FBPS and Minister for Immigration and Multicultural Affairs (Migration)

Case [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)

Continue reading FBPS and Minister for Immigration and Multicultural Affairs...

Sign in free to access the full text

Details
AGLC
FBPS and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 682
Case
[2025] ARTA 682
Decision Date

CaseChat Overview and Summary

In the matter of FBPS and Minister for Immigration and Multicultural Affairs (Migration), the central issue before the court was whether there were sufficient grounds to set aside the cancellation of FBPS’s visa, given his conviction for serious sexual offences against a child. FBPS, a British citizen residing in Australia since 1981, was convicted of two counts of sexual intercourse with a person under the age of 10 years. The visa cancellation was based on FBPS’s failure to meet the good character test under Australian immigration law. The court needed to decide if there were other reasons to revoke the visa cancellation decision.

The court examined the principles and considerations outlined in Ministerial Direction No. 110, which provides the framework for the Tribunal’s assessment of visa cancellation decisions. Key among these considerations was whether FBPS’s serious criminal conduct warranted maintaining the visa cancellation, or if other factors suggested a revocation was appropriate. The court weighed the seriousness of FBPS’s offences against his limited risk of reoffending due to his advanced age and health conditions, including a recent diagnosis of Parkinson’s disease. The court also considered FBPS’s demonstrated remorse and insight into the harm caused by his actions. After thorough deliberation, the court determined that despite the gravity of FBPS’s crimes, his negligible risk of reoffending, combined with other mitigating factors, warranted setting aside the visa cancellation. This conclusion was based on the substantial evidence of FBPS’s genuine remorse, his limited future risk, and the specific circumstances of his health and family support.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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