Dick and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3785

Dick and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3785 (9 November 2022)
Division:GENERAL DIVISION
File Number: 2022/6474
Re:Iain Charles Stuart Dick
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

reasons for Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 November 2022
Place:Perth

On 31 October 2022, I made the following decision:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 August 2022, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are my written reasons.
..............[Sgd]...................................................
Senior Member Dr M Evans-Bonner
Catchwords
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – possession of child exploitation material – Applicant is a 65-year-old man who arrived in Australia from the United Kingdom when he was a 12-year-old child – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the offending – risk to the Australian community – expectations of the Australian community –links to the Australian community – strength, nature and duration of ties to Australia – impediments if removed to the United Kingdom – Applicant is an amputee with significant health issues and has been medically certified as presently unable to travel – prospect of indefinite or prolonged detention – Reviewable Decision set aside and substituted
Legislation
Criminal Code Act Compilation Act 1913 (WA) s 220
Migration Act 1958 (Cth) ss 195A, 197AB, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(1), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Cases
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3498
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2738
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Wu and Minister for Immigration and Citizenship [2012] AATA 834
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
9 November 2022
Background

The Applicant is a 65-year-old man who was born in the United Kingdom. He left the United Kingdom with his parents when he was 18 months old to live in Kenya. When he was 12 years of age, the Applicant immigrated to Australia with his parents (G54/319-320).
He came to Australia in November 1969 (G54) and has not departed Australia since his arrival.
On 25 May 2021, the Applicant pled guilty and was convicted in the Perth District Court of “possessing child exploitation material”. On 27 May 2021, he was sentenced to a total of twelve months imprisonment (G4/29; G5/44).
Consequently, the Applicant’s Class BF transitional (permanent) visa (Visa) was mandatorily cancelled on 3 August 2021 (G6/45) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (Cancellation Decision). The Applicant signed to acknowledge receipt of this letter on 4 August 2021 (G7/54). The notification letter advised the Applicant that he could make representations to the Minister to seek revocation of the Cancellation Decision.
In a letter dated 31 August 2021, the Applicant’s legal representatives, made representations to the Minister on his behalf requesting revocation of the Cancellation Decision. They submitted a request for revocation, a personal circumstances form and a volume of supporting evidence (G8; G10; G11; G12-G52).
However, on 3 August 2022, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/12). This is the Reviewable Decision currently before me.
The Applicant’s legal representatives were notified of the Reviewable Decision by email on 8 August 2022 (G3).
On 10 August 2022, the Applicant personally lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G2). At that time, he did not have legal representation and was representing himself. Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 8 August 2022, meaning that I was required to hand down a decision on or before 31 October 2022.
Issues
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
The hearing and the evidence
This application was heard on 26 October 2022 at the Perth Registry of the Tribunal. It was initially listed for 11 October 2022, however, close to that time the Applicant re-engaged his lawyers who required further time to prepare.
The hearing took place in person. The Applicant was represented by Ms KJ Everett of WL & KJ Everett Barristers and Solicitors. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
The Applicant gave evidence at the hearing. His younger sister, L, also gave evidence. Both were cross-examined.
I admitted the following documents into evidence at the hearing:
(a)Applicant’s Witness Statements and Bundle of Documents, numbered 1 to 12 and comprising pages 1 to 290 (Exhibit A1);
(b)Section 501 G-Documents, numbered G1 to G56, comprising pages 1-344 (Exhibit R1); and
(c)Summons Bundle, numbered 1-3, comprising pages 1-68 (Exhibit R2); and
(d)Bundle of Documents comprising the Applicant’s IHMS records, comprising pages 1-17 (Exhibit R3).
The Respondent filed an Amended Statement of Facts, Issues and Contentions (SFIC) dated 5 October 2022, prior to the hearing. The Applicant filed a SFIC dated 17 October 2022.
Legislative Framework
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia 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.
(2)Non-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.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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 8.4(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 measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I noted in the “Background” section above, on 27 May 2021, the Applicant was sentenced to a term of 12 months’ imprisonment for the offence of “possessing child exploitation material”.
He has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the 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).

Before evaluating the nature and seriousness of the Applicant’s offending (para 8.1.1(1) of Direction No 90) I will briefly outline his offending history.
The Applicant does not have a lengthy criminal and/or traffic history.
The Applicant was convicted of Commonwealth copyright offences comprising four counts of “copyright article make for sale” and four counts of “copyright article distribute” (Copyright Offences). He was sentenced in the Perth Court of Petty Sessions on 25 May 1995 and received two fines of $1,000 and two good behaviour bonds of two years (R2/7). These offences involved the Applicant making copies of computer game software that he sold for $3.00 per disc by mail order (R2/46-47 and 51).
He received a $100 fine on 21 January 2010 for “unlicensed vehicle (owner/driver)” committed on 12 November 2009 when he drove an unlicensed vehicle on a highway (R2/7; 35; 59).
As mentioned above, on 25 May 2021, the Applicant pled guilty and was convicted in the Perth District Court of “possessing child exploitation material”. He was sentenced to a total of twelve months imprisonment on 27 May 2021 (G4/29; G5/44).
The sentencing Judge, Russell DCJ, described the facts of this offending as follows (R2/11-12):
In summary, on Thursday 23 July 2020, detectives from the Joint Anti-Child Exploitation Team executed a search warrant at your home address in Lynwood. After detectives explained the search warrant to you, you admitted that there was possible child exploitation material stored on a desktop computer.
You were arrested on suspicion of child exploitation material and you participated in a video-recorded interview at the scene in which you identified the computer on which you stored the child exploitation material. A Core Master brand desktop tower was seized from your address on which a significant quantity of child exploitation material was located. That material was subsequently categories [sic] using the Child Exploitation Material Sentencing Classification Scheme as follows.
In category 1, that’s depicting children under the age of 16 years engaged in sexual or indecent photographs, either naked or semi-naked, 6,026 images and three videos.
In category 6, depicting Anime characters of children involved in sexual poses and activity, there were 204 images and 34 videos.
Two USBs were also seized and analysed as follows. There were 50 category 1 images and 13 category 6 images on a SanDisk brand USB drive. There were 24 category 1 images and category 6 images on a Verbatim brand USB drive. You admitted that there was child exploitation material on your desktop computer but denied there was any on your USB drives.
Assessing the nature and seriousness of the conduct
Certain offending conduct is listed in para 8.1.1(1)(a) and (b) as being “serious” and “very serious”. The Minister has not specifically included crimes against children and/or child exploitation material offences in the offences listed in Direction No 90. However, “sexual crimes” are specified in para 8.1.1(1)(a)(i) as being “very serious”, and “crimes committed against vulnerable members of the community” are listed in para 8.1.1(1)(b) as being “serious”. The possession of child pornography is a sexual crime against vulnerable children, and I find that both definitions are satisfied. This approach is consistent with that taken the Tribunal in other applications (see RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2738 at [31] (RDYQ)).
If there is any doubt about whether these listed offences capture child exploitation material, I note that the conduct described in those sub-paras is not exhaustive, and the Tribunal has previously recognised that the possession of child exploitation material is very serious offending (see Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3498 at [75]; Wu and Minister for Immigration and Citizenship [2012] AATA 834 at [51]).
The serious nature of the Applicant’s offence was also described by the sentencing Judge, Russell DCJ, who stated that: “Possession of child exploitation material is a serious offence”.
Russell DCJ further stated that the volume of the material possessed by the Applicant made the offending more serious (R2/14):
… though the material in your possession was not in the most serious categories, your offending is aggravated, that is it’s made more serious, by the sheer volume of child exploitation material which you’ve admitted collecting since 2007 until about 2010. It’s remained in your possession since then, which is a significant amount of time.
…
… whilst it’s not at the top end of the range given the categories in which the material falls it is not at the lower end of the scale given the significant volume of material.
With respect to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90), the Applicant received fines and good behaviour bonds for the Copyright Offences, and for his unlicensed driving offence, which suggests that these are less serious offences. However, he received an immediate sentence of 12 months imprisonment for the possession of child exploitation material offence. Her Honour Russell DCJ observed that (R2/11):
The gravity and seriousness of your offending is reflected by the statutory maximum penalty for the offence committed. The maximum penalty for the offence of possessing child exploitation material is seven years’ imprisonment. The maximum statutory penalty indicates how serious this type of offence is regarded to be by the Parliament of Western Australia representing the community.
And further, Her Honour stated (R2/22), “the circumstances and seriousness of the offence is such that a term of immediate imprisonment is the only appropriate sentence”. Her Honour also found that it would not be appropriate to suspend the term of imprisonment due to the seriousness of the offending. The Applicant was made eligible for parole after serving six months of his sentence. Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]). Her Honour considered the difficulties the Applicant would face serving a sentence of imprisonment due to his poor health, amputated leg and mental health issues, but nevertheless found that a custodial sentence of imprisonment was appropriate. Even though the Applicant received less than the seven-year statutory maximum, I find that the 12-month sentence of imprisonment in his circumstances reflects the seriousness of his offending.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant has a short criminal history. There is approximately 26 years between the Copyright Offences and the possession of child exploitation material offence. Although he was in possession of more than 6000 images, he was convicted of one count, and so his offending cannot be regarded as frequent. There is a trend of increasing seriousness because his possession of child exploitation material offence is significantly more serious than his earlier offending.
I do not consider that there would be a cumulative effect of repeated offending given the Applicant’s short criminal history, his having only served one sentence of imprisonment and the gap in his criminal offending of 26 years (para 8.1.1(1)(e) of Direction No 90).
The Applicant has not provided any false or misleading information to the Department of Home Affairs, such as by not disclosing prior offending (para 8.1.1(1)(f) of Direction No 90).
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
The Applicant committed less serious Copyright Offences approximately 27 years ago, and a minor driving offence approximately 13 years ago. However, his possession of child exploitation material offence is very serious offending. This is demonstrated by the nature of the offences which involve the exploitation and degradation of vulnerable children, the sentencing Judge’s remarks about the Applicant’s offending and the sentence imposed despite the Applicant’s health vulnerabilities. In this regard, I note principle 5.2(5) of Direction No 90. This provides that the inherent nature of some offences, including the examples mentioned in 8.4(2) of Direction No 90, with sub-para (c) referring to the Commission of serious crimes against children, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling the Visa.
For these, and the other reasons that I have outlined above, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The harms of possessing child exploitation material were outlined by the sentencing Judge, Her Honour Judge Russell DCJ (R2/12):
… the production of child pornography involves the exploitation and corruption of children who are incapable of protecting themselves.
Child pornography is not a victimless crime. The children are the victims. They are abused, violated and degraded in the production of the material. Those who possess child exploitation material or deport it fuel demand for the corruption and exploitation of children. Such behaviour stimulates the supply side, the children, to incalculable harm. The harm caused by child exploitation material is more extensive because child pornography is a permanent record of the depicted children’s abuse, and harm to the children is exacerbated by its circulation.
I agree with the findings of Her Honour regarding these very serious harms. I also find the following statement from Senior Member Kelly in RDYQ at [37] to apply to the Applicant’s offending:
If the applicant reoffended, incalculable physical and/or psychological harm could be suffered by vulnerable children in Australia who may be exploited for the purpose of generating the material sought by the applicant.
If the Applicant were to commit similar offences in the future, the harm that could result to children would be so serious that any risk of reoffending is unacceptable (para 8.1.2(1) of Direction No 90).
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The Applicant does not have a lengthy criminal history. An extensive pattern of offending over many years may tend to suggest some likelihood of future reoffending. However, this is not the case in the Applicant’s situation. His previous criminal offences, being the Copyright Offences, were committed over 27 years ago, showing that he can be in the community for an extensive period without any offending.
The Applicant does not have any issues with, and there is no evidence of any use of, illicit drugs or alcohol.
There is no formal psychological assessment of the Applicant before me. The sentencing remarks refer to the Applicant being a low risk of re-offending due to his health conditions (R2/16). They also refer to the Applicant as having been assessed in the pre-sentence report as not requiring a sex offenders treatment program due to his low risk of reoffending, but that he needs to address his mental health symptoms and cognitive distortions (R2/15-16 and 18). His mental health symptoms were described as “severe symptoms of depression and anxiety” (R2/15). I asked the Applicant about his mental health at the hearing. In response, he described his physical health issues to me. When questioned further, he said he was not taking medication or receiving mental health treatment, and so these issues appear to have resolved. He has not had any treatment for “cognitive distortions including minimisation of and justification of [his] offending behaviour” (R2/15-16).
After hearing his evidence, I was not of the view that the Applicant tried to minimise his offending. However, I did have doubts about whether the Applicant fully appreciated how serious his offending was. The sentencing Judge described some of the report writer’s comments about the Applicant having “limited insight into [his] offending and [that he] did not understand the implications of the images on the child victims and [his] contribution towards this”. This was consistent with the Applicant’s evidence at the Tribunal hearing where he stated that he had thought the images were legal when he received them from a pen friend in South Africa. Below, in the other consideration of “impediments if removed”, I discuss the evidence about whether the Applicant has a cognitive impairment. For the reasons I discuss in that section, I accept that the Applicant likely has some sort of intellectual or cognitive impairment that makes him emotionally immature and childlike. This may have contributed to the Applicant’s lack of insight, however, unfortunately that lack exists regardless of whether there is a reason for it.
The Applicant also gave evidence that he pled guilty to possessing approximately 1000 child exploitation images, but that he was sentenced based on possessing approximately 6000 images. The original statement of material facts prepared by Western Australia police dated 23 July 2020 stated that: “On initial inspection in excess of 1000 images were located” (R1/301-302). According to the sentencing remarks, the Applicant pled guilty in the Magistrates Court on 19 January 2021 (R2/10). An amended statement of material facts dated 30 March 2021 prepared by the Office of the Director of Public Prosecutions and filed in the Perth District Court refers to the Applicant being in possession of over 6,000 images. I note from Her Honour’s sentencing remarks that written submissions were filed by the Applicant’s lawyer on 13 May 2021 and by the State on 20 May 2021, although I do not have any details about the content of those submissions (R2/10). The Applicant was sentenced on 27 May 2021 based on being in possession of over 6000 images. I am required to accept that the Applicant possessed over 6000 images because the number of images was an aggravating factor that was relevant to the seriousness of the offending and the sentence imposed (R2/14). That is, the number of images was an essential fact on which the sentence was based (see Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] which was upheld by a majority of the Full Federal Court on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP Full Court)).
The Applicant’s family members raised concerns about the competence of his lawyer in the criminal proceedings. His sister, L, was of the view that he would not have received a sentence of imprisonment or that he would have received a lesser sentence with more competent legal representation. I understand her to be saying that the number of images should have been corrected by the lawyer to 1000 images and if that had happened, the Applicant may have received a lesser sentence that may not have resulted in the cancellation of his Visa. L stated that she had doubts about the Applicant’s lawyer, but that she could not persuade the Applicant to engage anyone else, and that the Applicant had given his life savings of $10,000 to the lawyer who did not attend the police station to inspect the images and was demanding more money to do so.
The Applicant’s lawyer was found by the State Administrative Tribunal (SAT) to have engaged in professional misconduct, including charging for work he did not do, creating false and misleading accounts and making misleading statements. In 2021, the SAT transmitted a report to the Supreme Court with a recommendation that the lawyer be struck off the roll of practitioners. However, there is insufficient evidence upon which I can draw conclusions about whether the lawyer competently represented the Applicant in the criminal proceedings and, if so, whether any lack of diligence in the Applicant’s criminal case contributed to a miscarriage of justice that would permit me to look behind the conviction to accept that there were only 1000 images. That is, there is insufficient evidence to conclude that the incompetence of the Applicant’s lawyer led to a miscarriage of justice which constituted “a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted” in HZCP Full Court at [191].
At the hearing, the Applicant strongly disagreed with comments in the sentencing remarks that suggested he had a longstanding interest in teenage and prepubescent children. These comments in the sentencing Judge’s remarks are based on the pre-sentencing report. The report itself is not before me, and so I am reliant on Her Honour Russell DCJ’s description of the content of this report. The author of the pre-sentence report identified “risk factors” which led to the offending including “problems with self-awareness, a sexual interest in children, that [the Applicant is] emotionally immature, psychologically dependent and childlike” (R2/15). According to the sentencing Judge, the author also stated that the Applicant told her that his sexual interest in children spanned over 40 years and that he was interested in women with prepubescent features (R2/14). When asked about this at the hearing, the Applicant disagreed that this was what he told the report writer. This is somewhat perplexing because I do not think that the report writer would have had any motivation not to tell the truth, although there was potentially a possibility for misunderstanding because the report was prepared over the telephone during a period of Covid-19 restrictions.

Despite the comments in the pre-sentence report, I am not reasonably satisfied that the Applicant had a longstanding interest in teenage or prepubescent girls. Any such interest was not an element of the offence, nor was it a factor that was relevant to the formulation of the sentence, and so it is open to me to form a contrary view. I accept the Applicant’s evidence that he had not viewed the images since 2010 and that he thought that he had deleted them many years ago. However, actual possession of child exploitation alone is sufficient without the prosecution having to prove that it was accessed (s 220 of the Criminal Code Act Compilation Act 1913 (WA)).
The Respondent submitted that documentation seized by police as part of the Copyright Offences supported a finding that the Applicant did have a longstanding interest in prepubescent girls. However, the Applicant’s evidence was that the correspondence which referred to pornographic video tapes was not written by him but was sent to him. I accept this evidence which was consistent with it being addressed to the Applicant and signed off by “Robert” and “Jim” (R2/53-54). There was also a list of pornographic videos, which the Applicant said was not his, but was sent to him (R2/55). There is another typed list that looks like an order for pornographic videos off that list, with titles referring to young and teenage girls, but it is unsigned, and the Applicant denied it was his. Finally, there is a list that is headed, “Order Iain” which contains a list of computer games. This is consistent with the Copyright Offences that the Applicant was charged with which concerned pirated computer games. I also note a letter from the Australian Federal Police which states that there was a pending prosecution of the Applicant for breaches of the Copyright Act, but that police were concerned about the person he dealt with in the United States as potentially being able to obtain child pornography to sell via the post (R2/51). The Applicant was not charged with possessing any child exploitation material, nor did police express any concerns about him in that regard. I am therefore not satisfied that any inference can be drawn from this material that the Applicant had sought out any child exploitation material, or that he had a longstanding interest in prepubescent girls.
As I also discuss below under the “impediments if removed” other consideration, the Applicant has significant physical health and mobility issues. The sentencing Judge commented that his health issues had decreased the Applicant’s libido (R2/18). However, the Applicant can still use a computer, and I note that being on the computer and watching documentaries on the internet was stated by the Applicant as being part of his daily routine in his National Disability Insurance Scheme (NDIS) plan (A1/63).
The Applicant served his full sentence of imprisonment, despite the sentencing Judge making him eligible for parole after serving half his sentence. He therefore would not have the benefit of a period of parole to help him reintegrate into the community. There is no evidence from the Prisoners’ Review Board, nor any parole reports before me. The Applicant’s evidence, which I accept, was that he did not apply for parole.
The Applicant has strong support from his three siblings who each provided statutory declarations and were present at the hearing. They are fully aware of the details of his offending and lent him money to help fund his legal costs. His sister, L, who is also his power of attorney, has been in contact with his NDIS coordinator who will arrange shared home accommodation for him if he is released into the Australian community (A1/26-27).
There are some risk factors including the Applicant’s intellectual impairment and emotional immaturity, his inability to fully appreciate the seriousness of his offending, and his daily hobby of internet access. However, I do not think that these factors, or any of the evidence discussed above, is sufficient to elevate the Applicant’s risk from the low risk that was accepted at sentencing, to a higher risk. Overall, I find that the risk of the Applicant reoffending is likely to be low.
Despite the Applicant being a low risk of reoffending, as I found above, offending of this nature, which involves the exploitation and degradation of children, is so serious that any risk of it being repeated is unacceptable. I therefore find that paragraph 8.1.2 of Direction No 90, being the risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that paragraphs 8.1.1 and 8.1.2 both weighed strongly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any family violence and so this primary consideration is not applicable.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration. Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. No children have been identified whose interests may be affected by this decision. Consequently, this primary consideration is not applicable.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws. He has committed the very serious offence of “possessing child exploitation material”. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) and 8(4) of Direction No 90).
As is evident from the reference to the “norm” in paragraph 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f). Real children are abused and trafficked in the production of child exploitation material. I find that the Applicant’s offending falls within one of the categories of conduct described in sub-paragraph (c) which is the commission of serious crimes against children.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. I found above that the Applicant is likely to pose a low risk of reoffending, however, the community’s expectations as stated apply regardless.
Further, paragraph 8.4(4) of Direction No 90 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. For example, as part of my consideration of this primary consideration, I cannot speculate about what the community’s views might be if they were informed that the Applicant may face indefinite or prolonged detention.
I note the principle in 5.2(4) of Direction No 90. The Applicant arrived in Australia in November 1969 when he was 12 years old, and he is now 65 years of age. I therefore find that the Australian community would have a higher level of tolerance for the Applicant’s conduct because he has lived in the Australian community from a young age. This, in my view, reduces the weighting of this primary consideration slightly from weighing very strongly, to weighing strongly, against the revocation of the Cancellation Decision.
Accordingly, I find that paragraph 8.4 of Direction No 90, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
Australia’s international non-refoulement obligations do not arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90). I note that the Applicant’s legal representative did not advance any submissions or claims of non-refoulement on his behalf. I find that this other consideration of Australia’s international non-refoulement obligations is not applicable.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 65 years of age. He has some significant health issues.
The Applicant has impaired mobility because his right leg has been amputated below his right knee and has left leg oedema (fluid retention) and reduced lower leg sensation, making him unable to bear any weight on his left leg. He uses an electric wheelchair.
Prior to his incarceration, the Applicant was in receipt of NDIS funding for the period 10 February 2020 to 9 February 2021 of approximately $59,669 (A1/60-73). A physiotherapy report dated 31 May 2022 assessed the Applicant as requiring “rails in bathroom, raised toilet seat and shower chair”, and “rails to prevent falls” if he is in a single bed (R3/3).
He has type 2 diabetes mellitus for which he takes medication including insulin.
The Applicant has hypertension, coronary heart disease and congestive cardiac failure, a progressive condition that affects the pumping power of the heart. He suffered his first myocardial infarction (heart attack) at 43 years of age and has had four subsequent heart attacks.
He suffers from a range of other health conditions including asthma, sleep apnea, vitamin D deficiency, morbid obesity, arthritis in his back, chronic kidney disease, diabetic retinopathy, and skin lesions (R3/5-16).
An IHMS “request for specialized complex care placement” report dated 11 August 2022 (R3/10) states that the Applicant “currently requires a carer 24/7 for personal care and falls prevention”. Although some of the conditions I have described above are repeated in the following excerpt of the report, it is worth repeating because it comprehensively explains the Applicant’s multiple comorbidities, his mobility issues, and the personal care that he requires (R3/11):
Mr DICK has multiple comorbidities that require strict medication adherence and supervision.
Mr DICK has a history of right leg amputation from below the knee as a result of long-standing diabetic issues. Mr DICK is unable to weight bear, balance or turn on his own and he mobilises solely in an electric wheelchair. Mr DICK requires assistance with all transfers from his bed, chair, or wheelchair. DICK’S physiotherapist has assessed Mr Dick as being a high risk of falls and he requires carers 24/7 to assist with his safe transfers and for all activities of daily living (ADL’s).
Mr DICK also has a history of cardiac failure and he has had multiple myocardial infarctions. Mr DICK is known to cardiac specialist teams and he is prescribed long term anticoagulant medication and diuretic medication to manage his cardiac disease. Should Mr DICK have a fall, his chance of severe injury (brain or another organ bleed) and/or death is increased as a result of his co-morbidities and prescribed anticoagulant medication. Furthermore, diuretic medication is associated with an increased risk of falls.
Mr DICK requires ongoing disability support, allied health (physiotherapy and occupational therapy) and equipment needs that will likely increase over time. Mr DICK’S current placement is not appropriate as it is not wheelchair (particularly for an electric wheelchair - which is wider, heavier and has a much wider turning circle than a manual wheelchair) or disability friendly. IHMS strongly recommends a complex care placement in a disability supported independent living accommodation with access to required equipment, specialist services, carers and nursing staff for medication delivery, to assist with his ADL’s and for falls risk mitigation.
(As original.)
On 11 August 2022, a primary health nurse from IHMS certified the Applicant as not being fit to travel at that time due to his “ongoing angina, complex medical comorbidities requiring stabilisation and investigation prior to travel” (R3/17). Dr Amro Sehly, a junior medical officer in the cardiology department at the hospital that treats the Applicant’s heart conditions, gave an opinion on 3 October 2022 that the Applicant was currently unfit to travel and that he was at risk of a heart attack, heart failure or a deadly arrhythmia. However, Dr Sehly also stated that further tests were being undertaken to clarify the risk which would give a more definite indication of whether the Applicant could travel in the future (A1/30-31).
If the Applicant is removed, his health issues are likely to be significant impediments. He is unlikely to be able to find employment and accommodation and, at a more fundamental level, he is likely to have difficulty subsisting if he is returned to the United Kingdom. In this regard I note the sentencing Judge, Russell DCJ stated that the Applicant “struggled to tolerate work and [his] longest paid job was only for a few months” (R2/17).

Although Her Honour Russell DCJ stated that the psychologist who wrote the pre-sentence report noted “severe symptoms of anxiety, depression and stress” (R2/17), there is no reference to the Applicant having such a diagnosis in any of the medical evidence before me. As I mentioned above, when I asked the Applicant about his mental health at the hearing, he told me about some of his physical health issues and did not identify any mental health issues. He said that he was not taking medication for any mental health issues. He is likely, however, to suffer emotional detriment and distress if he is removed from his family and medical treatment providers to a country that is unfamiliar to him in the context of having significant and complex health issues that require ongoing treatment intervention and support.
The Applicant does not have any social supports in the form of family or friends in the United Kingdom who could provide him with any form of support if he were returned there. I note that the sentencing Judge, Russell DCJ, observed that the Applicant had always lived at home with his mother. Her Honour described the Applicant, based on his pre-sentence report, as being “an isolated individual with very few friends” and that he had “struggled with intimacy and relationships throughout [his] life due to [his] emotional immaturity and a lack of self-awareness” (R2/16-17). As I mentioned above at para [68], Her Honour noted that the pre-sentence report stated that he was “emotionally immature, psychologically dependent and childlike” (R2/15). The Applicant’s lack of social supports and emotional immaturity are likely to be additional impediments to his being able to establish himself and maintain basic standards of living if he is returned to the United Kingdom.
At the hearing, the Applicant’s legal representative submitted that he had an intellectual disability. She conceded that there was no medical evidence of any mental disability before the Tribunal. There is some evidence in statements from the Applicant’s siblings. His sister F, stated that the Applicant, “has not developed to adult maturity, making it difficult for him to cope in an adult environment” (G14); his other sister, L, described him as “very much a recluse” (G15); and his brother, S stated that “I think [the Applicant’s] maturity level has never really kept up with his age, maybe because he lived at home his whole life it [sic] never had a chance to grow with his restricted life experiences like normal people do” (G16). In a more recent statement (dated 17 October 2022), L stated (A1/18):
17.I think Iain has a low IQ. He is not “stupid” but just struggles with a lot of things in life, he certainly has some sort of intellectual disability but there has never been a need to identify this as our parents always looked after him.
18.Sometimes Iain acts like an adult but then on other occasions he comes across as a child and I don’t really understand this.
19. Iain is not capable of looking after himself.
20.As a result of his intellectual impairment Iain has never been able to keep a stable job of any sort. I think if he was working in some form of disabled employment or sheltered employment he might be able to cope, but he is not suited to mainstream paid employment because of his impairment.
Based on the sentencing Judge’s remarks, the evidence of the Applicant’s siblings, and the Applicant having lived at home with his mother until his incarceration, I accept that he likely has some sort of impairment that makes him emotionally immature and childlike. Thus, although there are no language or cultural barriers, this impairment is likely to be an additional impediment that would inhibit the Applicant’s ability to cope without family support, to seek employment, to access medical services and to sustain himself if he is returned to the United Kingdom.
The Applicant would be eligible to receive treatment under the National Health Service (NHS) if he was returned to the United Kingdom. However, given his mobility issues, intellectual impairment, dependency on others to help him, and the complex nature of his care needs, I am concerned about his ability to be able to access medical services, particularly specialist cardiology services, given that the medical evidence indicates that the Applicant requires a high level of ongoing medical care.
The Applicant would be entitled to some limited social security benefits in the form of monthly Universal Credit Payments but would not be entitled to Personal Independence Payments (PIP) which is the equivalent of an Australian Disability Support Pension, because that payment has a residence requirement of residing in the United Kingdom for at least two of the last three years before a person becomes eligible.
The Applicant’s mother recently passed away, leaving her house to the Applicant and his siblings. The house is currently on the market, and based on the evidence of his sister, L, if it is sold the Applicant will receive a quarter share, less legal fees of approximately $40,000 that he owes his siblings. He would therefore have some money, possibly around $60,000 based on L’s evidence, to assist him if he were returned to the United Kingdom. The Applicant’s sister L, who has very little money herself and does not own her own home, is not able to provide the Applicant with financial assistance but may be able to assist to fill out forms to access medical services, and agreed she could possibly visit the Applicant, but not for a long period due to her own financial circumstances.
I find that there are likely to be substantial and insurmountable impediments, both in the short and long term, that the Applicant would face establishing himself in the United Kingdom, maintaining basic living standards and indeed subsisting. The impediments are so insurmountable as to most likely be life-threatening to the Applicant. It is therefore evident that this other consideration should weigh in favour of revocation of the Cancellation Decision.
However, the assessment of the weight to be given to this other consideration is complicated by the evidence that the Applicant has been medically certified as not currently being fit to travel, but that he may be fit to travel in the future, pending further cardiology assessments and medical advice. I find that there is a possibility that he will be returned at some point in the future and consequently, that significant weight should be given to this other consideration.
I find that this consideration weighs very strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. I therefore find this other consideration is not applicable.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(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.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As I mentioned above, the Applicant arrived in Australia as a child when he was 12 years of age. He has therefore resided in Australia for approximately 52 years, including all his teenage and all his adult years.
The Applicant did not begin offending soon after arriving in Australia. He committed an offence of “false report” when he was 16 years of age, and he did not offend as an adult until 1995 with the Copyright Offences when he was approximately 38 years of age.
Turning to positive contributions, the Applicant has a very short criminal history. Before the “possessing child exploitation material” conviction on 27 May 2021, the Applicant was convicted of eight counts of copyright offences on 25 May 1995. He also has a conviction for one count of “unlicensed vehicle” on 21 January 2010. He has a very minimal work history.
The Applicant’s sister, L stated that he has never really had a proper job due to his having an intellectual impairment. However, the Applicant volunteered at Lifeline for five or six years, where he would drive the van to collect donations and help in the shop. He had to be available 24 hours per day, and he received awards from Lifeline for his service. The Applicant stopped working for Lifeline because he used to be able to park the van at his home, but when policy changed and he was unable to do so, he had difficulty catching public transport and then walking to the Lifeline carpark where the van was parked. After volunteering at Lifeline, the Applicant stayed at home to help care for his mother and to help her with housework and gardening (G12/87-88; G15/102, para [11]; A1/19, para [20]). As I mentioned above, the Applicant has never been properly diagnosed with an intellectual impairment, but I am satisfied on the evidence that he is likely to have one. Given his impairment, I do regard his volunteering over five or six years as a positive contribution.
The Applicant has very strong family ties to Australia. All his immediate family members reside here and are Australian citizens. He has no family in the United Kingdom. He has strong support from his three siblings who each provided statutory declarations and were present at the hearing. The family appear to be a close and loving family and they are anxious for the Applicant to stay in Australia. In her witness statement dated 17 October 2022, L stated that (A1/27):
80.Our family will be devastated if Iain doesn’t come home, I will never forgive myself and I will live with regret that I didn’t help him more.
81. Please let Iain come back home to his family.
His sister, F also stated that it would cause “heartbreak” to the Applicant’s siblings if he were deported. She expressed worry that the Applicant’s life would be shortened if he were deported (G14/101, para [12]).
I find that if the Applicant is removed to the United Kingdom, his two sisters and his brother in Australia, L, F and S, will suffer emotional detriment.
On balance, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature, and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
Indefinite detention
The Applicant has been detained in immigration detention since his release from prison in May 2022.
As I mentioned above, the Applicant has recently been assessed as currently being unfit to travel, but there remains a possibility that he may be returned at some point in the future. He is currently undergoing cardiology treatment and further assessment to determine his fitness to travel in the future. He faces detention for an uncertain, and perhaps for a prolonged, duration pending the outcome of future suitability to travel assessments. The Applicant’s health vulnerabilities are also likely to worsen his experience of prolonged or indefinite detention.
The Applicant’s matter has been referred to the Department for assessment against the Ministerial Intervention Guidelines. The Department is currently determining whether a referral should be made to the Minister to consider the exercise of the Minister’s non-compellable powers under the Migration Act to grant the Applicant another visa under s 195A or to make a residence determination under s 197AB. However, as at the date of the hearing no referral to the Minister had been made. It is likely that the Department and the Minister will await the outcome of these proceedings before proceeding further. Thus, if I affirm the Reviewable Decision, the Applicant may face detention for an uncertain period while the referral to the Minister is considered, and if that referral is made, whilst the Minister considers whether to exercise these non-compellable powers in the Applicant’s case. The outcome of the Departmental referral and/or Ministerial consideration is also uncertain. If the Applicant is successful, he may be able to reside in the community, but if he is unsuccessful, he faces the prospect of indefinite or prolonged detention.
In summary, the prospect of indefinite detention (that is, detention for a prolonged and/or uncertain duration with no chronologically fixed end point) is a likely consequence of a decision to affirm the Reviewable Decision. I therefore find that this consideration weighs strongly in favour of revocation of the Cancellation Decision.
the weighing exercise
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. The protection of the Australian community and the expectations of the Australian community primary considerations weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)The extent of impediments if removed consideration weighed very strongly in favour of the revocation of the Cancellation Decision.
(b)The Applicant’s links to the Australian community weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The prospect of indefinite detention weighed strongly in favour of the revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Thus, despite two of the primary considerations (the protection of the Australian community, and the expectations of the Australian community) weighing strongly against the revocation of the Cancellation Decision, I find that they are outweighed by the other considerations that weigh in the Applicant’s favour. These are the extent of impediments if removed consideration, which weighed very strongly, as well as indefinite detention and links to the Australian community which both weighed strongly in favour of the revocation of the Cancellation Decision. These are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64]).
In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
Decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 August 2022, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

................[Sgd].....................................................
Associate
Dated: 9 November 2022

Date of hearing: 26 October 2022

Representative for the Applicant: Ms KJ Everett, WL & KJ Everett Barristers and Solicitors

Representative for the Respondent:

Mr A Burgess, Sparke Helmore Lawyers

Date of hearing:	26 October 2022
Representative for the Applicant:	Ms KJ Everett, WL & KJ Everett Barristers and Solicitors
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers