FBPS and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 682

FBPS and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 682 (17 February 2025)
Applicant:FBPS
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10043

Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date of Decision: 17 February 2025
Date of Reasons: 16 March 2025

Decision:The Tribunal affirms the decision made by the delegate of the Respondent dated 22 November 2024 not to revoke the cancellation of the Applicant’s visa.

................[Sgnd]...............
General Member Cosgrove
Catchwords
MIGRATION – Ex citizen visa cancellation – failure to pass good character test – whether there is another reason to set aside the visa cancellation – convicted of two counts of Sexual intercourse with a person under age of 10 years (DV) – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION

FBPS seeks review of the Minister’s (the Minister or the Respondent) delegate’s 24 November 2024 decision to cancel his Ex-citizen visa (the Visa).[1]
[1] Exhibit R1: G3, 16.
The hearing was held in Brisbane on 11 and 12 February 2025. Mr McCarthy of Taylor Rose Lawyers represented FBPS. Mr Hopkins of Mills Oakley Lawyers represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was required to make a decision by 17 February 2025. On 17 February 2025, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Migration Act 1958 (Cth), s 500(6L).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
The Tribunal directed that the names of FBPS and their family are not to be published to avoid revealing their identities under s 70 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
THE FACTS OF THE MATTER
FBPS is a seventy-seven-year-old[4] citizen of the United Kingdom who has resided in Australia since 1981.[5]
[4] Exhibit R1: G5, 25.
[5] Exhibit R1: G27, 1231.
On 12 December 2018 His Honour Judge Gartelmann SC of the New South Wales District Court convicted FBPS of two counts of Sexual intercourse with a person under age of 10 years (DV) and sentenced him to aggregate term of ten years’ imprisonment with a non-parole period of seven years and six months (the Index Offences).[6]
[6] Exhibit R1: G7, 41.
On 17 February 2021 the Respondent cancelled FBPS’s Visa. FBPS made representations. A delegate the Respondent reviewed the decision, deciding to decline to exercise their discretion to set aside the cancellation on 24 November (the reviewable decision) and notified FBPS on 25 November 2024.[7]
[7] Exhibit R1: G3, 16.
On 3 December 2024 FBPS lodged an application with the Tribunal for review of the reviewable decision.[8]
[8] Exhibit R1: G2, 4.
THE LEGAL FRAMEWORK
Section 13 of the ART Act and s 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[9] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[10] or
(ii)there is another reason why the original decision should be revoked.[11]
[9] Administrative Review Tribunal Act 2024 (Cth), s 501CA(4)(a).
[10] Administrative Review Tribunal Act 2024 (Cth), s 501CA(4)(b)(i).
[11] Ibid, s 501CA(4)(b)(ii).
The Tribunal is satisfied that FBPS made the representations required by s 501CA(4).[12]
[12] Exhibit R1: G1 & G2.
THE TRIBUNAL’S TASK
FBPS’s Visa was cancelled on the basis that he had failed the character test once the delegate had considered the test in the context of his criminal record, defined in s 501 and as required under s 501CA(4)(b)(i). The Tribunal is satisfied, based on its own assessment of his criminal record, that he does not pass the character test articulated in s 501(6).[13]
[13] Exhibit R1: G6.
Section 501CA(4) specifies the Tribunal’s task.[14] When assessing and considering the factors weighing for and against whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[15]
[14] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[15] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[16]
[16] Direction; [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other Considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the Primary and Other Considerations into account. Primary Consideration 1 is generally to be given greater weight than other Primary Considerations.
Paragraph 8 of the Direction specifies the following Primary Considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) the expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
a)the legal consequences of the decision;
b)the extent of impediments if removed;
c)impact on Australian business interests
The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting.[17] The weighing process is substantively left to the individual decision‑maker exercising the relevant power under s 501 of the Act.[18]
[17] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]−[28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
THE EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The Tribunal also heard testimony from FBPS’s wife, daughter, Dr Palk and Professor Khrishnan.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1, the Tribunal is directed to bear in mind that the Australian Government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence.
The Tribunal has considered the nature and seriousness of FBPS’s conduct to date and assessed the relevant evidence and contentions.
Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to consider two limbs of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.
Paragraph 8.1.1: The Nature and Seriousness of FBPS’s Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, when relevant, in considering the nature and seriousness of FBPS’s criminal offending or other conduct to date.
The Index Offences are described in the written evidence.[19]
[19] Exhibit R1: G6 & G7.
Summarising Mr Hopkins’ contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[20]
(a)FBPS was convicted of serious sexual offenses against his granddaughter, which occurred over a period of approximately two and a half years, beginning when the victim was four and a half and continuing until she was seven. The offences took place while FBPS was caring for the victim during the day when her mother was at work, with no one else present in the house FBPS shared with his wife.
(b)The sentencing judge found multiple aggravating factors in the case, including FBPS’s position as the victim’s grandfather, the victim’s vulnerability due to her age, and evidence of grooming behaviours. The sentencing judge noted that while the first Index Offence appeared somewhat opportunistic, the second Index Offence demonstrated premeditation. The sentencing judge concluded that these offences could not be viewed as an aberration of otherwise good character, and that FBPS had no underlying conditions contributing to his offending.
(c)Although FBPS entered a late guilty plea and apologised to the victim, the sentencing judge determined that he showed very limited insight into the extent of harm his actions had caused. Considering that FBPS had no previous criminal history, the sentencing judge imposed a significant term of imprisonment which reflects the Index Offences’ objective seriousness.
(d)FBPS has subsequently attempted to attribute his behaviour to being in the “pre-diagnostic phase” of Parkinson’s disease, for which he has since been diagnosed. This claim is supported by a report from Dr. Palk, a forensic psychologist, who suggested FBPS’s poor coping skills and judgment at the time might be related to this condition. However, Dr. Palk also noted that it was not possible to know FBPS’s cognitive state at the time of the offending and later stated that a geriatrician or neurologist would be better qualified to assess this connection.
(e)The Respondent contends that the evidence does not definitively establish that FBPS was in the pre-diagnostic phase of Parkinson’s disease during the offending period, nor does it demonstrate how such a condition might have impaired his judgment or influenced his behaviour. Furthermore, the Respondent argues that even if FBPS’s judgment had been impaired, this would not reasonably reduce the Index Offences’ objective seriousness.
(f)Given the nature and seriousness of FBPS’s conduct, particularly considering it was sexual offending against a vulnerable child by a person in a position of trust, the Respondent contends that FBPS’s conduct must be viewed as very serious and weighs heavily against setting aside the reviewable decision.
[20] Exhibit R2: [22] – [34].
Summarising Mr McCarthy’s contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[21]
[21] Exhibit A1: [21] – [42].
(a)When considering the relevant factors contributing to FBPS’s past conduct, the delegate’s decision referred to Dr Palk’s 26 January 2024 report, noting Dr Palk’s observation that the applicant’s offending may have occurred in the context of the pre-diagnostic category of Parkinson’s disease. Dr Palk referenced research suggesting brain changes can start about six years before PD symptoms appear. The delegate noted that FBPS’s offending occurred some 14 years prior to his Parkinson’s disease being diagnosed.[22]
[22] Exhibit R1: G5, 28, [29] – [31].
(a)While the delegate acknowledged uncertainty regarding how long FBPS was suffering from the effects of Parkinson’s disease before his diagnosis, they failed to consider the entirety of Dr Palk’s report on this topic and did not apply appropriate weight to these circumstances. Dr Palk also stated that PD “is a complex disease that has various stages and can commence many years before diagnosis (20 to 50 years latency period)” and that patients within this latency period may have the equivalent of mild cognitive impairment. The delegate failed to adequately consider the likelihood of FBPS being cognitively impaired during the offending period.
(b)While this in no way excuses the behaviour or disputes that the offending occurred partly for sexual gratification, it is important for the decision-maker to properly consider all factors which may have contributed to the applicant’s past offending and poor judgment.
(c)In paragraph 34 of the delegate’s decision, the delegate concluded that the evidence does not establish that FBPS’s “level of remorse or insight is particularly profound”, largely due to the sentencing judge's comments about FBPS’s limited insight into the harm caused to the victim and his difficulties discussing his motivations. The delegate stated that “the applicant's failure in this context to recognise the impact of his offending on the victim is illuminative”.
(d)The delegate continued in paragraph 38 to acknowledge that these factors, “without identifying the driver of his offending in order to address it, may increase the likelihood of the applicant reoffending”.
(e)Regarding FBPS’s struggles to discuss his motivation, the delegate failed to properly consider the effects of both his age and the effect of Parkinson’s disease on his ability to do so. FBPS articulated that he had extreme memory difficulties, but the delegate did not consider this aspect when discussing FBPS’s ability to explain why he offended.
(f)Although the delegate’s decision specifically refers to the psychologist’s report before the sentencing judge described the applicant struggling to discuss his motivation for committing the offense, that sentence in the report is immediately followed by: “It was noted at the time of both interviews [FBPS] presented with poor memory, possible because of the effects of ageing and Parkinson Disease”.
(g)Dr Palk also commented elsewhere in his report that FBPS “has a poor recollection of the offending because of ageing and Parkinson disease”.
(h)The delegate failed to refer to these comments by Dr Palk and failed to consider the effects of FBPS’s age and Parkinson’s disease on his ability to articulate his motivations. It is submitted that his inability to properly communicate his motivations is most significantly due to his memory issues, rather than any underlying lack of understanding or remorse, especially given that FBPS’s supporting materials otherwise demonstrate extreme remorse.
(i)Similarly, the delegate failed to consider the impact of FBPS’s age and Parkinson’s disease on his insight into the harm caused to the victim at the time of sentencing in or around December 2018. At that time, FBPS had not yet been diagnosed with Parkinson’s disease, so the sentencing judge could not have considered such matters when noting the applicant’s apparent limited insight. However, the delegate was aware that FBPS was diagnosed with Parkinson’s disease in or around February 2022 and that he likely was experiencing Parkinson’s disease effects years before diagnosis. As such, it is submitted that FBPS’s apparent limited insight was likely due to memory issues brought on by pre-diagnosis Parkinson’s disease.
(j)FBPS’s materials otherwise sufficiently demonstrated genuine and appropriate remorse. Specifically, Dr Palk noted FBPS’s extreme embarrassment and remorse for the offenses and that he has apologised to his family. Dr Palk also commented on FBPS being sad when thinking of the offending and displaying insight into the impact on his victim and his family. Given that Dr Palk’s comments and the applicant’s other materials demonstrated this level of remorse and insight, and such materials were more recent with understanding of FBPS’s Parkinson’s disease, the Respondent failed to give appropriate weight to such evidence.
(k)While the delegate acknowledged FBPS’s remorse and insight in paragraph 38, they failed to appropriately consider all relevant circumstances, particularly FBPS’s Parkinson’s disease and its effects on his capacity to express understanding and insight. Due to this, it is submitted the delegate unreasonably concluded that this sub-consideration increases the likelihood of reoffending.
(l)The delegate appropriately concluded that FBPS has made progress in his rehabilitation, noting that he was in the community for approximately ten years from when he ceased offending until imprisonment. The delegate also noted FBPS’s health issues and “that it is unlikely he will be in a situation where he will be able to reoffend”."
(m)While the delegate reached the correct conclusion, they erred by not properly considering the extent to which FBPS will be unable to reoffend due to his health and other circumstances.
(n)The delegate simply acknowledged submissions that his risk of recidivism was low due to his family support, his age and medical circumstances, and that there is no further risk to victims as the family members most affected have severed ties with him and he intends to adhere to their wishes.
(o)The delegate did not engage in meaningful consideration of these factors, raising concerns about whether they were adequately considered in reaching conclusions.
(p)The delegate did not consider in significant depth that FBPS would be in constant care upon release from prison and would therefore not be in any situation facilitating reoffending risk. In particular, the delegate did not consider the type of care required (essentially constant surveillance and being in company of an adult, namely his wife), the people who indicated they would spend significant time with the applicant (his daughter and primarily his wife as full-time carer), and FBPS’s inability to independently position himself in the community without a carer or adult present (notably his inability to drive).
(q)Furthermore, the delegate completely failed to consider that FBPS no longer has minor children in his life (with his grandchildren all now being adults) and has no risk of interacting with children alone within the community.
(r)While the delegate correctly viewed that it is unlikely FBPS will be positioned to reoffend, they failed to properly consider this factor and therefore did not apply it with the appropriate level of weight.
(s)It remains undisputed that FBPS’s conduct is very serious and his offenses, if repeated, would potentially cause physical and/or psychological injury to victims.
(t)The delegate correctly formed the view that FBPS’s risk of reoffending is low; however, they failed to appropriately conclude the actual risk level (noting it is so unequivocally low as to be negligible) and failed to apply appropriate weight to this consideration due to previously raised circumstances and contentions (particularly regarding conclusions about FBPS’s remorse). As such, the delegate erred in giving greater weight to the serious nature of the offending than to FBPS’s extremely and unequivocally low risk of recidivism.
(u)The delegate concluded by giving Primary Consideration 1 weight against revocation. It is submitted that, given FBPS is extremely unlikely to reoffend, he is not an unacceptable risk to the Australian community, and this Primary Consideration should therefore weigh in favour of revocation or, at the very least, be given neutral weight.
The Tribunal’s consideration: The nature and seriousness of FBPS’s conduct

When assessing the nature and seriousness of FBPS’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·Whether FBPS’s criminal offending and conduct to date belongs within the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community;[23]
·the sentences imposed for his criminal offending;[24]
·the impact of his offending or other conduct on any of its victims and their family, where information in this regard is available and where FBPS has been afforded procedural fairness;[25]
·the frequency of his offending and the trend of increasing seriousness;[26] and
·the cumulative effect of his repeated offending.[27]
[23] Direction; [8.1.1(1)(a) and (b)].
[24] Direction; [8.1.1(1)(c)].
[25] Direction; [8.1.1(1)(d)].
[26] Direction; [8.1.1(1)(e)].
[27] Direction; [8.1.1(1)(f)].
The Tribunal, after assessing the evidence and the parties’ contentions, considers that FBPS’s Index Offences can be considered to be sexual crimes under Paragraph 8.1.1(1)(a)(i).
The Index Offences were crimes of a sexual nature against a child, enlivening Paragraph 8.1.1(1)(a)(ii).
The Index Offences’ victim was a member of FBPS’s family. Applying the Direction’s definition of ‘family violence’, the Tribunal considers that Paragraph 8.1.1(1)(a)(iii) is enlivened
Summing the above, this analysis of the Index Offences against the relevant sections of Paragraph 8.1.1(1)(a) indicates that FBPS’s Index Offences should be viewed as very serious.
Considering Paragraph 8.1.1(1)(b)(ii) and the victim’s characteristics, the Tribunal considers that the Index Offences were crimes committed against a vulnerable member of the community. This suggests that the Index Offences should be viewed as serious.
Considering the above in terms of Paragraph 8.1.1(1)(c), the Tribunal notes that it should exclude Paragraph 8.1.1(1)(a)(ii) and Paragraph 8.1.1(1)(a)(iii). Paragraph 8.1.1(1)(a)(i) remains relevant. The sentencing judge assessed the objective seriousness of the first Index Offence as ‘just below mid-range’ and the second Index Offence as ‘mid-range’, and sentenced FBPS accordingly to an aggregate term of imprisonment of ten years with a non-parole period of seven years and six months, having observed that the maximum penalty for each offence was twenty-five years with a standard non-parole period of fifteen years.[28]
[28] Exhibit R1: G7, 46, 51, 41.
The Tribunal considers that this sentence adds weight to support a finding that the Index Offences should be objectively categorised under the Direction as very serious rather than serious. This is supported by FBPS’s acknowledgement that his offending was very serious.[29]
[29] Exhibit R1: G17, 1193.
The sentencing decision assists in considering the impact of FBPS’s offending under Paragraph 8.1.1(1)(d). The criminal proceedings, occurring a considerable period after the Index Offences, afforded FBPS procedural fairness and the sentencing judge references the victim impact statement:
It may readily be presumed that offences of these kinds significantly affect victims. The victim impact statement read in these proceedings confirmed these particular offences had and continue to have such an effect. The offender violated the victim sexually, but also abused the sense of trust she was entitled to have with respect to members of her own family. That the offences caused harm to the victim in these circumstances is unsurprising. The sentencing of the offender will not undo the harm that the offences caused and it can only be hoped that it might provide the opportunity for closure. Nevertheless the harm caused to the victim must be recognised in sentencing the offender.[30]
[30] Exhibit R1: G7, 46.
The Tribunal draws upon this to find that the Index Offences’ impact on the victim was substantial, long-lasting and negative, especially psychologically.
From a consideration of the evidence in terms of Paragraph 8.1.1(1)(e), the Tribunal finds from the sentencing decision that FBPS’s offending likely had a sustained frequency from when his victim was four and half to when she was seven. There is no discernible trend of increasing seriousness as the Index Offences are of an equal level of seriousness.
Addressing Paragraph 8.1.1(1)(f) and again drawing on the sentencing decision, the Tribunal infers that the cumulative effect of the repeated offending was also substantial and negative.
Paragraphs 8.1.1(1)(g) and (h) are not enlivened on the evidence before the Tribunal.
The Tribunal’s finding: The nature and seriousness of FBPS’s conduct.
The Tribunal has sought above, after evaluating the evidence and assessing the parties’ contentions, to apply and consider each of the relevant subparagraphs appearing in Paragraph 8.1.1(1) of the Direction.
The Tribunal notes both parties’ contentions address the fact of FBPS, subsequent to his sentencing, seeks to attribute his offending conduct to his being in the pre-diagnostic phase of Parkinson’s Disease. The Tribunal makes the following observations with respect to these contentions as they relate to the Tribunal’s consideration of the matter under Paragraph 8.1.1.
First, the Tribunal understands the Full Federal Court’s decision in HZCP v Minister for Immigration and Border Protection (HZCP)[31]to establish that the existence of FBPS’s offending conduct, for which he pled guilty, was convicted and then sentenced is what enlivens s 501(3A) of the Act which in a precondition to the exercise of power under s 501CA(4)(b) of the Act.[32] The Tribunal understands HZCP to mean that it cannot consider arguments and evidence, such as those contended before it in terms of the possible effects of FBPS’s pre-diagnosis Parkinson’s disease, in terms of Paragraph 8.1.1 and going against the conviction and sentencing that affect the operation of s 501(3A) and s 501CA(4)(b).[33]
[31] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
[32] Ibid, [71], [113].
[33] MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11, [72].
Second, in evaluating the evidence and testimony against Paragraph 8.1.2 below, the Tribunal considers that it can assess these contentions addressing FBPS being in the pre-diagnostic phase of Parkinson’s Disease, and the evidence cited in support of them.
Third, the Tribunal notes the lack of evidence regarding whether FBPS was in the pre-diagnostic phase of Parkinson’s Disease at the time of the offending, the express evidence that he had normal cognitive functioning in 2022 and the sentencing judge’s comments regarding the premeditation and grooming behaviour that FBPS displayed in relation to the second Index Offence which seem at odds with the claims made regarding the role of Parkinson’s disease in its pre-diagnostic stage here.
With reference to the relevant and applicable aspects of Paragraph 8.1.1 referred to above and after a holistic evaluation of FBPS’s offending, the Tribunal finds that it should be characterised as objectively very serious.
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Summarising the relevant aspects of Paragraph 8.1.2 of the Direction:
(a)In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·Evidence of how likely they are to re-offend.
·Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)The objective is to carefully weigh the seriousness of the possible harm if the non-citizen re-offends, the likelihood of their re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were FBPS to engage in further criminal or other serious conduct, the Tribunal has considered the evidence, testimony and the parties’ submissions in relation to Paragraph 8.1.2. The Tribunal has considered the sentencing judge’s decision, FBPS’s daughter’s testimony and the reports and testimony of Dr Palk and Professor Khrishnan.
Summarising Mr Hopkins’ contentions on this point as the Tribunal understands them:[34]
(a)FBPS's case is being evaluated under Paragraph 8.1.2(1) of the Direction, which establishes that the Australian community's tolerance for risk of future harm diminishes as the potential harm's seriousness increases. In certain cases, the conduct and resulting harm are so severe that any risk of recurrence may be deemed unacceptable.
(b)The Tribunal must consider two key factors regarding community risk under paragraph 8.1.2(2): the nature of potential harm should FBPS re-offend, and the likelihood of such re-offending.
(c)Given the nature of FBPS’s convicted offenses, any similar future conduct would present a clear risk of significant psychological and physical harm to potential victims. FBPS has acknowledged that similar offending could cause physical and/or psychological harm.
(d)Regarding the likelihood of re-offending, FBPS contends that he presents a negligible risk and attributes his limited insight into his offending to his Parkinson's Disease. FBPS has previously expressed remorse, characterising his offending as out of character and potentially explained by being in the pre-diagnostic phase of Parkinson's Disease. The sentencing judge assessed FBPS’s risk of re-offending as relatively low, considering his age, evidence from Dr Smith, and the specific circumstances of the offences that are unlikely to recur.
(e)However, several concerning factors exist. FBPS entered a late guilty plea, and the sentencing judge determined that he displayed very limited insight into the harm caused by his actions, finding no other basis to conclude that his rehabilitation prospects are favourable. The Respondent submits that if Parkinson's Disease contributed to both his offending and his limited insight, as claimed, these factors would logically increase rather than decrease his reoffending risk.
(f)Dr. Palk’s 23 January 2025 report indicates that FBPS has no recollection of the reason for his incarceration, believing it was due to his being denied permission to remain in Australia. The report also notes a deterioration in FBPS’s physical health. The Respondent concludes that while the risk may be low, FBPS’s limited remorse, lack of recollection of his offending, and Parkinson's Disease collectively indicate that he remains a risk of further offending that could cause significant harm.
[34] Exhibit R1: [31]– [34].
Mr McCarthy’s contentions on this point as well as on the likelihood of FBPS re-offending are incorporated in the Tribunal’s summary of his contentions on the Primary Consideration above.
The evidence of FBPS’s Index Offences supports the Tribunal inferring that there may be severe harm to members of the Australian community if FBPS re-offended in a similar fashion to his Index Offences or repeated his related conduct in the future.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were FBPS to engage in further criminal or other serious conduct
If FBPS is permitted to remain in Australia, the Tribunal finds that any future repetitions of criminal or serious conduct of the type that FBPS has previously engaged in could result in severe harm to members of the Australian community.
The Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
Assessing the likelihood or risk of FBPS engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the evidence and testimony of his wife, his daughter, Dr Palk and Professor Khrishnan as well as the medical evidence contained in Exhibit R1, as directed by Paragraph 8.1.2(2) of the Direction.
The Tribunal draws the following observations on FBPS’s likelihood of engaging in in further criminal or serious conduct from the evidence and testimony before it:
(a)Based on the testimony of his wife and daughter and the extensive medical evidence, FBPS cannot stand, cannot walk and his cognitive state is deteriorating. This testimony is corroborated to an extent by Dr Palk’s January 2024 report and Professor Khrishnan’s February 2025 report.[35]
(b)FBPS spent considerable time in the community after the last of his Index Offences and before he was arrested without any record of further offending.
(c)FBPS likely has Parkinson’s Disease, based on Professor Khrishnan’s report and testimony regarding FBPS’s prescribed medications.
(d)Dr Palk opined in his report that FBPS suffers from cognitive impairment, at least relative to his state in 2022.
(e)In his testimony, Dr Palk stated that the risk management or protective factors that are present are the absence of prior convictions, as well FBPS’s age and impairments. Dr Palk stated that there was virtually no risk unless one placed a child in FBPS’s lap, which was not reassuring in terms of a risk existing.
(f)In terms of risk factors – matters that facilitate offending – Dr Palk agreed that FBPS has never demonstrated deep understanding of his offending and that he would be unable to undertake rehabilitation due to his age and impairments. He suggested that FBPS experienced a degree of disassociation relative to the Index Offences. He added that the best risk management actions in FBPS’s case involve protective factors, target hardening and increasing age, along with ongoing supervision.
(g)When taken to the sentencing judge’s comments in cross-examination, Dr Palk agreed with three propositions put to him by the Tribunal that were drawn from the comments: that FBPS had engaged in grooming behaviour with regard to his victim, that his behaviour was akin to that of a paedophile and that if the Index Offences were his first offending of this nature, then he was extraordinarily well-organised.[36]
(h)FBPS’s wife stated in her testimony that she would be keeping an eye on FBPS if he was returned to the community. The Tribunal inferred that this was in response to his poor health and recent history of falls, but it is open to be interpreted as well as an expression of concern about a risk of re-offending.
(i)In cross-examination, FBPS’s daughter was asked why she referred to FBPS being accused rather than convicted. She stated that there was no evidence as to the Index Offences and that FBPS had maintained this argument throughout the criminal proceedings. When asked how she could say that FBPS is remorseful, she stated that her understanding is that FBPS is full of remorse for everything that has happened to his family but that she does not believe that he committed the offences. When asked why she thought he pled guilty, she answered that it was on the lawyer’s advice to get a lower sentence, not from FBPS’s thinking and that he pled guilty on the last hearing day. When asked why he had not pled guilty earlier, she stated it was because what he was accused of had not happened. She also maintained that apart from the two Index Offences, no other conduct occurred between FBPS and the victim. She acknowledged the sentencing judge’s comments regarding grooming behaviours and then stated that “We all truly believe that this did not happen.” and that her father, while fully aware of the accusations, has never discussed the offending. But rather has told her “hundreds of times” that he did not commit the offences.
[35] Exhibit A12.
[36] Exhibit R1: G7.
Summarising Mr Hopkins’ arguments on this element as the Tribunal understands them:[37]
(a)The Tribunal must consider two key factors regarding community risk under paragraph 8.1.2(2): the nature of potential harm should FBPS re-offend, and the likelihood of such re-offending. Given the severe nature of FBPS’s Index Offences, any similar future conduct would present a clear risk of significant psychological and physical harm to potential victims. FBPS has acknowledged that similar offending could cause physical and/or psychological harm.
(b)Regarding the likelihood of re-offending, FBPS contends that he presents a negligible risk and attributes his limited insight into his offending to his Parkinson's disease. FBPS has previously expressed remorse, characterising his offending as out of character and potentially explained by being in the pre-diagnostic phase of Parkinson's disease. The sentencing judge assessed FBPS’s risk of reoffending as relatively low, considering his age, the medical evidence before the sentencing judge, and because the specific circumstances of the offences was unlikely to recur.
(c)However, several concerning factors exist. FBPS entered a late guilty plea, and the sentencing judge determined that he displayed very limited insight into the harm caused by his actions, finding no other basis to conclude that his rehabilitation prospects were or are favourable. The Respondent submits that if Parkinson's disease contributed to both FBPS’s offending and his limited insight, as claimed, these factors would logically increase, rather than decrease, his re-offending risk over time.
(d)Dr. Palk's January 2025 report indicates that FBPS has no recollection of the reason for his incarceration, believing it was due to his being denied permission to remain in Australia. The report also notes a deterioration in FBPS’s physical health. The Respondent concludes that while the risk may be low, FBPS’s limited remorse, his lack of recollection of his offending, and Parkinson's disease collectively indicate that he remains a risk of further offending that could cause significant harm.
[37] Exhibit R1: [35] – [39].
To start addressing this element of Primary Consideration1, the Tribunal notes that the legislative threshold is whether there is ‘a’ risk.[38]
[38] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (‘Sabharwal’), [2]; GJJF and Minister for Home Affairs (‘Migration’) [2019] AATA 930, [48]–[52]; Roberts and Minister for Home Affairs (‘Migration’) [2018] AATA 3970, [27].
The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn.[39]
[39] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Migration’) [2020] AATA 888; QKVH and Minister for Home Affairs [2020] AATA 4431 (‘QKVH 2020’); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (‘Migration’) [2019] AATA 930; Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Tribunal’s task is to determine the realistic level of risk posed by FBPS as at the time of its decision,[40] with the question being “how serious the risk [is], or whether the risk should be “tolerated”’[41], to the extent that it could be considered an unacceptable risk.[42]
[40] Direction; [8.1.2(2)(b)(ii)].
[41] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’), [37].
[42] Direction; [8.1.2(1)].

When assessing whether FBPS poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal must consider all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’. [43] In undertaking this task, the Tribunal acknowledges that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. Senior Member Taylor observed a qualification to this in Dharma and Minister for Home Affairs,[44] in that the degree of risk that may be acceptable to the community is “inversely related” to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.
[43] GJJF and Minister for Home Affairs (‘Migration’) [2019] AATA 930 (‘GJJF’); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]– [52]; Roberts, (n 53) [27].
[44] Dharma and Minister for Home Affairs [2018] AATA 2757, [26].
Paragraph 8.1.2(1) uses the phrase “unacceptable risk”; that is, a risk that the community should not be required to tolerate or accept, regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection,[45] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, when determining what an “unacceptable risk” is, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
[45]Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, [89]–[104].
The decision of Minister for Immigration and Ethnic Affairs v Baker[46] provides an evaluative approach for the Tribunal to apply in assessing FBPS’s conduct, finding that Paragraph 8.1.2(b)’s reference to criminal or other serious conduct is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’ (Emphasis added.)
[46] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194.
In Guo, Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court clarified the extent to which past events are a guide to potential future events:[47]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’ (Emphasis added.)
[47] MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS V GUO WEI RONG (1997) 191 CLR 559, 574-575; QKVH V MINISTER FOR HOME AFFAIRS (‘QKVH 2020’) [2020] AATA 4431, [5].
Her Honour Justice Mortimer (as she then was) explored the concept of risk in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], where Her Honour noted:[48]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[48] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Applying Sabharwal’s reasoning to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of FBPS engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo, guided by Murphy and Baker’s consideration of what FBPS’s past criminal conduct and other serious conduct reveals about his character. Acknowledging Tanielu, the Tribunal should evaluate both the potential consequences of any further offending by FBPS and the likelihood that such consequences will manifest
As observed in GTPT,[49] the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence’ In assessing whether there is a risk.[50] Additionally, the more time that passes without FBPS re‑offending, irrespective of formal rehabilitation, is evidence that his risk has reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’[51]
[49] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
[50] Ibid, [67] citing the then current Direction.
[51] Ibid, [94].
The Tribunal’s consideration of the risk or likelihood of FBPS engaging in further criminal or serious conduct will involve assessing the factors that:
(j)facilitate the risk; or,
(k)conversely, hinder or retard the risk.
Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
The factors that facilitate the risk of re-offending.
The evidence and testimony in this matter, especially the testimony of FBPS’s daughter, Dr Palk and Professor Khrishnan, lead the Tribunal to infer and find that FBPS’s relative lack of understanding as to his offending, his apparent lack of remorse as to his offending as distinct from his conduct’s impact on his family (see below in terms of the hearsay nature of his daughter’s evidence) and his disassociation emerge as risk factors.
The Tribunal acknowledges the Respondent’s argument that if FBPS’s cognitive impairment and his Parkinson’s disease contributed to his offending, then the risk of re-offending will logically increase as these conditions worsen.
The Tribunal notes Dr Palk’s testimony that the risk of re-offending may arise if a child were to be placed in FBPS’s lap.
Acknowledging the extent to which it is hearsay evidence, the Tribunal is concerned about FBPS’s daughter’s testimony that FBPS, his daughter and the family do not believe that the Index Offences occurred.
The factors that hinder or reduce the risk of re-offending – Rehabilitation, remorse and other factors
FBPS has not undertaken any formal rehabilitation. Dr Palk observed that this was likely because of his age. The 14 February 2024 NSW Communities and Justice report stated that FBPS was ineligible to attend criminogenic programs and has not participated in any behavioural change programs.[52]
[52] Exhibit R1: G9 & G10.
The extent to which FBPS is genuinely remorseful, and whether that remorse is directed at his offending or the stress and pressure on his family is an open question after his daughter’s testimony.
Notwithstanding the Respondent’s logical contention that if FBPS’s Parkinson’s disease contributed to his offending and is getting worse and consequently his risk of offending should increase, the Tribunal considers in general terms that FBPS’s age and poor health predominate as factors that reduce the likelihood of his re-offending.
While his family was suggested as a risk management factor, the Tribunal notes that their presence did not stop FBPS committing the Index Offences. If FBPS is released and his wife maintains the supervision that she testified she would do, then there is an element of risk management.
The Tribunal’s Risk Analysis and Consideration
The Tribunal has considered the evidence above, especially the factors that appear to have contributed to FBPS’s offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
In doing so, it has applied the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The Tribunal considers, in view of the objective nature of FBPS’s offending, that the Australian community tolerance for any similar future offending is likely diminished to be very small.
In making its finding on the likelihood of FBPS re-offending, it has then considered what the combination of his offending and the impact it had on his victim, his displays of remorse and what he has achieved in his life since offending say about his character, as well as assessing whether the consequences of his offending in future are likely to be unacceptable to the Australian community.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that a risk to the Australian community should FBPS commit further offences or engage in other serious conduct exists.
The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers this risk to be small but not minimal.
The consequences if FBPS was to re-offend in the same manner as the Index Offences are substantial and severe, and the Australian community’s tolerance for such re-offending is likely negligible. The Tribunal finds that the combination of risk and consequences here produce an unacceptable risk.
Conclusion: Primary consideration 1: Protection of the Australian community
The Tribunal finds that FBPS’ offending is very serious, that the consequences of any such future offending of the type that FBPS has previously engaged in could result in severe harm to members of the Australian community and that the likelihood of his future re-offending is small. In view of the Index Offences’ very serious nature and impact, the Tribunal considers that any risk that they may be repeated is unacceptable, to reference Paragraph 8.1.2(1).
The Tribunal further finds that in its totality, this consideration weighs dispositively in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The facts of the Index Offences and the relationship of FBPS and the victim enliven this Primary Consideration.
The analysis of Primary Consideration 1 above, especially in terms of the frequency of offending, whether there is a trend of increasing seriousness, the cumulative effect, the extent to which FBPS has achieved rehabilitation or understands the impact of their behaviour and has attempted to address the factors that contributed to his conduct, can be applied here to Paragraph 8.2(3) of the Direction.
Summarising Mr McCarthy’s contention on this Primary Consideration as the Tribunal understands them:[53]
(a)FBPS does not contest that his actions constitute family violence, nor does he contend that this Primary Consideration weighs against revocation.
(b)However, FBPS posits that the delegate erred in their assessment as to the level of weight attributed to this Primary Consideration, noting that the delegate applied significant weight against revocation of the visa.
(c)At paragraph 65 of the delegate's reasons,[54] the delegate noted that FBPS had submitted he is remorseful and accepts responsibility for his offending and its effects. However, for the same reasons as previously articulated, it is submitted that the delegate, when assessing FBPS’s remorse, failed to appropriately consider all relevant circumstances; namely FBPS’s Parkinson’s disease and its effects on his capacity to express his understanding and insight.
(d)Furthermore, at paragraphs 66 and 68 of the delegate’s reasons,[55] the delegate briefly identified some submissions made by FBPS in relation to his low risk of reoffending. However, the delegate failed to appropriately consider the extent to which the applicant was a low risk of recommitting acts of family violence. The degree to which the delegate failed to appropriately consider FBPS’s risk of reoffending has been previously discussed at length.
(e)Paragraph 71 of the delegate’s reasons provides the following: “Bearing this in mind, together with the above information concerning the Applicant's specific conduct, I find that while all family violence must be regarded as very serious, the offending in this case can be said to be towards the top of the range of such conduct. Accordingly, I have attributed this consideration significant weight against revocation of the Applicant's visa.”[56]
(f)It is submitted that the delegate erred in concluding that FBPS’s offending can be said to be towards the top of the range of family violence. The delegate failed to properly take into account the sentencing remarks in this regard, in which the sentencing judge identified that, having regard to all considerations, the seriousness of FBPS’s offending was to be just below mid-range for the first Index Offence, and mid-range for the second Index Offence. As such, it is submitted that the delegate erred by attributing significant weight against revocation to Primary Consideration 2, in circumstances where a small-moderate level of weight ought to be provided.
[53] Exhibit A1: [21] – [42].
[54] Exhibit R1: G5, 32.
[55] Exhibit R1: G5, 32.
[56] Exhibit R1: G5, 32.
Summarising Mr Hopkin’s contention on this Primary Consideration as the Tribunal understands them:
(a)Paragraph 8.2(1) of the Direction establishes that the Australian Government has serious concerns about allowing non-citizens who engage in family violence to enter or remain in Australia. This consideration applies in cases where a non-citizen has been convicted of an offense involving family violence or where independent evidence supports the perpetration of such violence, as outlined in Paragraph 8.2(2).
(b)FBPS’s position regarding whether his offending constitutes family violence for the purpose of this consideration appears ambiguous in his submissions. However, the Respondent argues that the victim, being the applicant's granddaughter, was clearly a member of the applicant's family, and that the nature of the offending falls within the definition of family violence as set out in Paragraph 4 of Direction 110.
(c)This position is supported by previous Tribunal findings, specifically in the case of NTCV and Minister for Immigration, Citizenship and Multicultural Affairs, where sexual offending against a grandchild was determined to constitute family violence.[57]
(d)The severity of FBPS’s conduct is underscored by the fact that the offending occurred on multiple occasions and has resulted in complete cessation of contact between FBPS and both the victim and the victim's mother (FBPS’s younger daughter) since his arrest. Furthermore, the Respondent contends that FBPS has demonstrated a lack of rehabilitation, as evidenced by his inability to recollect the details of his offending, and there is no evidence suggesting that he has meaningfully addressed the factors that contributed to his criminal behaviour.
(e)Based on these considerations, the Respondent maintains that FBPS’s offending constitutes family violence of an objectively very serious nature, and that FBPS has achieved minimal meaningful rehabilitation. Consequently, this consideration should weigh heavily against the applicant in the determination of his case.
[57] NCTV and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 402, [85]–[89].
The Tribunal considers FBPS’s offending to be very serious and to constitute acts of family violence as defined in the Direction.
While acknowledging FBPS’s contentions that the sentencing suggests the Index Offences were viewed by the sentencing judge as just below mid-range to mid-range, the Tribunal considers that FBPS’s contentions as to the impact of Parkinson’s disease are countered by the testimony of both Dr Palk and Professor Khrishnan and in Professor Khrishnan’s report regarding the possible onset of prodromal features of Parkinson’s disease against the fact of FBPS’s normal 2022 cognitive assessment, as considered above against Paragraph 8.1.2.
Given the wording of Primary Consideration 2, the Tribunal also considers that some of FBPS’s contentions are misdirected. The Primary Consideration is prescriptive in terms of what is to be considered when evaluating it.
After assessing the evidence and contentions with respect to this Primary Consideration, the Tribunal considers and finds that this Primary Consideration supports affirming the reviewable decision and has a very strong weight.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen
This consideration favours affirming the reviewable decision and carries very strong weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Primary Consideration 3 directs the Tribunal to consider any impact of its decision in relation to the Visa on FBPS’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The Tribunal must also consider the strength, nature and duration of any other ties that FBPS has to the Australian community, having regard to:[58]
(f)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to time the Applicant has spent contributing positively to the Australian community
(g)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.
[58] Direction; paragraph 8.3(2).
The evidence before the Tribunal in relation to this Primary Consideration involves the evidence and testimony from FBPS’s wife and daughter.
Summarising Mr McCarthy’s contentions on this Primary Consideration as the Tribunal understands them:[59]
(a)FBPS does not contest the delegate's conclusion that this Primary Consideration ought to “weigh very strongly in favour of revocation of the mandatory cancellation in this case.”
(b)However, FBPS does submit that the delegate failed to consider the following when reaching this conclusion:
i.The extent of support that FBPS's immediate family currently provide to him (rather than just the intended support upon release from prison). FBPS’s wife and daughter frequently visit him in prison or hospital, and he has regular telephone calls with them and his grandsons.
ii.While the delegate rightly concluded that FBPS’s immediate family would experience emotional and practical hardship, the Respondent failed to consider the impact family members would specifically experience knowing that FBPS is likely to pass away in the United Kingdom alone and without support. As provided within the supporting materials, FBPS’s health circumstances are such that any removal to the United Kingdom will likely have irreversible and damaging impacts to his wellbeing, such that his life expectancy would drastically shorten. This knowledge will have a significant and noteworthy emotional impact upon his immediate family.
iii.The financial hardship his immediate family will experience were he to be removed. Given that the applicant is unable to work and is not eligible for the United Kingdom pension, the burden of organizing and paying for the applicant's appropriate accommodation and care (both day-to-day care and specific medical care) will likely fall upon his immediate family. This will greatly impact them financially.
(c)In light of the above, it is submitted that this Primary Consideration ought to be attributed even stronger weight in favour of revocation.
[59] Exhibit A1: [49]–[51].

Summarising Mr Hopkin’s contentions on this consideration as the Tribunal understands them:[60]
[60] Exhibit R2: [51]–[55].
(a)The Respondent understands that FBPS’s immediate family in Australia includes:
(iii)His wife, who is seventy-five;
(iv)His brother, who is seventy-nine;
(v)His brother’s wife;
(vi)His daughter, who is fifty-one.
(vii)His son-in-law;
(viii)A sister-in-law; and
(ix)Two grandsons aged twenty-four and twenty-one.[61]
(x)His estranged youngest daughter, who is forty-eight;
(b)The Tribunal does not have evidence before it regarding whether all the immediate family members mentioned fall into the required category of Australian citizens, permanent residents, or those with indefinite right to remain in Australia, as specified in Paragraph 8.3 of the Direction.[62]
(c)Despite this evidentiary gap, the Respondent assumes they meet these criteria and acknowledges that some of FBPS’s Australia-resident family would experience negative impacts if FBPS was removed from Australia. These affected individuals may qualify under Paragraph 8.3(2).
(d)The Respondent clarifies that the term "some" is used because the evidence does not indicate any negative impact on certain family members, specifically FBPS's granddaughter (who was the victim of his offending) or her mother, as they no longer maintain contact with FBPS. The Respondent further notes a general lack of evidence before the Tribunal regarding the specific nature of FBPS’s relationships with each family member claimed to be adversely affected by his potential departure from Australia.
(e)The Respondent concedes that this consideration weighs in FBPS’s favour and should be given moderate weight.
[61] Exhibit R1: G12, 1156 & 1162; G16, 1191; G18, 1202.
[62] There are indications in FBPS’s Personal Circumstances form that some members may be citizens of the United Kingdom.
The Tribunal now considers these contentions and the evidence before it, including his daughter and wife’s testimony of their visits to see him, through the lens of each subparagraph in Paragraph 8.3.
Paragraph 8.3(1)
FBPS’s immediate family are in Australia. The Tribunal considers that some of FBPS’s immediate family identified above are likely to be Australian citizens, permanent residents or have the right to remain in Australia indefinitely. It notes that in FBPS’s Personal Circumstances form he states that his wife, brother, his sisters-in-law and his daughters are English or Scottish.[63] None appear to be dependent on FBPS.
[63] Exhibit R1: G12, 1157, 1162.
Based on the evidence and testimony, a decision to affirm the reviewable decision would probably cause emotional hardship and a negative impact on FBPS’s immediate family with emotional and psychological aspects to this impact.
The Tribunal also accepts FBPS’s contention that if FBPS is removed his family would likely suffer a financial impact as they would likely try and send him money.
Paragraph 8.3(2)(a)
FBPS arrived in Australia at thirty-three in 1981 and has resided here since then. His Index Offences first occurred some twenty-six years later.[64] The Tribunal consequently considers and finds that FBPS did not begin offending soon after arriving in Australia.
[64] Exhibit R1: G7.
The uncontested evidence demonstrates that he has made sustained and significant positive contributions to the Australian community over the long course of his working career, especially as a plumber with his own business until he retired in 2008.[65]
[65] Exhibit R1: G12.
Paragraph 8.3(2)(b)
The family links identified above also make out the strength and duration of FBPS’s links to Australia under this paragraph.
The Tribunal also considers it likely that FBPS likely developed social ties beyond his immediate family during his residence in Australia.
The Tribunal’s Consideration
The Tribunal considers that a decision leading to FBPS’s removal will cause emotional hardship and likely have negative impacts on each member of his immediate family.
Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
In terms of weight, the impact of affirming the reviewable decision on his immediate family and his friends as well as his positive contributions to the Australian community give this finding strong and substantive weight.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this consideration strong and substantive weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
The Tribunal has considered the evidence before it, especially FBPS’s Personal Circumstances form and the testimony of his wife and daughter. It does not consider that this Primary Consideration is enlivened.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration carries neutral weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) is a deeming provision that provides:
‘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.’
In addition to the above, paragraph 8.5(2) of the Direction directs that a 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 in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) also provides that 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 because of conduct, in Australia or elsewhere, of the following kinds:
(f)acts of family violence;
(g)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(h)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;
(i)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(j)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;
(k)worker exploitation.
Paragraph 8.5(3) provides that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(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.’
Clause 8.5(4) of the Direction aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Acknowledging the diversity of reasoning in FYBR, the Court’s plurality held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[66]
[66] FYBRv Minister of Home Affairs (2019) 272 FCR 454 (“FYBR”), 471–472 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation of a visa, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine.’[67]
[67] Ibid, 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]– [303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[68]
[68] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm contained in paragraph 8.5, the Tribunal has also considered the guidance informed by the principles set out in paragraphs 5.2(1) to (8) of the Direction. In summary these are:
(a)The Australian government’s highest priority is the Australian community’s safety.
(b)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(c)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.
(d)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 measurable risk of causing physical harm to the Australian community.
(e)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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(f)In relation to decisions to refuse, cancel and revoke cancellations of visas, 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.
(g)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.
(h)Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.
Subparagraph 5.2(4) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, s 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay,’ as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas.
The Tribunal’s consideration
FBPS’s Visa was an Ex citizen visa until it was cancelled. This Visa is not classed as a limited stay visa.[69] This implies that Subparagraph 5.2(5)’s low tolerance does not apply.
[69] Clause 155.211, Migration Regulations 1994.
Arriving in Australia in 1981, FBPS has resided here for approximately forty-four years. This enlivens Paragraph 5.2(6)’s higher tolerance.
The Tribunal has found FBPS’s offending conduct to be very serious. He committed crimes involving family violence and serious crimes against a child. These two findings outweigh the higher tolerances acknowledged above, noting that Paragraph 8.5(20 states that the Australian community expects the Australian government should cancel the visas of non-citizens through these kinds of conduct.[70]
[70] Direction; [8.5(2)(a) & (c)].
The Tribunal is satisfied that FBPS has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the tolerances assessed above.
Summarising Mr McCarthy’s contentions on this Primary Consideration as the Tribunal understands them:[71]
[71] Exhibit A1: [52] – [66].
(a)In its consideration of this Primary Consideration, the delegate has not taken Paragraph 5.2(6) into account.
(b)The delegate ultimately concluded that, due to the nature of FBPS’s offending and the Australian community’s general expectation regarding such conduct, this Primary Consideration should be attributed significant weight against revocation of the Visa’s cancellation. However, it is submitted that, if Paragraph 5.2(6) is considered, the weight allocated to this Primary Consideration ought to have been much lower.
(c)As discussed previously and as demonstrated by FBPS’s supporting materials, FBPS has very strong and lengthy ties to Australia. The delegate in fact came to this same conclusion by determining that Primary Consideration 3 weighs very strongly in favour of revocation (it is also submitted that the delegate failed to consider all relevant factors and that Primary Consideration 3 ought to have been given even stronger weight).
(d)FBPS arrived in Australia approximately forty-five years ago and is currently seventy-seven. It is evident that he has been a member of the Australian community for the majority of his life.
(e)In light of the above, and Paragraph 5.2(6), it is submitted that this Primary Consideration ought to only be provided moderate weight against revocation rather than significant weight.
(f)In JYVT and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (‘JYVT’)[72] the Tribunal, differently constituted, found that:
[72] JYVT and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] AATA 3617, [63] – [64].
“The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious and I find that the Australian community expects that the Australian government should cancel the humanitarian visa and not grant the Protection visa. However, Australia may afford him a higher level of tolerance because he has lived in the Australian community for the majority of his life. [64] This is a factor that weighs in favour of non-revocation of the cancellation decision and not granting a Protection visa, but only moderately so.”
(g)JYVT was a matter heard by the Tribunal in October 2024 and so Direction 110 was applied in the circumstances.
(h)In JYVT, the applicant's criminal history consisted of one count of armed robbery and one count of carrying a firearm as a prohibited person. While in this instance the applicant's offending was certainly serious (and it was deemed as such), it is admittedly much less serious than FBPS’s offending. However, it is submitted that the disproportionality of the seriousness of offending is counterbalanced by FBPS’s much higher ties to and duration within Australia when compared to the applicant in JYVT.
(i)In JYVT, the applicant entered Australia in 2005 and the matter was heard in 2024, a period of only 19 years. The applicant in JYVT had also lived within the Australian community for the majority of his life (as he was much younger than the applicant here).
(j)In contrast, the applicant here has been a member of the Australian community for approximately the last forty five years, a period much more significant than the applicant in JYVT. Similarly, FBPS has spent the majority of his life in Australia.
(k)It is therefore submitted that the circumstances of FBPS’s ties to Australia and length within the Australian community significantly surpass that of the applicant's in JYVT and the Australian community, as a norm, would therefore be willing to afford a higher level of tolerance than that which was applied to the applicant in JYVT.
(l)It is submitted that this significantly higher tolerance counterbalances the higher level of scrutiny which would be applied to the applicant (when compared to the applicant in JYVT) due to his more serious offending.
(m)Due to these two considerations counterbalancing each other, it is submitted that the same weight which was provided to the applicant in JYVT ought to have been provided to the applicant in the present circumstances; that being only of a moderate level against revocation.
(n)The delegate failed to properly consider Paragraph 5.2(6) as well as precedent (such as JYVT) and incorrectly applied excessive weight against revocation to this Primary Consideration.
Summarising Mr McCarthy’s contentions on this Primary Consideration as the Tribunal understands them:[73]
[73] Exhibit R2: [57]–[65].
(a)The Direction indicates that non-citizens are expected to obey Australian laws while in Australia, and that non-revocation of a visa cancellation may be appropriate simply because the nature of the non-citizen's conduct is of a kind which the Australian community would expect should disqualify that person from holding a visa.
(b)Paragraph 8.5 of the Direction expresses a “deemed community expectation” that all persons who have committed serious criminal offences giving rise to character concerns should not be permitted to enter or remain in Australia, as noted in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
(c)It is not the Tribunal's role to independently determine the community's expectations in a particular case, as established in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [31]-[35] per Moshinsky, Stewart, and Jackman JJ. These community expectations apply regardless of whether there is a risk of the non-citizen causing physical harm to the Australian community.
(d)The Respondent contends that FBPS has failed to meet the Australian community’s expectations to obey its laws. Furthermore, the Respondent argues that the Australian community would expect FBPS should no longer hold his Visa because he raises serious character concerns through his acts of family violence (paragraph 8.5(2)(a) of the Direction), including engaging in sexual abuse of a family member who was under 10 years old. Given the severity of his offending and his substantial term of imprisonment, the Tribunal ought to conclude that the Australian community would expect that FBPS should not hold a visa.
(e)FBPS contends that moderate weight should be afforded against him regarding this consideration, arguing that Australia may afford him a higher level of tolerance because he has lived in the Australian community for the majority of his life, with reference to paragraph 5.2(6) of Direction 110 and JYVT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] AATA 3617 at [63]–[64] per Deputy President Britten-Jones (JYVT).
(f)In JYVT at [58]-[64], the Tribunal found that this consideration weighed moderately against that applicant, noting that his criminal conduct was serious but at the lower end, and that he had both lived in Australia for most of his life and from a very young age.
(g)The Respondent argues that the circumstances of FBPS’s case are not comparable to JYVT. Although FBPS has spent more of his life in Australia than in Scotland, he has not lived in Australia from a very young age. Moreover, his offending is, as he has previously described, extremely serious. While FBPS contends that the principles in paragraph 5.2 of Direction 110 are relevant to the weight attributed to this consideration, the Respondent notes that several of those principles must weigh against FBPS: paragraph 5.2(2), (3), (7) and (8) of the Direction.
(h)Consequently, the Respondent contends that the fact of FBPS having lived in Australia for more of his life than not should not reduce the weight attributed to this consideration against him.
(i)The Respondent contends that this consideration must weigh significantly against revocation of the visa cancellation decision.

The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.
Having regard to the evidence and context of FBPS’s Index Offences, the Tribunal also concludes that, after evaluating the tolerances FBPS’s circumstances invoke and finding that the seriousness of the Index Offences outweighs them, this Primary Consideration weighs substantially in favour affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs substantially in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:
(a)Their status in Australia is unlawful.
(b)They are subject to being detained or removed.
(c)Any other visas they hold or any visa applications they have made are cancelled or refused.
(d)They are prohibited from applying for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[74]
(e)Periods of exclusion from Australia and special return criteria may apply.
[74] Administrative Review Tribunal Act (2024) (Cth), s 501E; Migration Regulations 1994 (Cth), Criterion 5001 of Schedule 5 prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
FBPS has not contended that he engages Australia’s protection obligations, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to him.
It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in prison (until June 2026) or detention until he is removed from Australia.
FBPS’s Visa was not a protection visa, and he is not barred from applying for a protection visa.
The Tribunal’s consideration
The logical consequential operation of the Direction and the Act in regard to this consideration is that where the revocation of an applicant’s visa is affirmed, the applicant is liable to be removed from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act.[75]
[75] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (‘Migration’) [2023] AATA 1327 at [209].
There are no claims of protection or of non-refoulement in this matter.
When the Tribunal considers whether to affirm a decision to cancel a visa under s 501CA(4) of the Act, it must consider the legal consequences of that decision as stated in Paragraph 9.1 of the Direction. In this matter, this includes assessing the implications of FBPS being removed from Australia as soon as reasonably practicable.
In NBMZ v Minister for Immigration and Border Protection,[76] the Full Federal Court held that while the Respondent has broad discretion under the Act, the decision must still follow the legal framework set by the law. The Respondent – and the Tribunal – must consider the legal consequences referred to in the preceding paragraph when making their respective decisions.
[76] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (‘NBMZ’). [8], [9], [153].
The Tribunal must approach this consideration in a logical and rational way, based on a correct understanding of the law, as the High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs.[77]
[77] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [25].
The Full Federal Court in Taulahi v Minister for Immigration and Border Protection[78] stated that the Tribunal’s obligation is to take into account “the direct and immediate statutorily prescribed consequences of the decision in contemplation.”[79] In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision.
[78] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 (‘Rano’).
[79] Ibid, [84].
These consequences are that FBPS would be liable to be removed from Australia as soon as reasonably practicable and would be excluded from returning to Australia. In this matter, ‘as soon as reasonably practicable’ would involve his non-parole period in jail, which ends in June 2026 and also his health. However, the Tribunal has the discretion to decide how much weight these consequences should carry in its decision-making process.[80]
[80] See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273, [33], [38].
Summarising Mr McCarthy’s contentions on this Primary Consideration as the Tribunal understands them:[81]
(a)FBPS's age and health circumstances are such that he is not fit to travel by plane, as supported by Dr Palk.
(b)In light of this, should FBPS’ visa cancellation be affirmed, and he is to be removed from Australia, he will be unable to travel by plane. As such, he will subsequently be delivered to immigration detention.
(c)The Act provides that a non-citizen need be removed from Australia as soon as reasonably practicable. However, given FBPS’s medical circumstances and the unlikelihood of him substantially recovering to a point where he would be fit to fly, there would be no such circumstances where it would be reasonably practicable to remove him from Australia. Therefore, sending him to immigration detention to wait until it is reasonably practicable to remove him is a futile, and unlawful, process given that it will never be reasonably practicable for him to be removed.
(d)In such circumstances, FBPS would be subject to indefinite and arbitrary detention. Holding him in immigration detention indefinitely and arbitrarily would likely constitute a breach of Australia's international human rights obligations. Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.”
(e)Cancelling FBPS's visa and sending him to immigration detention for a period which is effectively indefinite (as he is unfit to fly and cannot be removed to the United Kingdom) is contrary to the ICCPR and Australia's international obligations.
(f)As soon as FBPS is placed into immigration detention, such detention will be unlawful, and he will be entitled to immediate discharge on the grounds of habeas corpus.
(g)It is noted that the above discussion does not particularly relate to Australia's non-refoulment obligations, which would be irrelevant in any case by way of s 197C(1) of the Act and Paragraph 9.1(1) of the Direction.
(h)Whilst it may be the case that Australia does owe a non-refoulment obligation to FBPS for the reasons provided in these submissions, it is not a breach of such an obligation that FBPS submits is the legal consequence relevant for this consideration. Instead, it is submitted that the legal consequence of a non-revocation decision is subjecting FBPS to indefinite, arbitrary and unlawful detention within an immigration detention due to him being unfit to travel, and there being no foreseeable scenario where he would become fit to travel.
[81] Exhibit A1: [89] – [99].
Summarising Mr Hopkin’s closing submissions on this Primary Consideration as the Tribunal understands them:
(a)FBPS contends that due to his physical state, he is unable to travel by air and that a decision to affirm the reviewable decision would result in him being indefinitely detained in immigration detention.
(b)FBPS has sixteen months before his parole date.
(c)There is no medical evidence before the Tribunal that confirms that he cannot travel.
(d)Both Dr Palk and Professor Khrishnan conceded that FBPS may recover to the point where he could travel.
(e)Consequently, the argument that he may be indefinitely detained is speculative and should not be given any weight.
The Tribunal has considered the evidence and testimony before it and the contentions above in assessing the legal consequences arising from either affirming or setting aside the reviewable decision.
Tempered by the speculative aspect in terms of FBPS’s health at the time he becomes eligible for parole, the Tribunal considers that the conjunction of his current state of health as at the hearing of the matter and the legal consequences of a decision by the Tribunal to affirm the reviewable decision support a finding in favour of setting the reviewable decision aside.
Some of the legal consequences in this matter flow directly from the Tribunal’s decision. Others are more removed in terms of causality, such as the state of FBPS’s health, whether he may be released early from jail on parole and whether he would be fit enough to travel in sixteen months. Based on this analysis the Tribunal only gives this Other Consideration a slight weight.
The Tribunal notes that the ICCPR has not been incorporated into Australian domestic law. While some provisions of the ICCPR have been implemented into Australian law through various legislative schemes, the ICCPR has not been comprehensively incorporated. This means that individuals cannot directly invoke the ICCPR in Australian courts unless the specific provision they are relying on has been implemented through domestic legislation. FBPS’s contentions did not specify such a provision.
The Tribunal’s finding
The Tribunal finds that in these circumstances this Other Consideration supports setting the reviewable decision aside.
The Tribunal further finds that this consideration carries a slight weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
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.
There is evidence and testimony before the Tribunal to show that FBPS has few, if any, contacts in the United Kingdom. He is seventy seven, in poor physical health, and has Parkinson’s disease. His current aggregated Australian and United Kingdom pension income appears modest, and it is unclear whether he is entitled to receive a United Kingdom pension if he returns there.
Summarising Mr McCarthy’s contentions as the Tribunal apprehends them:[82]
[82] Exhibit A1: [67] – [88].
(a)FBPS’s health has significantly deteriorated since the delegate’s decision. His age and health have already been discussed at length and are sufficiently demonstrated within the supporting materials. He suffers from Parkinson’s disease and has numerous other health issues. He takes numerous types of medications for his health conditions.
(b)His health issues and age pose significant concerns were he to be removed from Australia. Any support or care the applicant may be able to receive upon arrival in the United Kingdom (which is limited) would not be immediate, and he would likely face significant delays in acquiring such required support or care. Such delays may be extremely detrimental (if not fatal) for him.
(c)Additionally, the flights required to travel from Sydney to Scotland when combined are extraordinarily strenuous and lengthy. His current health conditions are such that he would likely deteriorate significantly further on the flights or potentially die.
(d)In Dr Palk’s 23 January 2025 report, Dr Palk provided the following:
“4.12 In the writer's opinion, [FBPS] has serious impaired cognitive functioning, severe immediate memory deficits (possible dementia) and has very frail health. I do not consider him fit to travel by plane. A medical practitioner is better qualified to comment on the state of his physical health.
4.13 I am confident a comprehensive memory and neurocognitive testing would confirm my clinical opinion.
4.14 I would be supportive of a protection order for him to remain in Australia. Due to [FBPS]'s old age, medical problems, major neurocognitive disorder and living most of his adult life in Australia he would experience great hardships if deported and his life expectancy would likely be shorter.”
(e)Given his medical circumstances and that there is no foreseeable scenario in which he will once again become fit to travel by plane, a decision which sends FBPS to immigration detention indefinitely would be unlawful and place Australia in breach of its international obligations.
(f)FBPS would have nowhere to live were he to be removed to the United Kingdom. His family will not be traveling with him to the United Kingdom in such circumstances, and he does not have any friends or family he can rely upon already living in the United Kingdom.
(g)His age and health conditions are such that he will be unable to work. He does not have any savings to rely on upon his departure. He has no house or organised living in the United Kingdom.
(h)With regards to his ability to obtain any aged pension in Scotland, if he even is eligible, the amount he would be able to claim is negligible and would not greatly assist him with the cost of living in the United Kingdom. To be eligible for the aged pension, he must have completed at least one year of either working and paying national insurance, getting national insurance credits, or making voluntary national insurance contributions. Due to his poor memory, he cannot recall whether he satisfied any of those criteria, nor would he be able to recall with precision (if he did satisfy the criteria) how many years he did so.
(i)Due to his age, he only has to have satisfied the abovementioned criteria for a period of one year. However, the amount of aged pension one gets is determined by the number of years of national insurance payments. To qualify for the full pension amount of £169.50 per week, a person would need at least 30 qualifying years of national insurance contributions. The less qualifying years one has, the less one receives each week. If one assumes he commenced working full time at eighteen and worked until he left the United Kingdom in or around May 1981 (when he was around thirty four), then it may be assumed that the applicant would qualify for, at most, fifteen years of national insurance payments. In such circumstances, the applicant would be eligible for only about £84.75 a week maximum.
(j)Around £84.75 a week is in no way sufficient for FBPS to support himself in the United Kingdom. In 2023, to reach a minimum acceptable standard of living as a single person in the United Kingdom, one needed to earn about £29,500.00 a year (about £567.31 a week). Any pension he may be eligible for would be significantly below this minimum, noting that the maximum pension he may be eligible for is about 15% of the required income to reach a minimum standard of living. It is likely that since 2023, the cost of living in the United Kingdom has only worsened; however, even if it has improved slightly, it certainly would not have to an extent which would allow FBPS to support himself with an aged pension.
(k)It may be the case that FBPS's family in Australia could somewhat improve any financial support he may receive; however, such would cause an incredible burden upon his Australian family, and they would likely face severe financial hardship. Additionally, any support his family would be able to provide is likely to be insufficient given the cost of living in the United Kingdom and other financial requirements he would need to properly adjust himself in the United Kingdom.
(l)Should FBPS be removed from Australia, he will no longer be eligible for an Australian pension given that to be eligible for the Australian pension, one needs to be living in Australia.
(m)FBPS will not qualify for the Scotland Best Start Foods program which assists parents/carers with buying food.
(n)FBPS will face extreme emotional hardship by being separated from his family.
(o)The delegate rightly found that FBPS will face practical, financial, and emotional hardship upon a return to the United Kingdom due to his age, poor health, lack of family and social support, and lack of medical and economic support. The delegate, however, posited that FBPS “will have access to health services and treatment services in the United Kingdom commensurate to other citizens of the United Kingdom in his situation.” However, the test for whether someone is eligible for the relevant health services is not as simple as if they are a citizen of the United Kingdom.
(p)It is true that healthcare in Scotland is generally provided free of charge by Scotland's national public health service and that everyone who generally is a resident in Scotland is entitled to access to health care. However, United Kingdom citizens who wish to access the public health service must demonstrate to the relevant body that they are 'ordinarily resident' in the United Kingdom.
(q)In determining whether FBPS would constitute the definition of 'ordinary resident,' and therefore be granted access to free healthcare, a decision-maker will need to consider whether FBPS is settled for purposes as part of the regular order of their life for the time being, whether for a long or short duration. Various factors would be considered, including length of stay in the United Kingdom, intention to remain, housing stability, employment status, and family connections—most of which would not favour the FBPS’s case.
(r)FBPS does not satisfy the majority of these indicators. In such circumstances, it is reasonable to believe that upon seeking healthcare in Scotland, FBPS will face difficulty in obtaining it. It is possible that FBPS would not be deemed as ordinarily resident and therefore not granted access to free healthcare. In such circumstances, FBPS will be unable to obtain the medical support he requires.
(s)Even if a decision-maker were to determine FBPS as ordinarily resident and someone who can access the healthcare system, such a process is likely to take an exuberant amount of time. Administrative processes are often lengthy, and FBPS frankly does not have the liberty to wait significant time for such a decision. FBPS will require immediate care and support upon his arrival in the United Kingdom. During the time for the relevant body to consider any application/request made by the applicant, he would be deprived of necessary healthcare and will likely face irreversible hardship and damage.
(t)In any event, it is evident that the delegate provided less weight to this Other Consideration in light of the quick conclusion that FBPS would have access to health services and treatment services in the United Kingdom commensurate with other citizens. However, it is not so clear whether FBPS is eligible for such services, and even if he is, acquiring such will be arduous and difficult, and he will likely face severe hardship in the interim.
(u)In light of all of the above, it is submitted that the Other Consideration ought to provide substantial weight in favour of revocation.

Summarising Mr Hopkins’ contentions as the Tribunal apprehends them:[83]
[83] Exhibit R2: [67] – [73].
(a)Subparagraph 9.2(1) of the Direction requires decision-makers to consider the extent of any impediments that the non-citizen will face “if removed from Australia to their home country.”
(b)This assessment must take into account:
(i) the person's age and health;
(ii) whether there are substantial language and cultural barriers; and
(iii) any social, medical and/or economic support available to them in that country.
(c)The term ‘health’ in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person's physical wellbeing and includes “the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury.”
(d)FBPS contends that his health issues and age pose significant concerns if he is removed from Australia and that there is no foreseeable scenario in which he will become fit to travel by plane.
(e)FBPS argues that any decision not to revoke the visa cancellation would cause him to be in indefinite immigration detention. Regarding his fitness to travel by plane, he relies on Dr. Palk’s January 2025 report which states: “I do not consider him fit to travel by plane. A medical practitioner is better qualified to comment on the state of his physical health.”
(f)The Respondent notes that any decision by the Tribunal would not immediately affect FBPS as he would remain in prison until his release, which is at the earliest 10 June 2026, some 16 months away. Moreover, Dr. Palk (who is not a medical doctor) expressly states that a medical practitioner is better qualified to comment on FBPS’s physical health, which is particularly relevant as Dr. Palk's interview with FBPS was conducted by telephone.
(g)FBPS contends that he would not have access to housing, would not have immediate access to healthcare, and may only be able to receive a limited pension were he to return to Scotland. He also contends that he will face difficulty in obtaining public healthcare.
(h)The Respondent contends that FBPS would not face substantial language or cultural barriers on return to Scotland (Paragraph 9.2(b) of the Direction), nor does FBPS contend that he would do so.
(i)The Respondent concedes that this consideration favours setting the reviewable decision aside, and that FBPS is likely to face some hardship if removed to Scotland.
(j)However, the exact nature of that hardship is somewhat uncertain given that, at the earliest, he would not be removed to Scotland for sixteen months (based on a parole eligibility date of 10 June 2026), and FBPS’s contentions regarding his ability to access social security and healthcare are necessarily somewhat speculative.
(k)Having regard to this and noting that Primary Considerations should generally be given greater weight than the Other Considerations (paragraph 7(2) of the Direction), the Respondent contends that this Other Consideration should be attributed moderate weight in favour of revocation.
The Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that FBPS, if removed from Australia to the United Kingdom, will face in establishing himself and maintaining basic living standards taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
The phrase “(in the context of what is generally available to other citizens of that country)” in Paragraph 9.2(1) is of significance because it establishes the measure by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
FBPS is seventy seven.
FBPS is in poor physical health. He has Parkinson’s disease. He appears to have suffered a cognitive decline since 2022.
In assessing FBPS’s mental health in terms of his anxiety and depression claims, the Tribunal acknowledges the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[84] and particularly paragraphs [12] – [14]. The Tribunal considers, based in part its assessment of Primary Consideration 3, that FBPS likely faces a loss of emotional, psychological and potentially financial support due to separation from his immediate family if removed to the United Kingdom. The Tribunal infers that it is that treatment for his Parkinson’s disease and cognitive decline is available in the United Kingdom.
[84] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that FBPS, based on his oral testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to the United Kingdom.
The Tribunal, applying the same reasoning, also considers that FBPS is unlikely to face any significant cultural issues.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The evidence before the Tribunal is mixed. While acknowledging FBPS’s contentions on this consideration, the Tribunal notes that there is no evidence before it of FBPS or his representatives inquiring as to his United Kingdom pension eligibility. FBPS’s contentions also presuppose that he will return to Scotland despite the evidence that he has little or no support there and the fact that he is a citizen of the United Kingdom, not just Scotland.
FBPS does not appear to have any personal social networks available to him in the United Kingdom.
The Tribunal’s finding
The Tribunal has considered above the extent of any impediments that FBPS, if removed from Australia to the United Kingdom, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely that FBPS would face emotional, psychological, practical and financial hardships if he were returned to the United Kingdom, as well as risks to his physical and mental health. He is likely to face difficulties in establishing social, medical and economic support. He is unlikely to face any language or cultural barriers
After assessing its totality, the Tribunal finds that this Other Consideration carries strong weight in favour of setting aside the reviewable decision.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence and testimony before the Tribunal enlivening this consideration.
The Tribunal’s finding
The Tribunal finds that this Other Consideration carries neutral weight.
THE TRIBUNAL’S FINDINGS
The statutory framework poses two issues for the Tribunal to address:
(a)character test: whether there is a reasonable suspicion that FBPS does not pass the character test in terms of s 501(6)(b), and whether FBPS satisfies the Tribunal that he passes the character test,[85] and, if not,
(b)exercise of discretion: whether there is another reason whether the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.
[85] Migration Act 1958 (Cth), s 501(2).
The Tribunal found above that it was satisfied that FBPS did not pass the character test.
In determining whether there is ‘another reason’ to set aside the reviewable decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
Addressing Primary Consideration 1, the Tribunal found that FBPS’ offending is very serious, that the consequences of any such future offending of the type that FBPS has previously engaged in could result in severe harm to members of the Australian community and that the likelihood of his future re-offending is small. In view of the Index Offences’ very serious nature and impact, the Tribunal considers that any risk that they may be repeated is unacceptable. The Tribunal further found that Primary Consideration 1 in its totality weighs dispositively in favour of affirming the reviewable decision.
Primary Consideration 2 favours affirming the reviewable decision and carries very strong weight.
The Tribunal found that Primary Consideration 3 carries strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 4 carries neutral weight.
The Tribunal found that Primary Consideration 5 weighs substantially in favour of affirming the reviewable decision.
The Tribunal found that the legal consequences of the decision regarding FBPS’s Visa carries a slight weight in favour of setting the reviewable decision aside.
The Tribunal found that the extent of impediments FBPS would face if he were removed to the United Kingdom carry a strong weight in favour of setting the reviewable decision aside.
Other Consideration (c) carries neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction).[86]
[86] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[87]
[87] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
In applying this process, the Tribunal has regard to the Direction and specifically Paragraph 7(2):
“The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.” (Emphasis added.)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[88] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[89]
[88] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492.
[89] Ibid at [37]– [39].
Two further authorities offering guidance are His Honour Justice Dowsett’s decision in Aksu v MIMA[90] at [10] – [13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and His Honour Justice Sackville’s decision in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[91] at [54].
[90] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514.
[91] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion:
“(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.” (Emphasis added.)
Taken together these points above support the argument that the Tribunal retains a discretion to determine in a specific matter whether ‘greater weight’ should be given to Primary Consideration 1.
The Tribunal considers that this matter attracts the application of Primary Consideration 1’s greater weight.
Having conducted and considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations and the Other Considerations in this matter leads this Tribunal to find that it is satisfied that there is not another reason to set aside the reviewable decision.
DECISION
Pursuant to s 105 of the ART Act, the Tribunal affirms the reviewable decision dated 24 November 2024 not to revoke the cancellation of FBPS’s Visa.

I certify that the preceding one hundred and ninety four paragraphs (194) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave

..............[SGD]..............
Associate
Dated: 16 March 2024

Date(s) of hearing: 11 & 12 February 2025

Solicitors for the Applicant: Mr McCarthy of Taylor Rose Lawyers.

Counsel for the Respondent: Mr Hopkins of Mills Oakley Lawyers.

AATA 3246, [67] (Senior Member Bellamy) (‘GTPT’).

Date(s) of hearing:	11 & 12 February 2025
Solicitors for the Applicant:	Mr McCarthy of Taylor Rose Lawyers.
Counsel for the Respondent:	Mr Hopkins of Mills Oakley Lawyers.