no doubt about his innocence’.
She was asked how she thought the Applicant would deal with a scenario where he was removed to Scotland. She was again adamant that the Applicant would be at very significant personal risk in Scotland because (1) he has nowhere to go in terms of safe accommodation; (2) he would have no income in Scotland because he would not qualify for any Australian age pension or other benefit as a non-citizen and, according to her, the Applicant would need to be ordinarily resident in Scotland for 10 years to receive the Scottish equivalent of the Australian age pension.
In the course of her cross-examination, she was asked whether she would accompany the Applicant to Scotland in the event this Tribunal caused him to be removed to that country. She spoke of not even wanting to think about such a scenario and that she cannot afford to even travel to Scotland. She described the major challenge she would experience in relocating to Scotland would be a financial one. The other challenge to her relocating to Scotland involved difficulties with her personal health. She spoke of having certain health issues that compel her to reside in a warm climate such as Brisbane.
She was asked questions about her financial situation and how she has coped financially while the Applicant has been in prison. She said she had $100,000 remaining in her superannuation account and that she had no other savings apart from the sum of $2000 in a separate account in her sole name. She confirmed that the Applicant does not have a bank account. She lives in rented accommodation in the suburb Springfield Lakes with her son (Mr Alec Davidson) , the son’s partner (Ms Angela Margaret Rossiter) and their almost five-year-old child, Child J.
The rent for the property Mrs Davidson lives in is $600 per week which is split three ways between herself, Alec Davidson and Ms Rossiter. Mrs Davidson said she also receives some money from the Australian Government being part of the age pension and that she also works as a bookkeeper to make extra money. She said the part payment of the age pension and whatever income she earns as a bookkeeper is what she survives on and which also ensures she does not have to use any of her superannuation money. She confirmed in cross-examination that she does not receive any financial support from her son (in Australia) or her daughter (who is in New Zealand).
In terms of valuable assets, she told the Hearing her only such asset was her motor vehicle which she uses to get to her bookkeeping assignments. She was asked about a scenario where the Applicant were removed to Scotland and she responded with ‘I don’t know how we’re going to survive’ in such a scenario, assuming she joined him in Scotland. She was then asked whether it was viable for her to remain in Australia and to visit the Applicant in Scotland now and then. Her adamant answer was ‘No, I want to stay here’.
She was then taken to the Applicant’s offending and, in particular, his offending against a minor child. She said she was aware of it but otherwise she maintained the Applicant’s consistent position that no massage involving this child victim ever took place. Mrs Davidson said that this particular child victim ‘made this up because she didn’t like us’. She was also asked about the 20 or so other (adult) victims of the Applicant’s offending and she very broadly responded with phrases such as ‘they may have made some of it up’ and ‘there’s no truck to any of their accusations’.
In the course of her re-examination she confirmed that if the Applicant is returned to Scotland, he would have no entitlement to the Australian age pension and he would only possibly qualify for the Scottish equivalent pension after residing there for 10 years. She said that if they were in Scotland, they would living on her Australian age pension entitlement, plus they would have to delve into her $100,000 superannuation account, plus whatever work she could do as a bookkeeper, plus whatever work the Applicant can do, bearing in mind he is approaching 75 years of age and is physically quite unwell and would thus be a quite unattractive employment proposition to any employer in Scotland.
Mrs Davidson was also asked to explain the circumstances surrounding the abovementioned minor child victim’s complaint to the police that gave rise to the Applicant being convicted for offending against a child. She said this victim had befriended their daughter and that her daughter and this victim were initially in Sydney and that they then relocated to Perth but did not tell anybody where they had gone. Mrs Davidson said that she and the Applicant eventually tracked down their daughter and this victim in Perth and convinced them to return to Brisbane. She said the complainant, for some reason, harboured negative thoughts and feelings towards her and the Applicant. Mrs Davidson told the Hearing that she developed the impression that this victim ‘felt she wasn’t wanted in the house’ in which Mrs Davidson and the Applicant resided.
Mr Alec Davidson is 33 years of age. He provided both oral and written evidence[37] to the instant Hearing. In the course of his evidence-in-chief he was asked about the extent of his knowledge of the Applicant’s offending. He said that he was aware that the offending was mainly sexual offending because he had ‘read some of the trial documents’. He was asked about his views regarding the Applicant’s convictions and he said ‘I believe my father to be innocent of the charges made against him. I don’t believe my father is capable of such acts.’
[37] A17.
He spoke of the lack of familiarity that customers of massage services have with regard to what areas of a patient’s body need to be manipulated as part of such treatment. He confirmed that he is in a domestic relationship with Ms Rossiter but at the present time ‘we are in the middle of some issues.’ He told the Hearing that he works as a full-time restaurant manager and that growing up with his parents was a very positive experience and that he ‘had a happy childhood’. He described his parents as supportive people who endorsed his intention to start playing the drums at the age of nine. They were likewise supportive when he started a musical band and when he experienced issues with anger management.
Mr Alec Davidson was then asked about the impact he would experience, and that his almost five-year-old son would experience, in the event of the Applicant’s removal to Scotland. He said this would cause him ‘emotional turmoil’ and, in terms of his four-year-old son, it would only exacerbate the son’s adverse feelings about not seeing the Applicant because, according to Mr Alec Davidson, ‘my son has difficulty not seeing my father’. He added that ‘I have no financial means of getting over to Scotland. I don’t even want to imagine it.’ He said any removal of the Applicant to Scotland ‘would affect me and my mum, I don’t know what it would do to her emotionally.’
Mr Alec Davidson was also cross-examined. He was initially asked about his relationship with Ms Rossiter and he confirmed that their relationship was still on foot but that they are ‘going through some issues….not sure if we can work it out.’ He said they ‘might separate’ and that in such a scenario, the almost five-year-old son would remain with him in respect of whom he would act as the sole parent.
He was asked about his work as a restaurant manage and said that his gross annual income was $73,000 and that his take home pay was $1000 per week which ‘covers rent and other living expenses.’ He said ‘it is therefore difficult for me to travel to Scotland because the cost of living in this country is very high’. He said Ms Rossiter works as a sales assistant and shift manager at the retail business known as ALDI.
He was taken to a scenario involving the Applicant’s removal to Scotland. In that event, Mr Alec Davidson said ‘I’d see him every five-10 years – probably once a decade.’ He was then questioned about the extent of the Applicant’s offending and was asked about the state of his knowledge regarding the number of victims and the years that the offending spanned. In particular, he was asked whether he believed his father was innocent and he responded in the affirmative. He said the victims had collectively made up the allegations against his father and that much of those allegations derived from clients of remedial massage therapy ‘not understanding the depths of remedial massage therapy’.
He added that ‘if there was any inappropriate touching, it was accidental’. He was challenged about this response and, in particular, was asked whether he was familiar with the details appearing in relevant court documents that referred to the Applicant inserting a finger into the vagina of patients and that he manipulated their breasts and nipples in what was purported to be ‘therapy’. Mr Alec Davidson was asked whether this sort of conduct could in any way be explained as a therapeutic procedure or that it somehow comprised ‘accidental touching’. He responded with ‘that’s absolute bullshit, I can’t believe he [the Applicant] would have done anything like that. I have never entertained the thought that he [the Applicant] may be lying to me.’
Finally, Mr Alec Davidson said he would always use his best endeavours and otherwise wholeheartedly support his father. In the event of the Applicant’s removal to Scotland he said ‘I would do everything I could to assist him financially’ to the extent he was able to do so.
It is necessary to deal with the extent to which this Tribunal can find that his mother and brother would be adversely impacted by his removal to Scotland. As mentioned earlier, his mother is 94, has dementia and resides in a nursing home in Sydney. The Applicant’s brother is 72 years of age with health issues of his own and who also resides in Sydney. Neither the mother or the brother provided oral or written evidence to the instant Hearing and their views about a removal of the Applicant to Scotland are not known. It would therefore be unsafe for this Tribunal to allocate any weight or make any finding about the extent to which these two immediate family members might or would be impacted by the Applicant’s removal.
I have had regard to the written and oral evidence of each of Mrs Wendy Davidson and Mr Alec Davidson who I have identified as the Applicant’s two immediate family members in Australia. I am satisfied that each of the abovementioned two immediate family members would be adversely impacted in the event of the Applicant’s removal to Scotland. That finding is subject to this caveat: for their interests to be taken into account, each of these two people must be Australian citizens, Australian permanent residents or persons who have a right to remain in Australia indefinitely. I will assume that each of these two immediate family members fall into at least one of the qualifying categories contained in paragraph 8.3(1) of the Direction. I am of the view that the Applicant’s ties with the abovementioned wife (Wendy) and son (Alec) who are his immediate family members in Australia are very strong and that those ties militate in favour of the allocation of a very heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This component of Primary Consideration 3 requires me to determine whether more weight should be allocated to the Applicant’s ties to Australia in circumstances where his biological child/ren or stepchild/ren are Australian citizens, Australian permanent residents and/or who have a right to remain in Australia indefinitely. I note that this component refers to ‘a non-citizen’s ties to his her or her child and /or children…’.and that weight is allocable to such a child/ren where they meet one of the qualifying factors facilitating a right to remain in Australia. I have earlier mentioned Child J as an immediate family member of the Applicant. Although this particular paragraph 8.3(2) does not stipulate that the non-citizen’s ‘child and/or children’ need to be minor-aged, if I were to refer to Child J here, it would surely constitute double-counting for that child in circumstances where that child’s interests must surely be taken into account in relation to Primary Consideration 4.
But the more obvious difficulty with including Child J as a discussion point for this paragraph 8.3(2) is that he is not the Applicant’s child. He is the Applicant’s grandchild. Child J’s parents are Mr Alec Davidson and Ms Angela Margaret Rossiter. The reference in paragraph 8.3(2) is to ‘a non-citizen’s ties to his her or her child and /or children’. There is no reference to a minor-aged grandchild, grandniece or grandnephew or niece or nephew. If this paragraph 8.3(2) intended to include these other minor children connected to a non-citizen, the text would surely name such categories of children in addition to a ‘child and/or children’ to which a non-citizen is connected.
Later in these Reasons, I will review the evidence about the extent to which it is in the best interests of Child J (and any other relevant minor children) for the Applicant to remain in Australia. For present purposes, I am satisfied that the Applicant’s ties with Child J should be assessed as part of my consideration of paragraph 8.4 of the Direction.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. This paragraph of the Direction does not specifically formulate a methodology as to the manner of how weight is to be allocated to these two categories of ties. Be that as it may, I will proceed to examine the extent (if any) of the Applicant’s links with these two categories of people and allocate weight in his favour on the basis of whatever strength, duration and nature there may be found to be in those links.
First, in terms of other family links to Australia, the material (as best as I understand it) reveals three such people as listed in the first three following dot points. They are:
·the Applicant’s daughter-in-law and partner of Mr Alec Davidson – Ms Angela Margaret Rossiter;
·the Applicant’s sister-in-law (sister of Wendy),Ms Debra Kindness;
·the Applicant’s sister-in-law (wife of Robert), Ms Kaye Davidson;
·the Applicant’s nephew (son of Robert), Mr Ben Davidson;
·the wife of Mr Ben Davidson, Ms Naomi Davidson;
·the adult children of Mr and Mrs Ben and Naomi Davidson:
oTanisha;
oTaylor;
oJoshua.
·the Applicant’s adult niece (daughter of Robert), Ms Amanda Toom;
·the married partner of Ms Toom, Madis.[38]
[38] Note to reader: Amanda Toom and Madis have an 18-month-old son – Child S – whose interests I will take into account as part of my discussion and analysis of Primary Consideration 4.
Ms Angela Margaret Rossiter provided both written[39] and oral evidence to the instant Hearing. In her examination-in-chief, she told the instant Hearing that she first met the Applicant in 2008 at which time she started dating Mr Alec Davidson, her current partner. Ms Rossiter was 17 years of age at that time. She has resided with the Applicant and his wife before the Applicant went to prison. She has always found him to be a kind and respectful person and she is not aware of any reason she may have to distrust him. She added: ‘I haven’t got a bad word to say about him.’
[39] A16.
She confirmed she was aware of the nature and extent of the Applicant’s offences and thought this conduct was ‘very much out of his nature to do these things; I have had many massages from him and have no reason to distrust him.’ Ms Rossiter was also asked about her view regarding a possible removal of the Applicant to Scotland and she said: ‘he should not be deported; it would destroy his wife and family.’
Ms Rossiter was also cross-examined. She confirmed that over the years, the Applicant had massaged her at her home ‘a number of times; 50 massages at a guess.’ These massages he performed on her were the result of her asking him to do so, or of him offering to do so, if she reported feeling any pain or discomfort. Ms Rossiter said the Applicant did nothing wrong or unusual during those massages. She completed her oral evidence by saying that if he asked her for financial assistance in the event of a removal to Scotland, she is not in a financial position to provide him with such assistance.
In the first of her two written statements before the Tribunal,[40] Ms Rossiter says:
‘I love this man [the Applicant] like he was my own father, each day is a constant battle to try and live without him, and we are all struggling. It has hit us financially, but more than that it has hit us emotionally. We no longer feel complete and family outings are no longer a thing, because we are no longer a complete family without him. If he was to be taken to another country it would destroy us.’[41]
[40] R1, p 195.
[41] R1, p 195.
In the second of her two written statements,[42] Ms Rossiter says ‘[The Applicant] has not lived in Scotland since he was a very small child. He has no support of family there. His support and family unit is here in Australia and this is where he should remain.’[43]
[42] A17.
[43] A17 [7].
Ms Debra Kindness is the Applicant’s sister-in-law. She has known the Applicant since November 1984 when he started dating his now wife, Wendy. In her evidence-in-chief, she said she has known the Applicant for about 40 years during which time Ms Kindness says she ‘has been close’ to the Applicant and Wendy. She told the instant Hearing that she has spent periods living with the Applicant and Wendy and that they have also lived with her. Some of this closeness can be seen in the fact that she is the Godmother of Claire who is the daughter of the Applicant and Wendy. Claire is the daughter who lives in New Zealand.

But barely a couple of months in Scotland some 45 years ago – when viewed in the context of him being here for almost 70 years – is scarcely enough time for him to establish any form of social foundation in Scotland such that he could now call upon to ameliorate any difficulty he would experience in sourcing safe accommodation there. As well, relationships and connections surely fade with the passage of time and the tyranny of decision. It would be extraordinary if a person, now aged almost 75 years, having spent almost 70 years here could now call upon someone as a ‘familiar face’ in Scotland to act as a source of safe accommodation and social support.
It is one thing for the Applicant to say to a friend or relative in Scotland: ‘Here I am, I’ve just been deported from Australia where I’ve been for 70 years; we’ve barely kept in touch and we’re barely familiar with one another; but please now let me rely on you for safe accommodation and social support.’ It is entirely something else for him to say to that person ‘We’ve kept in touch over the years; I’ve travelled to Scotland on numerous occasions and you to Australia; the flame of our connection has never gone out; I’ve told you about my deportation troubles; I am desperate for somewhere to stay in Scotland; can you please help me with accommodation and social support?’
The evidence undeniably points to the Applicant falling into the former scenario. In those circumstances, it is very unlikely he will be able to source, locate and rely upon any person in Scotland for safe accommodation. A similar finding can be made about the extent of his social connections in that country which can safely found to have faded in the mists of time. The further point is this: the Applicant is an elderly man. The statistical reality is that many of his contemporaries, be they actual relatives or social acquaintances could very well have passed away by now.
Second, I refer to the ‘economic supports’ component of this sub-paragraph(c) of paragraph of 9.2(1). It is, with respect, vacuously suggested that because the Applicant was born in Scotland and spent his first five years there, and, these elements will more readily assist him to resettle there and would render his difficulties in doing so as little more than ‘short-term hardship’.[89] Such a contention should and must be rejected. It is unsustainable and not otherwise supported by the evidence.
[89] R3, p 17 [62].
A further contention that can be safely dispatched is one involving the Applicant having a history of employment in Australia ‘which should assist him in finding similar work in the United Kingdom if he were to return.’[90] The starting point is surely this (and I make it with great respect to the Applicant): who in Scotland would employ a 75-year-old with no employment history in that country to do anything? Assuming he is not able to source remunerative employment, the next question involves whether he would be able to derive any age pension entitlements from the Australian Government or that of Scotland. The short answers are these: (1) as a non-citizen of this country, the Applicant has no entitlement to all or part of the Australian age pension or any other social security-type benefit; (2) as a citizen of Scotland who has been absent from that country on a continuous basis for almost 70 years, he needs to reside in Scotland for 10 years before he qualifies for any type of Scottish age pension equivalent.
[90] R2, p 18 [62].
At the Hearing, I invited discussion about the Applicant’s economic scenario in Scotland in the event his wife relocates there with him. The short answers to that question are these: (1) under the portability provisions of Australian Social Security legislation, she would be entitled to receipt of her Australian age pension if she relocates to Scotland; (2) she has no entitlement to any social security – benefit in Scotland (be it age pension or anything else) if she went to Scotland to live with him as his spouse; (3) she will be compelled to draw down and rapidly deplete her current balance of

superannuation/savings of AUD $100,000 to supplement the meeting of their living expenses; and (4) she could – in theory – do the same kind of bookkeeping work in Scotland that she does here where there is commonality of language and accounting principles and practices.
But there is one fundamental problem with this Tribunal contemplating a scenario of the wife relocating to Scotland. The Direction says nothing about this Tribunal taking into account any such scenario. It is concerned with ‘….the extent of any impediments that the non-citizen may face if removed from Australia to their home country…’. Further, the language of the Direction contains no ameliorating commentary about an impediment being assuaged by the non-citizen’s spouse or partner joining them in their country of origin. The only ameliorating language in the Direction is found in the words ‘….in the context of what is generally available to other citizens of that country….’. There is no ameliorative reference to the severity of impact of an impediment based upon support a removed non-citizen could receive from a spouse / partner who joined them in their country of origin.
There was a guarded submission about the Applicant effectively placing himself in the hands of charities in Scotland in the event of his removal to that country. That contention must be rejected. It is one thing to remove a non-citizen who has prospects – both economic and social – of overcoming short-to-medium term hardships arising from re-settlement. It is something else entirely to effectively throw a non-citizen applicant onto the whims of Scottish charitable institutions. The former scenario grounds a sustainable contention. The latter scenario is to knowingly put an elderly and vulnerable returned non-citizen into harm’s way.
In summary, this Applicant, in the event of his removal to Scotland, (1) has no safe accommodation available to him; (2) is almost entirely devoid of any social contacts; (3) is entirely devoid of any identifiable means of financial sustenance, save and except for him somehow finding remunerative work as an almost 75-year-old; and (4) would only have social and economic support in the event his wife abandoned their family in Australia and relocated with him to Scotland where they would live off her Australian age pension, her superannuation/savings and whatever she could earn as a bookkeeper there. But as I have found, the Direction does not compel this Tribunal to consider item (4) described in this paragraph and nor will it do so.
I am of the view (and I find) that a lack of social and economic supports in Scotland now represent very significant impediments to the Applicant’s return and resettlement in Scotland.
Findings about impediments
Given the relevance of sub-paragraphs (a) and (c) of paragraph 9.2(1) of the Direction to the Applicant’s circumstances, I am of the view that this Other Consideration (b) confers a strong level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (e): Other relevant integers in the evidence
Is the Tribunal’s discretion broad enough to take into account such integers?
I am mindful of the Full Court’s findings in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 (‘Kumar’). There, the Full Court was judicially reviewing a decision of this Tribunal with particular reference to the possibility of jurisdictional error deriving from the Tribunal’s claimed failure to address and weigh a particular integer disclosed by the evidence in that case. According to the Full Court, it is within the breadth of the Tribunal’s discretion in determining legislation governing these character-based matters for the Tribunal to take into account such integers, over and above the scope and parameters permitted by the Direction. The Full Court’s following comments were made with reference to an ancillary provision to section 501CA(4) of the Act (i.e. s. 501(1)) and in respect of an earlier iteration of the Direction but, in my respectful view, the comments about the breadth of discretion to take into account and weigh such integers nevertheless apply to the currently – applicable Direction and the currently – applicable provision in the Act, that being, section 501CA(4):
‘What the Tribunal did not do was to address whether this tertiary legal studies ambition, in conjunction with other factors, necessarily including those considerations specified in the Direction which were raised on the material before it, weighed in favour (or against) the granting of the visa. Once again, such was the breadth of the discretion conferred by s 501(1), it was permissible for the Tribunal to consider this “integer” of the application before it.’
What are these ‘Other Integers’ raised by the evidence?
The evidence raised two other integers which I consider relevant for present purposes. They are: (1) the impact of the Applicant’s removal upon the Applicant’s other child, Ms Claire Madrid who is resident in New Zealand with a partner and their child and who will find it almost impossible to visit the Applicant in Scotland were he returned there; and (2) the dreadful conundrum confronting the Applicant’s wife arising from whether or not she abandons her family in Australia (and in relatively nearby New Zealand) if she relocates to Scotland to reside with the Applicant in the event of his removal to that country.
Does the language of the Direction preclude consideration (and weighing) of these Other Integers?
In Kumar, the Full Court adopted its comments made in Calvey v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 104 which are as follows:
‘…with reference to the power, found in s 501CA(4) of the Act, to revoke the cancellation of a visa, in relation to which considerations specified in a direction made under s 499 of the Act are also relevant, the Full Court observed of such considerations that they are “not an exhaustive universe”. In the face of an ability to revoke cancellation as open-ended as if satisfied “that there is another reason why the original decision should be revoked”, that, with respect, must follow.’[91]
[91] Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94, per Logan , Derrington, Anderson JJ at [42].
If I were to entirely ignore the interests of Ms Claire Madrid and the conundrum facing the Applicant’s wife, I would be at risk of adopting an overly ‘…formulaic approach, straightjacketing [myself] by the parameters fixed by the Minister in [Direction 99]…to the exclusion of considering key elements or key ‘integers’ of the case presented by [the Applicant]…’[92] For the purposes of these Reasons, I find that the interests of Ms Madrid and the conundrum facing the Applicant’s wife do constitute key elements or integers of this case. On that basis, I will consider those specific integers under this separate Other Consideration (e).
[92] Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94, per Logan , Derrington, Anderson JJ at [18].
Ms Claire Madrid provided both oral and written evidence[93] to the instant Hearing. In her oral evidence-in-chief she spoke of a happy childhood and a wonderful upbringing under the care of her parents. She was aware of the nature of the Applicant’s offending but thought her father was not really capable of such conduct. Ms Madrid was also cross-examined. She told the Hearing she had lived in New Zealand for just over eight years, from the beginning of 2015. She moved there to be with her partner who had already relocated to New Zealand. She and her partner have one child aged about 15 months and are looking to have a second child.
[93] R1, p 191.
She confirmed the Applicant has met her partner when the latter previously travelled to Australia. Ms Madrid currently works full-time as an Executive Assistant and her partner works as a Firefighter. They sustain a mortgage over their residential property. She also mentioned that her family in Australia, comprising her mother and sibling, Mr Alec Davidson, travelled to New Zealand to be with her for her wedding on 10 February 2018. She was referred to a possibility of the Applicant – in the event of him not being successful in the instant application - relocating to New Zealand but said that those discussions were virtually non-existent but that she had briefly discussed such scenario with her mother sometime ago.
She thought it was not practical for the Applicant to move and reside in New Zealand because of his criminal record. She agreed that if the Applicant did, theoretically, intend to reside in New Zealand she would do all she could to support him including providing him with money commensurate with the extent of her means to do so. She added that the current cost of living crisis would make it very difficult for her to financially support or contribute towards the Applicant.
The specific integer of the evidence of Ms Madrid derives from a likelihood that both she and her child/ren will be significantly prevented from visiting the Applicant in Scotland compared to Australia. It emerged during her re-examination that if removed to Scotland, it is unlikely that she and her child/ren would ever see him again.[94]
[94] See generally, Transcript, p 120, lines 21-47.
Mrs Wendy Davidson: I have earlier discussed the evidence of Mrs Davidson. For the purposes of this particular integer I have identified, it is necessary to look at her evidence to understand the specific conundrum she is facing in the event of the Applicant’s removal. On the one hand, she explained in her evidence-in-chief the extent of her devotion to her husband:
‘DR PALK: And if he were sent back to Scotland, what do you think would happen to him?
MRS DAVIDSON: ---Well, he’s got nowhere to go and no one to go to. He’s got no one over there. He’s got a 94 year old aunt who’s in a nursing home. You know, he’s got nowhere to go. He’s got no money. They wouldn’t give him money. He’s got to be in the country for 10 years to get the pension. You know, I don’t know what would happen to him. It’s cold over there. You know, he’s got no funds to pay for doctor’s bills and have specialists look at his face for cancers, and things like that, and his body for cancers. I just don’t know what would happen if he went there.
DR PALK: Would it be fair to say that you’re totally committed and dedicated to your husband?
MRS DAVIDSON: Absolutely, totally.
DR PALK: And that you love him very deeply?
MRS DAVIDSON: I would like to go through and have our vows renewed. That’s how much I want to commit – how much I’m committed to him.’[95]
[My emphasis]
[95] Transcript, p 89, lines 17-32.
On the other hand, were she to relocate to Scotland with him, she would place a considerable distance between herself and her child (Mr Alec Davidson) and his family in Australia and her other child (Ms Claire Madrid) and her family in New Zealand:
‘MR CHAN: ….So at the moment, as I understand your evidence, if your husband were to relocate to Scotland you would relocate to Scotland with him but you just don’t know how to pay for the finances; is that correct?
MRS DAVIDSON: I would love to relocate there. It would mean I’d miss – we wouldn’t be able to see our children and grandchildren. I don’t know if they’d be able to afford to go over there either and if I did go with him, I don’t know how we’re going to survive on the money we’ve got. I mean it’s not going to last very long. [96]
[My emphasis]
[96] Transcript, p 91, lines 44-47; p 92, lines 1-3.
Findings about these Other Integers raised by the evidence
For reasons I have outlined, the Full Court says it is open to this Tribunal to take these Other Integers into account and to weigh them in the overall exercise of the Tribunal’s discretion. I am of the view that (1) the adverse impact of the Applicant’s removal on Ms Madrid’s capacity (and that of her own family) to see the Applicant again; and (2) the dreadful conundrum confronting Mrs Wendy Davidson are both integers of the evidence that confer a moderately strong level of weight towards this Other Consideration (e) weighing in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of strong weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight;
(e)other integers raised by the evidence: is of moderately strong weight in favour of revocation.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a heavy, but not determinative level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a very heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of moderate weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a strong weight in favour of affirming the Decision Under Review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 plus Other Considerations (b) and (e) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
The Tribunal is appreciative of the support and assistance afforded to it by the parties’ representatives. In particular, the Tribunal respectfully notes and commends the pro-bono basis upon which Counsel and instructing solicitors conducted the matter on behalf of the Applicant.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made on 22 November 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

I certify that the preceding 229 (two hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............[SGD]..................
Associate
Dated: 26 February 2024

Dates of hearing: 12,13 and 14 February 2024

Counsel for the Applicant: Dr Gavan Palk (Inns of Court)

Solicitor for the Respondent: Mr Alex Chan (Special Counsel)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

RESPONDENT SUBMISSIONS

R1 Section 501G documents Various 8 December
2023

R2 Statement of Facts, Issues and Contentions 24 January 2024 24 January 2024

R3 Tender bundle Various 24 January 2024

R4 Further tender bundle Various 30 January 2024

APPLICANT SUBMISSIONS

A1 Applicant’s statement (submission titled ‘Ties to Australia’) 27 September 2021
17 January 2024

A2 Statement of Facts, Issues and Contentions (submission titled ‘Charles William Davidson Submission’) Undated
17 January 2024

A3 Applicant’s resume Undated
17 January 2024

A4 [Draft version] Clinical report by Tania Dhillon 15 September 2023
29 January 2024

A4.1 [Final version] Clinical report by Tania Dhillon and Ms Dhillon’s CV 6 February 2024 7 February 2024

A5 Applicant’s patient health summary (13 pages, printed on 19 January 2024) Various
29 January 2024

A6 Applicant’s discharge summary from Queensland Health
(10 February 2016) Various 17 January 2024

A7 Applicant’s discharge summary from Queensland Health (various dates) Various 17 January 2024

A8 Courses and charity events achievements Various 17 January 2024

A9 Getting started: Preparatory Program Completion Report September 2023 17 January 2024

A10 Summary of programs completed Various 17 January 2024

A11 Letter of remorse 4 December 2023 17 January 2024

A12 Abstract of article titled ‘Denial and minimisation among sex offenders’ Undated 29 January 2024

A13 Journal article titled ‘Relationships Between Denial, Risk, and Recidivism in Sexual Offenders’ 9 August 2014 29 January 2024

A14 Statutory declaration from Ms Wendy Davidson (Applicant’s partner) 27 April 2023 17 January 2024

A15 Statutory declaration from Mr Clayton Browne (Applicant’s acquaintance from previous employment) 5 May 2023 17 January 2024

A16 Statutory declaration from Ms Angela Margaret Rossiter (Fiancée of Applicant’s son) 27 April 2023 17 January 2024

A17 Statutory declaration from Mr Alec Davidson (Applicant’s son) 27 April 2023 17 January 2024

A18 Submissions from Dr Palk 29 January 2024 29 January 2024

A19 Bundle of case law Various 29 January 2024

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	8 December 2023
R2	Statement of Facts, Issues and Contentions	24 January 2024	24 January 2024
R3	Tender bundle	Various	24 January 2024
R4	Further tender bundle	Various	30 January 2024
APPLICANT SUBMISSIONS
A1	Applicant’s statement (submission titled ‘Ties to Australia’)	27 September 2021	17 January 2024
A2	Statement of Facts, Issues and Contentions (submission titled ‘Charles William Davidson Submission’)	Undated	17 January 2024
A3	Applicant’s resume	Undated	17 January 2024
A4	[Draft version] Clinical report by Tania Dhillon	15 September 2023	29 January 2024
A4.1	[Final version] Clinical report by Tania Dhillon and Ms Dhillon’s CV	6 February 2024	7 February 2024
A5	Applicant’s patient health summary (13 pages, printed on 19 January 2024)	Various	29 January 2024
A6	Applicant’s discharge summary from Queensland Health (10 February 2016)	Various	17 January 2024
A7	Applicant’s discharge summary from Queensland Health (various dates)	Various	17 January 2024
A8	Courses and charity events achievements	Various	17 January 2024
A9	Getting started: Preparatory Program Completion Report	September 2023	17 January 2024
A10	Summary of programs completed	Various	17 January 2024
A11	Letter of remorse	4 December 2023	17 January 2024
A12	Abstract of article titled ‘Denial and minimisation among sex offenders’	Undated	29 January 2024
A13	Journal article titled ‘Relationships Between Denial, Risk, and Recidivism in Sexual Offenders’	9 August 2014	29 January 2024
A14	Statutory declaration from Ms Wendy Davidson (Applicant’s partner)	27 April 2023	17 January 2024
A15	Statutory declaration from Mr Clayton Browne (Applicant’s acquaintance from previous employment)	5 May 2023	17 January 2024
A16	Statutory declaration from Ms Angela Margaret Rossiter (Fiancée of Applicant’s son)	27 April 2023	17 January 2024
A17	Statutory declaration from Mr Alec Davidson (Applicant’s son)	27 April 2023	17 January 2024
A18	Submissions from Dr Palk	29 January 2024	29 January 2024
A19	Bundle of case law	Various	29 January 2024

ANNEXURE B

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2023/8978

GENERAL DIVISION )
Re: Charles William Davidson

Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   14 February 2024
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made on 22 November 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

………............[SGD]................................
Senior Member Theodore Tavoularis

Date	Court	Offence	Outcome
2 March 2018	Brisbane District Court	18 counts of ‘sexual assaults’[5]	two years imprisonment
2 March 2018	Brisbane District Court	one count of ‘rape’[6]	five years and six months imprisonment
6 May 2021	Brisbane District Court	Three counts of ‘indecent treatment of children under 16’[7]	18 months imprisonment
6 May 2021	Brisbane District Court	30 counts of ‘sexual assaults’[8]	three years imprisonment
6 May 2021	Brisbane District Court	Seven counts of ‘rape’[9]	four years imprisonment

Dates of hearing:	12,13 and 14 February 2024
Counsel for the Applicant:	Dr Gavan Palk (Inns of Court)
Solicitor for the Respondent:	Mr Alex Chan (Special Counsel)
Sparke Helmore Lawyers