GCXD and Minister for Home Affairs (Migration)

GCXD and Minister for Home Affairs (Migration) [2019] AATA 5162 (2 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5732
Re:GCXD
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:2 December 2019
Place:Sydney

The Tribunal decides to:
1.set aside the reviewable decision made by a delegate of the Respondent on 9 September 2019 not to revoke the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa; and
2.substitutes a decision that the decision dated 9 September 2019 to cancel the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958.

…………[sgd]..……………………………….
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – citizen of Malaysia – applicant has substantial criminal record – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – Ministerial Direction No. 79 applied – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Boyce and Minister for Home Affairs (Migration) [2019] AATA 2218
FYBR v Minister for Home Affairs [2019] FCAFC 185
Issac and Minister for Immigration and Citizenship [2012] AATA 765
SECONDARY MATERIALS
Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia (19 April 2018)
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
2 December 2019
INTRODUCTION

This matter relates to an application filed by GCXD (“the Applicant”) on 12 September 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 9 September 2019 not to revoke the mandatory cancellation of his Class BB (Subclass 155) Five Year Resident Return visa.
At the hearing before the Tribunal, the Applicant was represented by Mr Leonard Karp of counsel on instructions from Kinslor Prince Lawyers. The Respondent was represented by Mr Neil Cuthbert of Clayton Utz.
BACKGROUND
The Applicant is a 46-year-old citizen of Malaysia. He arrived in Australia as a child, aged 8 years, with his parents and younger sister. His parents moved the family to Australia so the Applicant and his sister could receive a better education.
The Applicant completed his schooling in Australia and thereafter attended university where he commenced studying a combined degree of electrical engineering/computer science. The Applicant switched part way through that course and graduated with a Bachelor of Science (Computer Science) (Hons).
Between 1996 and 1998, the Applicant worked as a software engineer developing mainframe database systems. He then studied and completed a Bachelor of Divinity (Hons) and Diploma of Ministry at a theological college.
The Applicant married NH in 2000. There were two children of the marriage, namely RH, born in 2006, and JH, born in 2009.
From 2003 to 2009, the Applicant was a full-time pastor. He also studied a Master of Arts (Theology). He was awarded that degree in 2010. During that same period he was also awarded a Certificate IV in Christian Counselling and Communication Skills. From 2010, the Applicant was a part-time university PhD student whilst employed as a full-time associate pastor and pastoral assistant. He was working towards becoming an ordained minister.
In addition to working, the Applicant served on a number of Christian committees and worked as a volunteer for approximately 15 years until he was imprisoned in 2016. His committee work extended to providing written material to Christian agencies in Asia. He was also an examiner for a college for a period of 13 years and provided training for missionaries.
In 2016, following his plea of guilty, the Applicant was convicted and sentenced to 33 months imprisonment with a non-parole period of 18 months for the following offences:
·Use carriage service for child pornography material; and
·Produce, disseminate or possess child pornography (2 counts).
The Applicant’s sentence was adjusted by the Court of Criminal Appeal so that the sentence of 33 months would commence on 2 June 2017 and expire on 1 March 2020 with the non-parole period of 18 months to expire on 1 December 2018.
On 23 January 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1958 (“the Act”) on the grounds that he did not pass the character test because he had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Act, and because he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
The Applicant was invited to make representations seeking revocation of the mandatory visa cancellation and did so within the period and in the manner specified. The Applicant’s submissions seeking revocation of the Original Decision were summarised by the Ministerial delegate as follows:
(a)He knew his offending was wrong;
(b)He has engaged in counselling sessions and intends to continue after his release;
(c)He has plans to implement barriers to avoid any reoffending;
(d)His wife and two children need him to return home;
(e)His parents need him as they become older;
(f)He has strong support from the Chinese Church community who are aware of his offences;
(g)He would struggle returning to Malaysia as he has been living in Australia for 37 years; and
(h)He would struggle to find work and support his family.
On 9 September 2019, a Ministerial delegate decided that the Minister was not satisfied that the Applicant passed the character test; nor that there was another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation.
On 12 September 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the Original Decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant does not dispute that he does not pass the character test. The Applicant has been sentenced to a term of imprisonment of at least 12 months. The concession was rightly made. The Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
In relation to the Applicant’s offending, agreed facts were provided to the sentencing court which can be summarised as follows:
(a)In relation to the first offence of using a “carriage service” to access child pornography material, the Applicant had used a peer-to-peer sharing program and encryption program to download 1806 files between March 2012 and March 2015. A significant number of the downloaded files contained file names indicating that child pornography material was downloaded. On the first hard drive, video files depicted victims aged between approximately 5 to 15 years old, with a majority featuring girls involved in penetrative sexual activity. It is estimated that over 80 different child victims are depicted in the material. The second hard drive revealed that certain search terms were used on the file sharing program to obtain child pornography.
(b)The child abuse material the subject of the second offence was 301 images and 170 video files. The agreed facts record that the material in these images and videos depicted children aged between approximately 7 to 15 years. It was estimated that there were over 300 different child victims depicted in that material.
(c)The child abuse material the subject of the third offence consisted of 57 videos. The agreed facts noted that the majority of the video files featured girls approximately 10 years old engaging in penetrative sexual activity. It was estimated that over 70 child victims were depicted in the video files.
(d)The material was classified using the Child Exploitation Tracking System (“CETS”) Scale, and the material was classified as being in categories 1 to 5 as shown in the table below:

CETS Scale Category Count 2 material Count 3 material

1 – Sexually suggestive posing with no sexual activity
225 images

32 videos
8 videos

2 – Non-penetrative sexual activity between adults and children
59 images

38 videos
6 videos

3 – Non-penetrative sexual activity between adults and children
5 images

25 videos
4 videos

4 – Penetrative sexual activity between children or adults and children
11 images

69 videos
37 videos

5 – Sadism, humiliation or bestiality
1 image

6 videos
2 videos

6 – Animated or virtual depictions of children engaged in sexual poses or activity 0 0

Total number of files 471 57

In sentencing the Applicant, the learned Judge stated:
Generally speaking, these offences are very serious …
There are certain features of these crimes, generally speaking, which render these matters objectively, generally speaking, very serious.
The offences for which the Applicant was convicted and sentenced occurred over a period of three years. The Learned Sentencing Judge stated:
I am of the view that three years is a considerable period of time; three years provides in every second an opportunity for the offender to desist his activities; indeed the evidence contained within the psychological report based on something stated by the offender and from the offender’s wife is that the offender said that he at a number of points of time over those three years tried to stop doing what he was doing but ultimately failed to resist his urges and continued with his offending behaviour. For every second of time he had the opportunity to desist but he did not and is here today with the fact that the images he accessed created some 450 child victims.
The Respondent submitted the offending was serious and not victimless crimes. Counsel referred the Tribunal to the cases of Boyce and Minister for Home Affairs[1] and Issac and Minister for Immigration and Citizenship[2] in support of that submission. The Tribunal agrees.
[1] (Migration) [2019] AATA 2218.
[2] [2012] AATA 765.
The Applicant does not dispute that the nature of his offending was very serious, and Tribunal finds it to be so.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct is very serious. As the Learned Sentencing Judge said “these are not victimless crimes … There are real children being exploited for the creation of this material, and by possessing or accessing the material one feeds the demand for such material, which in turn encourages the creation of young child victims.”[3]
[3] Exhibit A, G Documents, page 60.
The Applicant submits that the risk of reoffending is very low as identified in the psychological report that was before the Learned Sentencing Judge for the following reasons:
·He is intelligent and self-aware;
·He genuinely wants to overcome the compulsions that led him to offend;
·He has undertaken counselling and treatment;
·He has the support of his spouse and large circle of friends; and
·He has spiritual and moral support.
The Evidence
The Applicant
In addition to oral evidence, the Tribunal also received the Applicant’s statutory declarations dated 10 October 2019 and 4 November 2019.[4]
[4] Exhibit F; Exhibit P.
The Applicant said that he decided to forgo his employment in the IT industry and pursue his calling and passion for Christianity and Christian beliefs, and pursue a career in the church and train for the ministry.
He met his wife through his church. They both were, and remained, active Christians enjoying a strong engagement with their church, its community, and service to its congregation and the broader Australian community. The Applicant’s work in the church and its services extended to overseas communities, including through the training of, and work undertaken with, the missionary service.
He was introduced to legal pornographic material in his late high school years. He later became aware of child pornography from watching a program on television, but it was not until many years later that he stumbled across child pornography when looking at legal pornography on the internet. He said he “had a look”.
The Applicant admitted that he had collected child pornography over the years. He did so in cycles and would feel guilty about doing so and then delete it from his computer record. When asked why he collected child pornographic material, he said that he wanted to know the answer to that question himself. He knew it was wrong, sinful and illegal, and part of the reason was that the material was taboo and more taboo than normal pornography. It therefore was exciting.
The Applicant said that he gained an understanding of his reason for collecting child pornography when speaking to Dr Cairns. She gave the Applicant a better understanding of the reason, and that he had a compulsion for collecting the material. The Applicant gave an example of that compulsion. He explained that he would have material in a series, and there would be a gap in the series and hence a gap in that collection. He felt compelled to fill the gap. But, he knew it was wrong sinful and illegal and he tried to deal with it. The Applicant said he dealt with the conflict within himself. First, he had the compulsion to collect, then repent, and then delete the pornography.
The Applicant said that this process of collect, repent and delete happened several times and was a cycle of behaviour. The cycle would be irregular, sometimes over weeks or months, and that he accessed the material at home when no one else was around.
The Applicant said to his shame that he did not think of the children depicted in the videos and did not then consider them as people going through something horrific. To him at the time, it was the compulsion to collect something that was taboo. He saw the images “as if one was looking through the eye of a camera”.
Following his arrest, the Applicant worked to inform himself about his behaviour and seek assistance. He came to realise this was not a situation of looking through the eye of the camera. He understood that this was a child who was being filmed with others in the room and that it must have been frightening for that child. He said this brought home the gravity of his conduct.
The Applicant said that he engaged in victim empathy training with a psychologist Ms Carolyn Hare. He learnt about the impact the creation of the pornographic material had on children and how, whilst a child might get on with his or her life, suddenly the image could be reproduced and potentially have a devastating effect on that child.
The Applicant said that during the cycle of collect, repent and delete, he realised he had a problem. He knew he needed help and wanted this compulsion to go away. However, the Applicant said he felt trapped. He feared that if he spoke out to his friends and colleagues he would have had to face criminal proceedings. His friends, being pastors and ministers of the church, had mandatory reporting obligations. He understood the same applied to medical practitioners. He even looked up the legislation to check that was so. He could not go to them for assistance. He said he gave a lot of thought as to who he could go to for help. He was too ashamed to speak out to his wife.
The Applicant said that upon his arrest his initial feeling was one of surprise because he had just completed a cycle of collect, repent and delete, and he thought he had deleted all pornographic material. He said he felt free from the burden he had been dealing with, but he also felt for his wife and family. He said that he recalled the look on his wife’s face when she found out, that he felt so bad for what he was putting her through, and was very ashamed. He also said that it was also a great relief, his conduct was “out” and he could now get help for his condition.
The Applicant said that he had been involved in a lot of church businesses and events and he was concerned for the church, its congregation, and friends and how they may find out about his offending. The Applicant spoke to a senior minister who helped him. The Applicant arranged two meetings with friends in the ministry and told them about the circumstances of his offending, and apologised to them before letting them down. He said that he wanted people to find out about his conduct from him.
The Applicant said the reaction was varied, but predominantly people were shocked or saddened. However, he continues to receive a lot of support and understanding from those friends and colleagues. He referred to a person “R” who was at a meeting. She was angry. She subsequently came to visit him at his home, apologised for her anger, and now “R” has become very supportive of him. She has written to him whilst he has been in custody.
Following his disclosure to the church, the Applicant lost his paid position as a pastor and became unemployed.
After he was charged and before he saw a psychologist, the Applicant joined a support group called Sexaholics Anonymous. They met each week and he attended regularly for four months. He stopped because he obtained employment, which required him to work night shifts, to support his family. After his night shifts ended, he returned to those regular meetings for a further four months until he was imprisoned in July 2017.
Prior to being imprisoned the Applicant undertook psychological counselling. He had approximately 2 sessions with Dr Marcelo Rodriguez and 14 sessions with Ms Carolyn Hare at LSC psychology which he found very helpful. He learned about victim empathy, triggers to his offending pathway, setting goals, and good life theory. He also undertook cognitive behavioural therapy.
The Applicant described this psychological treatment as being life changing, particularly as it engendered victim empathy and brought home the horror associated with the pornographic material he had been collecting. He described the goal setting as very powerful, particularly because he was required to write down goals for the future and he was thinking and committing those goals to paper. He came to understand the triggers of his offending pathway and he was given tools that enabled him to interrupt that pathway to offending. He gave the example of when suffering from stress or boredom he was given ways to alleviate those conditions so he would not get to the stage of succumbing to the urge to return to viewing and collecting child pornographic material.
The Applicant said that the church supported him and paid for some of the psychological counselling, others were paid for in part by the Applicant’s family savings and in part by a Mental Health Treatment Plan (“MHTP”).
Following his arrest, the Department of Families and Community Services (“DFACS”) asked the Applicant to leave the family home pending a report focusing on any sexual risk that he may pose to his two children. He resided with his father during that period.
That DFACS assessment was done by Dr Emma Collins psychologist who provided a report dated 19 December 2015.[5] In that report, Dr Collins reported that the Applicant identified a long-term interest in pornography, in particular adult bondage and simulation to pain, and that he viewed child-abuse material and collected child pornography in a compulsive manner over a period of time. His interest was predominantly post-pubescent females. Dr Collins opined that such viewing may have helped alleviate boredom and provided the Applicant with stimulation outside of his general lifestyle. Dr Collins opined that “such seemingly extreme phantasies are common in some internet sexual offenders and do not reflect a tendency to act out such interest. …… this applies in [the Applicant’s] case, these interests are kept separate to the day to day lifestyle.”
[5] Exhibit A, G Documents, pages 317 – 330.
Dr Collins initially assessed the Applicant as a low – moderate risk of sexual recidivism. She referred to discussions she had with his psychologist, Ms Carolyn Hare who reported that the Applicant had reduced his use of pornography, and referred to treatment goals including the development of victim empathy and offending behaviour. Dr Collins noted that the Applicant expressed appropriate remorse for his criminal conduct during his assessment. She opined that he did not pose a sexual risk towards his children and recommended his wife engage in sessions to ensure she fully understands her husband’s offending behaviour and his sexual interest, and to remain protective of the children. It was recommended that the Applicant could return to his home, but that supervision with his children be maintained by his wife or other appropriate adult family member until his wife had at least two sessions to focus on her husband’s offender behaviour conceptual interest. The Tribunal notes that the Applicant’s wife engaged in such sessions.
Dr Collins also provided a report to the Learned Sentencing Judge dated 18 April 2016.[6] Dr Collins confirmed the contents of her previous report and that the Applicant collected images and later deleted them because of his disgust and regret for his criminal conduct. He did so to alleviate boredom. She noted his expression of regret which “seems to be enhanced through his greater understanding of victim empathy. That is, [the Applicant] said that he never fully considered the “camera in the room” that was filming the live abuse of victims. He expressed “horror” for his offending and the impact on victims commensurate with his greater understanding of how images are children”. Dr Collins again referred to her discussions with Ms Hare who confirmed that the Applicant had ceased accessing any forms of pornography, including adult pornography. After weighing all of the relevant considerations, Dr Collins opined that the Applicant was a low risk of reoffending. This risk rating had reduced commensurate with his good treatment engagement. She also recommended he access available group based offence specific training programs for relevant custodial sexual offending programs should he be incarcerated.
[6] Ibid, pages 331 – 344.
The Applicant said that, once imprisoned, he applied for entry into the sex offender program. He was put on a waiting list but, because he was assessed as a low risk of reoffending, he was not offered the opportunity to engage in the program. As time passed it became too close to his release date and he became ineligible for the program. Accordingly, the Applicant paid for his own psychologist program with Mr Bradley Jones. Mr Jones provided a report dated 6 August 2018.[7] At the time of writing that report, Mr Jones also had the benefit of a report of Mr Patrick Sheehan, a forensic psychologist, dated 4 May 2018, together with the Applicant’s statement.
[7] Ibid, pages 365 – 367.
Mr Jones noted the Applicant’s prior treatment with Dr Rodriguez and Carolyn Hare, together with the assessment of Dr Collins who reduced her assessment of low-moderate risk of reoffending in December 2015 to low risk of reoffending in April 2016. Mr Jones also noted the treatment and assessment by Mr Sheehan. Mr Jones opined that the Applicant “has successfully completed all aspects of treatment appropriate for his offending.”
In respect of his treatment program with Mr Jones, the Applicant said that he shared what treatment he had previously received and they worked on other areas to round off his treatment program. Those other areas included Motivation – internal/external barriers, Thinking Errors, Denial, My Life as a Film, Narrative Roles, and Cycles. The Applicant said that he found the training and cycles very useful because it again provided tools to overcome the triggers to offending. He again gave the example of stress and boredom which could be alleviated by spending time with his wife, and engaging in other activities such as exercise and engaging with friends. He explained that through his training, if at any stage he was to feel an urge to look at pornography or child pornography, he had learnt tools to prevent that urge becoming stronger, such that he would give into it. He has learnt that the urge will abate “like a wave”. He also said that because others such as friends, church colleagues and his wife know of his offending, he can go to them for support and guidance should he feel such an urge and before he acted upon it.
The Applicant said that whilst in immigration detention he has had a mobile phone but has placed a DNS filter on it to block inappropriate websites. He admitted in cross-examination that, given his expertise in computer technology, he could find ways to circumvent such filters on a telephone or computer, but he has not done so, nor will he do so in the future.
Further, if permitted to return to the community, he intends to maintain counselling at least monthly. He will pay for this personally but may receive some financial assistance from MHTP. The Applicant was asked what he would do if someone were to confront him with pornography in the future. He said it has now been years since he has accessed pornographic material, but that he would now tell that person “it is not helpful for me to see this”. He also said that he has a “safety plan” with his wife and PS (to whom I will refer later in the decision) to tell them within 24 hours of such an event or likely event occurring.
In cross-examination, the Applicant was taken to the agreed facts referred to in the sentencing remarks of Judge Culver.[8] He accepted that the hard drive used for storing the material used and encryption software, was to prevent others accessing that material. He agreed that he used search terms such as “pre-teen hard core porn.” He accepted that search term would pick up prepubescent males and females. He said he had an interest at the time in looking at females aged 14 years and above, but that there was no specific search term for such teenage pornography. He acknowledged that some of the material located by police included children aged between 5 and 15 years, the majority being girls engaged in penetrative sexual activity. He accepted that one hard drive contained a record of 1806 files downloaded between 15 March 2012 and 25 March 2015.
[8] Ibid, pages 54 – 58.
The Applicant said he first downloaded material involving minors when at university from about 1995, and that he has had access to such material intermittently since then. In the period March 2012 to March 2015, he was going through the cycle of collect, repent and delete. He estimated that he had gone through about 10 such cycles in that period. He consistently confirmed he did this because it was taboo and therefore it gave him a thrill and excitement. It was a compulsion that, he said, he was unable to resist. He acknowledged that he kept it a secret and no one else knew.
The Applicant was cross-examined about the category 5 images that the learned sentencing Judge described as “disturbing” and “… images of gross and vile exploitation of children.” Her Honour went on to describe the images as “a degree of cruelty and suggested physical harm depicted in those sample images of the category 5 material[9].
[9] Ibid, pages 63 – 64.
The Applicant was asked how he could not regard such images as being those of human beings. He explained that this was one of the conditions he worked on with Mr Bradley Jones. It was part of the thinking errors and therefore was pushed to the back of his mind. He said he could not deny that he had the material in his possession, but he did not enjoy the material. He said he did collect and store the material, but that it was not for personal enjoyment.
The Applicant said that he did not think of those depicted in the material in terms of them being children of the same or similar age as his children. He never thought in terms of what if this was done to his child. He did not consider the fact that they were real people, part of society and a family. He said to his shame he saw these children in the images as depersonalised. He described this as part of the thinking errors. He said that he was not sexually aroused by the material but found them exciting because they were taboo. He said that he did not masturbate to such images and if he recalled such an image during masturbation he would lose interest. He only masturbated to adult images. He thought that this lack of sexual interest was “weird”.

The Applicant said that he would break through the barrier of striving to collect this material. He would then feel remorse and get rid of it. However, he would go back to such pornography from time to time. He consistently maintained that he was afraid of the consequence of informing family and work friends, and the consequence of the latters obligation to report.
The Applicant detailed how his wife reacted at the time of his arrest. He said she was appalled and that “you can see it on her face.” She was shown file names and one could see her horror and disgust. He accepted that his conduct had caused great damage to the marriage and he hoped to deal with that through counselling upon release. He was surprised to find his wife wanted to talk with him and he has now been open with her about the reason for his offending. He said he was amazed how supportive she has been and, albeit there was a straining of trust, the marriage has not broken down and they now do things to build that trust. Blocking access to pornography on the mobile phone is one of those things.
The Applicant was asked how he could tell his wife that this time it will be different. He said it would be different for a number of reasons. Before, he was struggling by himself. It was wrong and there were errors in his thinking. Sometimes he succeeded and sometimes he failed. However, having engaged in psychological treatment including with Dr Rodriquez and Ms Hare and others, he is better armed to deal with those urges that previously overtook him. He said he has a lot more insight into the reasons for his offending, the reason for the cycles, the triggers, and the thinking errors that were impacting upon him at the time. He is now strengthened. Further, he has large number of people who he knows, including pastors, friends and his wife, who know all the gory details and who he can ask for help. Those others, he said, can also ask him questions and challenge him. Before, he felt trapped. Now, there are people who he can ask and talk to about his struggles.
The Applicant said that he had a strong network of people and he was no longer on his own. He said that before, because his conduct involved something sexual, immoral and illegal, together with the thought of how it would be seen by the community, this also prevented him from talking to people. He repeated that the consequence of the obligation to report was an impediment to speaking out.
The Applicant sees Baptist minister Mr PS regularly. They pray together. Mr PS has been supportive throughout the criminal proceedings and whilst he has been in custody and immigration detention. The Applicant said that upon release he will return to his church but will never be employed by the church again. He believed he will be accepted into the congregation. He said Christians are meant to repent, turn away from their sins, and seek forgiveness. This he has done. Albeit he has not been back to his church since his imprisonment, he has had a large number of letters of support and forgiveness from members of the congregation.
NH (Applicant’s wife)
In addition to oral evidence, the Tribunal also received NH’s statutory declaration dated 11 October 2019.[10]
[10] Exhibit H.
The Applicant’s wife confirmed that she remains supportive of him and the continuation of their marriage. She is currently employed but struggling financially as the sole income earner. She receives financial support from the Applicant’s parents and close friends. Others within the community give financial support when they have the ability to do so. She does not expect them to keep giving. They have their own responsibilities. The Applicant’s mother was to have retired but continues to work to provide financial assistance to NH and the family.
NH confirmed that she and the Applicant were married in 2000. Until the Australian Federal Police attended their premises in April 2015, she had no idea that the Applicant was accessing any pornographic material. Police arrived at the house and said they were looking for child abuse material. She was extremely shocked, found it hard to believe, and was horrified by what they found. She said that they took the Applicant away, there was a bail hearing the next day, and she kept in contact with him during that time.
NH said that the Applicant apologised to her for his conduct, said he had no excuse, that he had tried to stop, that he did not want to do it, and that he hated what he was doing. He later said that he was relieved that he no longer had to hide his conduct.
NH said that she wanted the Applicant to return to the matrimonial home. At the time, she found his conduct hard to believe. All of his decisions in the past related to the care of others and she could see that he was then, and remains, extremely ashamed of his conduct and that it will not be repeated in the future. She said she supports him because he has been honest with her and not tried to hide his offending. He answered all her questions and he has taken responsibility for his misconduct. She said he knows his conduct was wrong and he is very sorry.
NH said that the Applicant wanted treatment for his conduct. He took the opportunity to go and receive treatment. He engaged with every aspect of the treatment that was required of him by those whom he consulted. She has been part of that treatment. He has made concrete goals and now has an understanding of the consequences of his conduct. He engaged in learning about victim empathy. He realises how awful it was for those being filmed, and he now has the tools to avoid reoffending. She said the Applicant had showed her his homework, shared with her the treatment process, and demonstrated to her how he has tried to understand the reasons for his offending.
NH said that the Applicant has support including from those people who know him from the congregation of the church, all of whom have expressed their ongoing support for the Applicant. NH listed a large number of people that have pledged their ongoing support for the Applicant, including those who gave evidence before the Tribunal. She said the support has been important to the Applicant and they value those people and how they have extended their love and support to him.
In cross-examination, NH said that when she saw the images they were very graphic, disturbing and involved real children. When she found out, she felt that she could not trust the Applicant and that he could not tell her the truth. However, he said he was scared, ashamed and did not know what to do. She said that the Applicant was relieved to tell her about his conduct now and get help.
NH said that she believed her husband needed that help and he opened himself up to people that they know. She described him as completely different now and that she believed him, and reaffirmed that she does not expect he will reoffend; “he wants to be free of this behaviour”. She accepted that this does not mean that there is no possibility of reoffending, and that they have put in place safeguards such that she does not believe it will get that far, and has reduced as much as possible the likelihood of reoffending.
NH described her relationship with the Applicant as much stronger. She understands things that she did not know about before, and in particular how alone he felt. He kept his feelings to himself but now is far more open with her. She reflected on the fact that, prior to his arrest, she would get frustrated with the Applicant and not know what he was feeling and he would not open up to her. In treatment, they have done exercises together and there has been a big change in the Applicant. She knows him better now and she knows that he needs support because he asked for it.
She confirmed that the Applicant will continue to seek psychological help and join a support group should he be released back into the community.
Mr PS
In addition to oral evidence, the Tribunal also received PS’s statutory declaration dated 13 October 2019.[11]
[11] Exhibit I.
PS is a Baptist minister and has known the Applicant for approximately 20 years. He has had a lot of interaction with the Applicant, who he described as having an astute mind and an effective trainer who engaged with others.
Since the criminal offending became known, his engagement with the Applicant has become significant. Before he was more aloof, remote and detached, but since the offending he has grown. When he was first charged, his vulnerability became evident and people are now more able to get to know him.
PS said that he and his wife worked with the Applicant and they are there for him as people he can go to with issues and struggles. The Applicant has spoken openly and honestly about his conduct and this, he said, has helped PS to understand his struggles.
PS said that the Applicant was honest, forthright, and gave a public confession of his offending. He has not tried to make excuses and his honesty has been significant. He referred to an addiction group within the church community who have provided support and accountability for his accessing of pornography.
PS made an agreement with the Applicant that they would meet once a month whilst in custody. Upon release, they have agreed to meet once a week in person or at the very least by telephone. The Applicant and his wife will be referred to counsellors to ensure re-entry into their marriage and the community. PS and his wife are available to help the Applicant. They see the Applicant and NH as people they love dearly, and hope to restore them to the family of their church.
PS has seen NH about once every six months. He said that she carries a significant load, and in particular financial stress in continuing to be the sole breadwinner for the family. He described NH as originally a carefree and bubbly person but, with all that has happened, worry and fear is now part of her life. PS’s wife is in regular contact with NH to ensure that she and the Applicant know that they will both be there for them. PS and his wife intend that contact will increase to weekly upon the Applicant’s release and return to the community. There was no cross-examination of this witness.
Mr AA
In addition to oral evidence, the Tribunal also received AA’s statutory declaration dated 11 October 2019.[12]
[12] Exhibit N.
AA is a Christian minister and has known the Applicant since he became the pastor of the church in 2011. He said the Applicant made a large contribution to the Australian community and the members of the congregation and the wider community. He described him as a person in the church who was caring, which he demonstrated to AA personally and to others. He described his contribution to the youth within the church.
When asked why, in his opinion, the Applicant would not reoffend, he said that he had kept in touch with the Applicant. He openly shared what he had done. Following that revelation and since his imprisonment, they have engaged in long and deep conversation. He believes that the Applicant is truly repentant and has shared openly what he has done. He has sought psychological help and acquired practical steps to address the risk of reoffending. The Applicant has shared with AA his conversations with psychologists and discussed with AA his compulsion, and addiction. He said the Applicant has read books and joined forums to address his offending. He, like PS and NH, confirmed that there are friends and congregation members who will continue to support the Applicant and rally around him and ensure that he remains honest.
AA confirmed the Applicant regularly prays with him. Before his incarceration, they would meet monthly and, when in gaol, he met with him 5 to 6 times a year, but with less personal contact in Villawood Detention Centre. AA said that he will continue to support the Applicant to ensure he does not reoffend. This will include their continued open and frank conversations and maintaining a close personal relationship. AA will help him in the needs of everyday life. He said he will be there for him and is one in whom the Applicant can confide should he ever have an urge to reoffend.
The Tribunal asked whether AA had any reporting obligations should the Applicant have confided in him about his conduct. AA confirmed that he had a mandatory reporting obligation. He would have spoken to the appropriate senior members of the church who would then guide him in the process of reporting the Applicant’s offending.
Mrs LA
In addition to oral evidence, the Tribunal also received LA’s statutory declaration dated 12 October 2019.[13]
[13] Exhibit G.
LA is a Christian ministry apprentice and the sister of AA. She has known the Applicant since he became a pastor in their church, and has known NH since she came to the church “a long time ago”.
LA and her husband were close friends with the Applicant and NH. The Applicant provided counselling to LA and her husband prior to their marriage. She used to meet weekly with NH, including following the Applicant’s arrest, and they would go for regular walks. More recently, LA has moved residence and their meetings have been approximately once every two to three weeks. They message and telephone each other regularly.
LA said she is worried about NH and how she is coping with the household work, and their children’s care, attention and schooling. She described NH as being in a constant state of stress. She now will easily get angry and snap at the children. She senses that NH is worried that she does not have the capacity to keep going, particularly without the support of the Applicant.
LA was assisting NH where possible in caring for the children. She would pick them up after school because she worked at a neighbouring school. She babysat regularly. She said the Applicant’s offending and imprisonment has been hard on the children. They can’t talk to friends about their father. She said it has been hard to coordinate their schooling and social activities.
LA confirmed that the Applicant wants to continue counselling and support. The church congregation were shocked and saddened when they learnt of the Applicant’s offending. He was a great pastor and a great friend.
She said it was appreciated that the Applicant came to speak with them following his arrest. They met at a house. The Applicant came with other church leaders and a leader would ask questions of the Applicant so that he could then explain his offending. He apologised for what he had done.
LA said that their church has changed a lot since the Applicant was taken into custody, and about one half of the congregation would not know him, but she believed the majority of those who do know the Applicant are willing to accept him back into the church. She did admit it may be hard for some.
Mr AC
In addition to oral evidence, the Tribunal also received AC’s statutory declaration dated 14 October 2019.[14]
[14] Exhibit O.
AC is an Anglican minister and chaplain and has known the Applicant since 1992. They first met when they were about 17 years of age at university. They both pursued training in theology and the Christian ministry. They worked in different churches but maintained a close friendship.
AC said that the Applicant was a role model. He was involved in church associations aimed at resourcing local churches and leadership training within the church. He worked on programs to develop training and lead training groups within the church. He served on leadership committees, including with respect to youth leadership training and interdenominational organisational support for hundreds of churches across New South Wales and beyond. This, he said, involved many thousands of participants each year.
AC said that the Applicant also conducted leadership training workshops and seminars, and was involved in running youth leadership training courses overseas. He provided a major contribution to leadership and teaching roles in churches, including Christian churches, and was a contributor to leadership and theological development in the church generally. He said that the Applicant’s work as a pastor touched the lives of many in their respective communities. He said that his work touched many hundreds, if not thousands, of people within and outside of Australia.
AC opined that the Applicant’s contribution to the Australian community has been of great significance over a long period of time.
Following his arrest and until imprisoned, AC met with the Applicant on several occasions including to pray and read the Bible. AC visited the Applicant on a few occasions when in gaol, but his attempt to see him in detention had to be aborted.
AC said he was confident the Applicant would not reoffend. On a personal level, he had shown great remorse and determination to move forward. In May 2015, AC was in regular contact with the Applicant. The Applicant asked AC to assist in organising a meeting with those in the Christian ministry to confess his offending. AC described the conduct as an amazing step of humility and a resolve to move forward. He described the Applicant as different now and that he has the support of a large portion of the community who are aware of his past and are all rallying around him in order to keep him strong and honest.
AC also referred to the Applicant’s character and the mechanisms that are now in place to help prevent him from reoffending as referred to by the Applicant in his evidence and confirmed by treating practitioners. AC also said that he and his wife were determined to be the best support to the Applicant.
AC referred to his own personal matters as outlined in his statutory declaration[15] which has led to his research learning and training in emotional functioning of the brain. He is trained in pastoral counselling. In that respect, AC opined that he has the additional experience and expertise to provide support to the Applicant to deal with and overcome underlying psychological issues following his release into the community.
[15] Ibid, pages 259 – 273.
In response to questions from the Tribunal, AC said that the church offers a strong network of support that is available to the Applicant. That includes one-to-one peer accountability practices, leadership, counselling and emotional support. These supports will also be available to his wife and children. He will no longer be permitted to practice as an employed minister of religion, but as a member of the church he will be warmly received and embraced.
Mr Jones
The Tribunal received two reports from forensic psychologist Mr Jones dated 13 June 2018 in relation to NH, and 6 August 2018 in relation to the Applicant, together with his oral evidence. Mr Jones was engaged by the Applicant to provide him with the psychological services that could not be provided by New South Wales Corrective Services because the Applicant had been assessed as a low risk of reoffending.
In his report, Mr Jones indicated that he received the assessment of Dr Collins and noted her opinion that the Applicant’s risk of recidivism was reduced from low- moderate in December 2015 to low in April 2016.
Mr Jones also had the benefit of the report of forensic psychologist Mr Patrick Sheehan dated 4 May 2018, who expressed a similar opinion that the Applicant’s risk of recidivism as at May 2018 was low.
Mr Jones reported that between April and June 2018 he provided the Applicant “(internet sex) offender treatment in the areas of thinking errors (denial, minimisation, realisation); understanding life stressors and the impact upon his functioning resulting past offender behaviour; understanding his cycles of perception; and his thinking and behaviour that resulted in his offending. Additionally specific areas associated with the underlying thought processes and overcoming his moral barriers redressed as part of his treatment.”
Having regard to previous treatment and assessment by other practitioners, Mr Jones said “I am of the opinion [the Applicant] has successfully completed all aspects of treatment appropriate to his offending.”

In oral evidence, Mr Jones said that he consulted the Applicant during the period April to June 2018 whilst he was in prison. The Applicant’s preparedness to acknowledge the offending early was significant. They could then openly discuss treatment and behaviours.
Dr Jones described the treatment as significant and challenging being “face-to-face” and “one-on-one”. The Applicant’s homework required him to provide a written narrative with respect to those issues being addressed. When asked to what extent he believed he had been successful in treating the Applicant, Mr Jones said he was confident that through the treatment he had achieved good success in reducing recidivism. He was able to highlight the stressors which were impacting upon the Applicant. The Applicant had a much clearer understanding of the triggers and that to not previously address the triggers underlined poor emotional functioning.
Mr Jones was also asked what would be the consequence of removing the supports that the Applicant now has. Mr Jones opined that the Applicant would be more vulnerable to depression and anxiety, but he did not know if he would take the next step and engage in his earlier offending.
In cross-examination, Mr Jones said he was not engaged to assess the risk of reoffending and was not expressing an opinion to the Tribunal in that respect. Insofar as he said in his report that the Applicant “successfully completed all aspects of treatment appropriate to his offending” he acknowledged he was not saying the Applicant would not experience urges in the future. However, the Applicant is aware of the triggers. Those triggers are not sexual. They are work stress, interpersonal relationships, feeling isolated, being separated from his support network and poor psychological health. He said the Applicant did not have a specific attraction to child pornography. It was relationships and emotional events which led to his offending. Mr Jones also confirmed the Applicant had the support of NH and the church.
Mr Sheehan
Mr Sheehan is a forensic psychologist and holds a master’s degree in clinical psychology. He provided a report dated 4 May 2018 and gave oral before the Tribunal. The purpose of that report was to address the risk of reoffending.
Mr Sheehan specialised in the treatment and assessment of sex offenders and worked for the New South Wales Justice Department between 1999 and 2014. Thereafter, he was “a Crown expert in that State application under the Crimes (High Risk Offender) Act 2006” and was appointed as an independent expert in high risk offender matters. He provided treatment to sex offenders in his private practice.
Mr Sheehan confirmed the general history and circumstances surrounding the Applicant’s offending and treatment. He noted that the Applicant’s parents have been involved with his children. His parents were “distraught and disappointed” by the Applicant’s offending but remain supportive.
Mr Sheehan also noted that the Applicant works as a wages clerk whilst in custody and confirmed that his career as a pastor is no longer available to him. He confirmed the various supports available to him and that the Applicant speaks to his wife twice a day and she visits weekly to fortnightly with the children. He confirmed that the Applicant and his wife and children are deeply distressed by the prospect of separation. Mr Sheehan noted that the Applicant never broadened into other areas of deviancy and never increased the frequency or intensity of his behaviour.
Mr Sheehan noted that the majority of the video files depicting girls involved in penetrative sexual activity but, of the 471 images and video files, the majority rated as category 1 on the CETS scale. He noted that seven items were rated as category 5 on that scale. He referred to a compulsive quality to the Applicant’s offending and that he minimised his perception of wrongdoing by wrongly reasoning the offences depicted had already occurred and were not leading to the suffering of children. He notes that the Applicant has since challenged this view through his treatment.
Mr Sheehan noted the Applicant insisted his interest was in girls aged 14 years and above and that he would discard other RAM images. He opined that, in respect of the purported interest in girls of that age and above, the Applicant’s account, in his opinion, was not convincing and he “would regard this is largely a shame based defence mechanism where he struggles to accept this dimension of his behaviour because it is fundamentally at odds with self-concept. However, I note that this should not be regarded as a risk factor.” In evidence, Mr Sheehan said that this is not an uncommon state of mind in those who commit like offences and this did not impact adversely on his opinion.
Mr Sheehan noted that the Applicant had avoided the use of any pornography during the 12 months before admission into custody and no longer feels compelled to look at child abuse material. He also confirmed that it was unlikely that the Applicant will be offered any treatment in custody because he was a low risk offender and treatment was directed to moderate to high risk offenders.
Mr Sheehan had before him various documents including the sentencing remarks of the Learned Sentencing Judge, reports of Dr Emma Collins, and the pre-sentence report which included a psychological report of Mr Flavio Dibona (which was not before the Tribunal).
Mr Sheehan said “[the Applicant] has acknowledged his behaviour in a way that has allowed for him to cease offending, explore the background factors and develop a relapse prevention plan. [The Applicant] has never supported attitudes that support or condone sexual violence but did support views that minimised his perception of culpability in viewing child abuse material. He would appear to have challenged these distorted beliefs in the course of treatment … He has had very specific problems with stress/coping, exhibiting pathological coping behaviours through sexual deviancy.”
Further, Mr Sheehan noted that the Applicant’s deviant interests remained strictly contained to one form of activity, namely secretive viewing of online images, which he said was suggestive of a different type of compulsive process than the usual paraphilia presentation. He said he has responded well to treatment and that he has the characteristics of one who would participate positively in supervision.
Under heading OVERALL RISK Mr Sheehan opined that the Applicant had few of the risk factors for sexual reoffending. He said that [the Applicant] had related to his deviant interest “as well as the predisposing factors related to perfectionism, poor appraisal of his emotions and failure to seek help when needed (communication deficits). [The Applicant] has sought to address his residual risk factors through treatment and disclosed his offending to his family and social group …” Mr Sheehan concurred with the opinion of Dr Collins, namely that the Applicant was a low risk of sexual recidivism.
Further, he opined that the Applicant’s psychological well-being will suffer from being effectively exiled from the life he has known since childhood. This, he said, was due to the distress that would occur to anyone in such an extraordinary and destabilising situation. He reported that the Applicant “is assessed as a low risk to the community”. He went on to report that “Visa cancellation would be injurious to [the Applicant’s] emotional state and that of his family members in Australia, creating traumatic disconnection from family and familiarity, with no realistic prospect of maintaining relationships. [The Applicant] has a greater prospect of living a productive life in contributing positively to the community in Australia than he does in Malaysia.”
Mr Sheehan in evidence confirmed the contents of his report and his opinion. He said that a positive family environment can reduce the risk of reoffending. He noted the Applicant did not deny or minimise his culpability. In respect of the risk of reoffending, if the Applicant is not permitted to return to the community, Mr Sheehan said it would add to lifestyle instability and isolation.
In cross-examination, Mr Sheehan said that he spent two hours with the Applicant. Insofar as the Applicant maintained he had an interest in female demographic of the ages 14 to 18 years, he said the Applicant’s account was not convincing nonetheless he did not engage in denial of offending. He accepted responsibility and undertook self-funded treatment and, on balance, he did not attach much weight to that reported demographic interest. Mr Sheehan referred to a noticeable shift in attitude and the treatment challenges he addressed. He referred to the empathy and understanding of the damaging nature of his offending. He said that arguably the Applicant was more comfortable presenting offending relating to the 14 – 18 year old female demographic which is quite common with offenders committing this type of offence. He said the Applicant was so ashamed and his conduct was so contrary to other values, that he was unable to discuss this openly. He said that over the last 20 years professionals have come to understand this common presentation does not have a bearing on the question of the risk of reoffending.
In cross-examination, Mr Sheehan was asked what might trigger his reoffending again. He gave examples including lifestyle issues, lack of communication, lack of coping with fastidious style of life, lack of communication with love ones and, the obligation to solve others problems as a pastor. He said that particularly dealing with issues as a pastor was a one-dimensional approach in which the Applicant ceased caring for himself. He said the Applicant has been punished in a memorable way and one learns from those experiences. These risk/triggers, he said, are a cause for concern, but they do not mean he will then go on to offend.
In answer to questions from the Tribunal, Mr Sheehan said the Applicant’s work as a pastor played an unhelpful role. It created emotional distance and, although he was still engaging with others, he was not engaging with himself. He said that the Applicant will still have spiritual involvement with the church but will have to renegotiate the nature of that involvement. He said that being a member of the congregation is a better role for him. He also opined that offending of this type is usually sexually motivated and it is common when an offender is asked about sexual arousal they might feel awful and ashamed and reject the suggestion of sexual motivation.
Mr Sheehan maintained the Applicant remained a low risk of reoffending.
The Applicant’s counsel submitted that but for the offending, the Applicant was a fine and upstanding member of the community. The offending was of one type and, as Mr Sheehan reported at paragraph 45 of his report, the offending was strictly contained to one form of activity and it did not manifest into any other type of inappropriate sexual behaviour. Once discovered, the Applicant took responsibility for his offending pleaded guilty, faced his colleagues, and sought and paid for his own professional help, including whilst in the prison system.
The Applicant’s wife has stood by him in circumstances where it would have been much easier to walk away. Few could blame her if she did. But in addition to his wife, the Applicant had enormous support from the church community and his peer groups. There were many statements before the Tribunal that were unchallenged that demonstrated an honest and sincere belief in the Applicant. Significantly, he can continue in the church community and has the support of the church leadership group.
It was submitted that the nature of this offending was such that it could be committed anywhere in the world and by the non-revocation of his visa the mischief is not addressed. However, it is submitted that the Tribunal can conclude that the Applicant wanted to deal with his offending, has done everything possible he can to deal with it, has a massive network of support, and to send him back to Malaysia is not going to reduce the recidivist behaviour, but will potentially increase it.
The Applicant referred to the reports of Dr Collins, together with Mr Jones and Mr Sheehan, and their oral evidence. The Tribunal was urged to find that the Applicant was a low risk of reoffending and had demonstrated a genuine desire to reform. As Mr Jones opined, the Applicant had done everything he can and completed all aspects of treatment appropriate for his offending.
The Applicant referred to the extraordinary supports provided by family and friends referred to in the various statements and confirmed by the oral evidence from members of the church. It was submitted the Tribunal can be confident that the Applicant would confide in others should he ever feel the urge to reoffend. This was an important factor in reducing the risk of reoffending which was not available to the Applicant previously.
It was submitted that to remove the support base that he now has will be an event that may increase the risk of reoffending. Counsel reminded the Tribunal that Mr Sheehan said that to remove the support base may have a consequence of increasing the risk. However, with those supports in place the risk of reoffending was low.
The Respondent submitted that in considering Primary Consideration A, the Tribunal should pay close attention to the learned sentencing Judge’s remarks. Counsel referred to Her Honour’s comment “by possessing child abuse material, one adds to the demand for such material and the creation of victims. These are not victimless crimes … There are real children being exploited for the creation of this material, and by possessing or accessing the material one feeds the demand for such material, which in turn encourages the creation of young child victims.”[16] In this matter, child abuse material contributed to 450 real child victims, some of whom were identified as living in Australia.
[16] Ibid, page 60.
Counsel referred to Her Honour’s remarks about the court’s experience in dealing, unfortunately, with many of these cases and the Crown’s submission that they were of increasing prevalence. Her Honour also referred to the search terms which included “pre-teen hard-core porn.”[17]
[17] Ibid, page 67.
The Respondent relied on the Statement of Facts, Issues and Contentions (“SOFICs”) filed with the Tribunal and further submitted that the Applicant is of a moderate to high risk of reoffending as the Applicant failed to resist urges over the offending period; and the Learned Sentencing Judge failed to accept that the Applicant was a low risk of reoffending. In relation to risk, the Learned Sentencing Judge said:
… The net result is that insofar as the offender’s insight is relied upon to substantiate a low risk of re-offending, the Court would have to treat that aspect with some caution. The offender clearly has further work to do in his rehabilitation. He does not resist that conclusion. He acknowledges that he has further rehabilitation to undergo and I am of the view that he would need to continue with that rehabilitation before the Court could so confidently find that there is a low risk of re-offending.
Conclusion: Primary Consideration A – Protection of the Australian community
The Applicant does not dispute that the offending was serious. That is a concession properly made. The offending is abhorrent. The Tribunal notes that the Learned Sentencing Judge accepted that the offences were very grave, albeit not the worst case seen by the court. Her Honour said “they are nonetheless, serious examples of those sorts of offences …”[18] Her Honour referred to the gravity of the category five material involving children aged as young as five years.[19] She described the images as “disturbing not just because they involve children but also because the material involved sexual posing, penetrative sexual activity and children who are bound hogtied, one with breasts roped or wired.” Her Honour described the material as images of gross and vile exploitation of young children.
[18] Ibid, page 68.
[19] Ibid, pages 63 – 64.
The Tribunal notes, as referred to in paragraph 131 above, that a very small portion of the pornographic material was category CETS 5 and the majority was category CETS 1. That fact does not detract from the serious nature of this offending.
The Applicant’s submission that this is an offence that could be committed anywhere in the world does not mitigate the fact that this was an offence committed in Australia, being a sexual crime against children who were vulnerable members of the community. Further, the Applicant committed the offences over a period of time, albeit not escalating.
However, the Applicant was an impressive witness as were those other witnesses who appeared before the Tribunal. The Tribunal accepts that the Applicant went through cycles of collect, repent and delete, and that at about the time of his arrest, he had just completed a cycle and believed all pornographic material had been deleted. The Tribunal also accepts that during these cycles of offending the Applicant felt trapped and unable to approach those in the church and others, for fear of their obligation to report. That obligation was confirmed by AA in his evidence. The Tribunal also accepts that the Applicant felt unable to inform his wife as he was ashamed of his conduct.
Following his arrest, the Applicant said, and the Tribunal accepts, that he felt relieved and was now in a position to deal with his behaviour. He confessed his crime to his church and congregation, and clearly assumed responsibility for what he had done. He engaged professional help and diligently continued with that professional help from the time of his arrest and whilst he remained in custody serving his sentence of imprisonment. It is noteworthy that he employed Mr Jones so that he could complete his treatment regime that was not made available to him in custody because he was assessed as a low risk offender.
The Applicant, despite losing his paid employment as a pastor, has maintained a very close loving and supportive relationship with the ministers of this church and its congregation, who have demonstrated an extraordinary level of support for him. The Tribunal accepts this support will continue upon his release should he return to the community.
The expert evidence received by the Tribunal is consistent in opining that the Applicant is now to be regarded as a low risk of offending. Albeit the Learned Sentencing Judge was not able to reach such a conclusion because the Applicant was still to undergo further rehabilitation, that rehabilitation has occurred and the Tribunal accepts the opinions expressed that he is a low risk of reoffending.
It is also important to note that the Applicant’s wife has stood by him throughout his criminal prosecution, incarceration, and now immigration detention. NH was a very impressive witness. The Applicant’s criminal offending has caused enormous stress and distress to her. The impact upon her and her family, and in particular their young children, was palpable. NH on occasions became very distressed during the course of her evidence, but the Tribunal accepts that she now, and in the future, will continue to support the Applicant. The Tribunal also accepts that she is determined to continue with her marriage.
The Applicant’s efforts to minimise the risk of reoffending, engaging professionals, and the paying for his own professional help, is a credit to him. The extraordinary level of support that he has will contribute substantially to avoiding similar criminal offending. In considering the risk, the Tribunal has taken into account the nature and harm to children should the Applicant re-engage in similar serious conduct. That harm would give rise to serious physical and psychological injury. However, the Tribunal accepts that the likelihood of reoffending, taking into account all of the available evidence, is correctly described as low. Of particular importance is that now, unlike at the time of his offending, there are those very close to the Applicant to whom he can go for support should he feel the urge to reoffend. He understands and was able to articulate the triggers that gave rise to his offending and those changes to his life that have been put in place to alleviate those triggers.

The Applicant and his wife both confirmed that computers are now kept in an open living space in their home. Internet blocks with respect to pornographic material have been placed on his phone. Those blocks will also be placed on computers. He and his wife will engage in further counselling should he be released into the community. That counselling will be directed to ensuring he does not reoffend. His friends/ministers have also confirmed that they will meet regularly with the Applicant and his wife for the same purpose.
When balancing the seriousness of the offence and the risk of reoffending, in the unique circumstances of this matter, the Tribunal has decided that medium weight in favour of non-revocation is to be given to this Primary Consideration. That medium weight is given particularly because of the extraordinary efforts that the Applicant, his wife, leaders of this church and the congregation have taken to support and rehabilitate the Applicant and minimise the risk of reoffending.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is the biological father of two children, namely a son, JH, aged 10 years, and a daughter, RH, aged 13 years. He enjoyed a close and loving parental relationship with each child prior to his imprisonment.
The Applicant said in evidence, and the Tribunal accepts that from the time of his imprisonment and whilst in immigration detention, he has continued to maintain a close and loving relationship with both children. He speaks to his wife by telephone two times a day and sees his wife and children approximately once a week or, at the very least, once a fortnight. He plays games with his children and the family would, when possible, eat meals together. The Applicant and his wife have done everything they can to ensure that his continued relationship with his children is maintained.
The Applicant described the different games he would play with his children. In respect of his son, they play computer games such as Minecraft which involves building castles and houses. They speak regularly on Skype. His son is learning martial arts and will demonstrate to the Applicant his various moves. His daughter he described as being similar to himself, both in personality and physicality. He described her as a smart young girl. They enjoy talking to each other. She has just started high school. She is interested in vocabulary and they play word games.
The Applicant and his wife both confirmed that he continues to play a role as a parent. He referred to some disciplinary issues involving his son, in particular since he has been imprisoned and in immigration detention. The Applicant misses the opportunity to play a day-to-day role in their lives but does as much as his current position permits. When the family visit Villawood, those visits last for one to two and a half hours during which time they play games and have meals together.
The Applicant and his wife both gave evidence that the children will be devastated should he not be permitted to return to the community and their home. The Tribunal accepts that evidence.
Mr Jones, in his report dated 13 June 2018[20] under heading Other Information, referred to occasions during his assessment in which NH became emotionally distressed and broke down crying when forced to consider the possibility that her husband may be deported. Both children immediately comforted NH, cuddling her, stroking her face, wiping the tears from her eye, and patting her on the back. The children were very much in tune with their mother’s emotional functioning. Both children are reasonably adjusted to their father’s absence. He reported the son was upset and his behaviour was unruly at school following the Applicant’s arrest and his academic standard has dropped.
[20] Ibid, pages 368 – 377.
Mr Jones described NH as being in conflict about what she would do if the Applicant was forced to return to Malaysia, and again became distressed. Her evidence about that conflict will be relevant later in this decision. In his report, Mr Jones refers to the Spence Children’s Anxiety Scale assessment that he undertook with respect to both children. As for the daughter, she is not experiencing clinically elevated levels of anxiety which was thought to be an unusual result given the current circumstances of separation from her father. However, her regular visits and interaction with the father, in addition to the mother’s reassurance that he will return home and the family will be reunited, gives explanation to her apparent resilience in dealing with the Applicant’s imprisonment. She believes the separation to be temporary. As for the son, he is also not experiencing clinically elevated levels of anxiety, which he opined was similarly due to the temporarily stable life.
In evidence Mr Jones explained that should the Applicant be returned to Malaysia, that will undermine the trust that each child has placed in NH, namely that the Applicant will return to the family home, and has the potential to have a detrimental impact on each child’s relationship with NH. He also explained that NH is playing the role of two parents, namely both as a disciplinarian and the nurturer, and this has the potential for the relationship between the children and the mother to be compromised, and the potential for a negative impact on each child.
The Tribunal accepts that the Applicant has played an important parental role in respect of both his daughter and son, and following his incarceration he has continued to play a parental role as much as he has been able in the circumstances. The Tribunal also accepts that, if permitted to return to the community, he will play a parent role to each child for the duration of their respective minorities.
It is because of the extraordinary efforts of NH in caring for each child to date and ensuring the maintaining of contact with their father that neither child has exhibited elevated levels of anxiety. Mr Jones in his report said that NH had provided a very supportive environment, but also one based on the false premise of the expectation that the Applicant will return to the home. He opined “however the reality the family may be separated will most definitely result in the destruction in trust the children have for their mother and the loss of contact with their father.” The Applicant’s deportation will likely have a negative impact upon NH’s relationship with each child and each child’s bond with their father. He said that it is accepted that children raised without fathers increases the risk of a variety of behaviours, including alcohol and substance abuse, engaging in risky sexual behaviours, increased risk of psychological/psychiatric conditions e.g. depression; increased risk of suicide; an increased risk of engaging in delinquent/criminal behaviours.
He further opined that the sudden and sustained cessation of contact with their father will likely result in each child developing a variety of emotional and behavioural dysfunctions. This will also likely effect NH’s emotional and psychological functioning and as the primary parental caregiver this will have a direct and significant impact upon each child.
Mr Jones reported “The effects of separation of a child from a parent have long been known to increase the likelihood of adverse effects on a child’s psychological well-being and the development of a variety of mental conditions. Indeed, the sudden and sustained loss of contact with a parent has the potential to cause great, if not permanent, harm to a child’s ability to maintain and develop secure relationships.”
Mr Jones opined that it will be in the best interests of NH and each child for the Applicant to be allowed to remain in Australia.
The Respondent concedes that this Primary Consideration B weighs in favour of revoking the mandatory visa cancellation, however that it is heavily outweighed by Primary Considerations A and C.
Conclusion: Primary Consideration B – The best interests of minor children in Australia
The Tribunal accepts that the Applicant’s daughter and son had always enjoyed a close and loving relationship with him and that relationship has continued whilst he has been imprisoned and in immigration detention. This has been brought about by the efforts of NH in her continued parental role of the children and ensuring that they have as much contact with their father as is possible.
The fact that each child does not exhibit, at the moment, any serious or adverse signs having been separated from their father, is much to do with the belief that he will return to the matrimonial home. The Applicant and NH, together with the other witnesses who have given evidence before the Tribunal, express the opinion that should the Applicant be deported to Malaysia, that separation will have a devastating effect upon each child.
The Tribunal has considered the best interests of each child separately, but there is nothing to distinguish any difference in their respective interests. The Tribunal accepts the opinion of Mr Jones, namely that to separate the Applicant from the children will likely result in significant deterioration in the emotional and psychological functioning of each child and is likely to have a serious impact upon each child’s relationship with NH.
Albeit members of the church friends and family will provide support to NH where possible, it is not apparent that there is any other person who has in the past, or will in future, fulfil a parenting role in relation to either child. Having regard to the whole of the evidence, the Tribunal accepts the opinion of Mr Jones. It is in the best interests of both minor children that the mandatory visa cancellation be revoked. This Primary Consideration weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration C: Expectations of the Australian community
Paragraph 13.3(1) of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraphs 6.3 of the Direction provides:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Evidence relevant to this Primary Consideration is referred to above and the Tribunal will not repeat it. In addition, NH gave detailed evidence about the financial and personal difficulties she has endured whilst the Applicant has been imprisoned and in immigration detention. She is suffering financial difficulty as the only income earner. Members of the church and the Applicant’s mother have made monetary contributions to her to assist in the ongoing care of her family. The Applicant’s mother has continued in employment past her anticipated retirement date for the purpose of providing financial assistance to NH and the children. This support and assistance will not continue indefinitely.
NH said in her evidence that she cannot contemplate life without the Applicant and has considered moving to Malaysia should he be deported. NH became very distressed when giving this evidence. She was concerned whether financially she could afford the move to Malaysia. She was concerned about the level of education that may be available to her children. The children do not speak the Malaysian language Bahasa (Malay). Public schools do not teach in the English language and the children would have to attend a private school to be taught in English. She is concerned that the cost will be prohibitive. She was also concerned about use of corporal punishment that still occurs in Malaysian schools. This evidence is not challenged and the Tribunal accepts those concerns were legitimate and contributing to NH’s stress and distress. She said that she did not think she could cope anymore.
The Tribunals approach in considering this Primary Consideration was addressed in the recent decision of FYBR v Minister for Home Affairs (“FYBR”).[21] This matter involved a visa refusal, but its principles apply equally to s 501CA mandatory visa cancellations where paragraph 13.3 of the Direction is worded in identical terms to paragraph 11.3, which is in respect of s 501(1) visa refusals. Charlesworth J at [67] said “To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied … It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. Her Honour continued “… I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectations of the executive government of the day in respect of its subject matter.”
[21] [2019] FCAFC 185.
Accordingly, the government has deemed what is the community expectation. As Charlesworth J explained, there are two expectations, the first of which, Her Honour observed is found in the first sentence of paragraph 11.3 (and paragraph 13.3 in the case of visa cancellation matters), namely “the Australian community expects noncitizens to obey Australian laws while in Australia.”
Charlesworth J at [75] said “… cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa application refused.” Hence, it is the expectation of the Australian community that the Applicant obey Australian laws and that expectation has not been met because, by his offending and sentence of imprisonment, he cannot pass the character test pursuant to s 501(6)(a) of the Act. It is not for the Tribunal to make its own assessment of community expectations. The nature of the character test is such that the deemed expectation will arise in most cases as it does here.
In referring to the second expectation Charlesworth J referred to the second and third sentences of paragraph 11.3, namely:
Where a noncitizen has breached, or where there is an unacceptable risk that they will breach this trust or where the noncitizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such persons. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
At [76] Her Honour explained “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 in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than the government’s assessment of the community expectations is “generally” to be afforded greater weight than the “other consideration” … The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors.” Her Honour then said “There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.”
Hence, the weight to be given to this primary consideration having regard to the Principles referred to, in particular, in paragraphs 6.3(5) and 6.3(7) are to be determined in the operation of the discretion of the Tribunal.
Accordingly, paragraph 13.3 of the Direction referred to above provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant did not obey Australian laws and does not pass character test pursuant to s 501(6)(a) of the Act. This must weigh against the revocation of the Applicant’s visa cancellation. It is for the Tribunal to then determine what weight is to be given to this Primary Consideration having regard to the second and third sentences of paragraph 13.3 and the Principles in particular at paragraph 6.3(5) and (7) of the Direction that inform the Tribunal.
The Applicant submits that this Primary Consideration may be found in favour of the Applicant, or at least that no or limited weight be given to this Primary Consideration in the operation of the Tribunal’s discretion, and leaves open the discretion to revoke the Original Decision for other reasons. Further, the Applicant submits that the Direction did not contemplate internet offending of the type committed by the Applicant and that the approach normally undertaken by the Tribunal in dealing with offences against women or children who are members of the Australian community do not apply in the circumstances of the Applicant’s offending.

The Respondent referred to their SOFICs at paragraph 36, which states that the starting point is that the Australian community expects the Applicant’s visa will be cancelled. Counsel submitted that Stewart J in FYBR took a narrower view to Charlesworth J when he said at [101] “If you break the law that will be held against you, the more serious breach the more it will be held against you, and it may even be decisive.” Counsel submitted that there may be crimes in relation to which less weight may be given, such as crimes committed in self-defence, but that is not the case in this matter. Counsel urged the Tribunal to have regard to the nature of the offence, sustained nature of the offence, content of the material, the application of the search terms knowingly used by the Applicant to target the material, the category of the offending and category of the serious social evil all of which weighed heavily in the expectation of the Australian community that the visa cancellation not be revoked. Counsel also referred to the sentencing remarks to which the Tribunal has already referred.
The Respondent submitted that, in light of the nature, seriousness and impact of the Applicant’s criminal offending, together with the risk of his reoffending, this Primary Consideration weighs heavily against revoking the Original Decision.
Conclusion: Primary Consideration C– Expectations of the Australian community
Insofar as the Applicant submits that internet offending of this type does not fall within the type of offending contemplated in the Direction, the Tribunal rejects that submission. As can be seen in paragraph 13.3(1) of the Direction, the community expects the Applicant to obey Australian laws while in Australia. The Applicant breached Australian laws and thereby breached the trust of the Australian community. The fact that the offending was computer internet based and involved children is not the point. Indeed, Australian children were depicted in the pornographic material.
Paragraph 6.3(3) of the Direction is directed particularly to offences against women or children and extends to those children depicted in the pornography material. Paragraph 13.3 of the Direction provides that the Tribunal should have regard to a non–citizen’s conviction for offences in Australia or elsewhere. The community expects the non-citizen to be law abiding and not restrained by geographical restraints. The subject offending was serious and the Applicant does not pass the character test in s 501(6) of the Act. This it is deemed, must of itself weigh against the revocation of the Applicant’s visa cancellation. The question now for the Tribunal is what weight should be given to this Primary Consideration in the operation of the Tribunal’s discretion.
The Tribunal refers to the decision above in relation to Primary Consideration A as it relates to the Applicant’s risk of reoffending. It can never be said that there is no risk of reoffending. However, in the circumstances of this matter, the risk of reoffending is low. The Applicant’s immediate response after being charged with the offences, including informing the church members and the engagement of psychologists including paying for Mr Jones to complete the treatment services he was unable to receive through New South Wales Corrective Services, demonstrates his acceptance of responsibility and determination not to reoffend.
Paragraph 6.3(5) of the Direction provides that Australia may afford a higher level of tolerance of criminal conduct in relation to a non-citizen who has lived in the Australian community for most of his or her life or from a very young age. The Applicant has resided in Australia from the age of approximately eight years, is now aged approximately 46 years of age, and he is the type of person to whom that higher degree of tolerance might properly be extended.
Paragraph 6.3(7) of the Direction permits the Tribunal to have regard to the length of time the Applicant has been making a positive contribution to the Australian community and the consequences of his visa cancellation on minor children and other immediate family members should this application be refused.
The Tribunal agrees with the Applicant’s submission that, putting aside the relevant offending, the Applicant would otherwise be described as an exemplary member of the community. He has made an extraordinary contribution to his church, its congregation, and the Christian community in general, including its work involving the missionary service. As Minister AC said in the oral evidence that the Applicant’s work as a pastor has touched many hundreds, if not thousands, of people both within and outside of Australia. The Tribunal accepts that evidence.
The consequences of the Applicant’s visa cancellation will have a significant impact on his children, wife and parents. His wife was plainly in distress when detailing the financial and personal difficulties she has experienced in maintaining the home whilst the Applicant has been imprisoned and in immigration detention. She has relied to some degree on the generosity of others within the church community who have gifted money when possible to assist. The Applicant’s mother has continued to work past her intended retirement date to also provide financial support in the absence of any financial contribution from the Applicant. This generosity and support NH rightly acknowledges cannot continue indefinitely.
In the circumstances of this matter, the Tribunal is satisfied that this is not a matter where no weight at all should be given to community expectations as it relates to this Primary Consideration. However, the weight that the Tribunal would otherwise give to this Primary Consideration is substantially reduced when having regard to those matters that operate upon the Tribunal discretion.
In all the circumstances, the Tribunal considers it appropriate to afford the expectations of the Australian community moderate weight in favour of the visa cancellation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence or argument was advanced in relation to international non-refoulement obligations such that it is of relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i) Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant has lived in Australia for 38 years, having arrived in 1981 at the age of 8 years. The Applicant completed his schooling and tertiary education in Australia and has positively contributed to the Australian community through his brief period of employment in the IT industry and his years of dedicated service as a pastor to the church and various volunteer positions.
The Applicant has strong and enduring ties with his family and the community, as demonstrated by the witness statements and evidence to which the Tribunal has referred above. Although he has other relatives still living in Malaysia, such as cousins, his parents, wife and children all reside in Australia.
The Applicant said that, whilst in prison, his family would come to see him once a fortnight. On the alternative fortnight, friends would visit. The Applicant provided a long list of friends who came to visit him both in prison and in immigration detention, many of whom were from the church.
Since being in immigration detention, his family and in particular his wife and children, visited him every weekend. They have a meal together and he plays games with his children. He said his children know that he was imprisoned because he had files on his computer that he should not have had.
The Respondent concedes that this Other Consideration weighs in favour of the Applicant, however that it is heavily outweighed by Primary Considerations A and C.
Conclusion: Other Consideration 2
The Applicant has made an extraordinary contribution to his church and congregation. Albeit he will no longer enjoy a paid position as a pastor nor continue his training for the ministry, this does not mean that his ties formed over the years of pastoral service will end. The Tribunal accepts that he will continue to be a member of the church community and will continue to provide a valued contribution to that community. The Tribunal accepts that it is his intention to renew his career in the IT industry and that should he do so the Tribunal infers he will make a valuable contribution to that profession, or alternatively such other employment that he will pursue in the future. When arrested, he ceased his work as a pastor and obtained employment until he was imprisoned. The Tribunal accepts that he will actively seek employment should he be released back into the Australian community.
The Applicant’s wife, children and parents reside in Australia and that familial relationship also represents a strong and enduring tie. The Applicant has provided a parenting role for his children and it is his intention to do so in the future. He has the love and support of his wife and they have a joint determination to continue their marriage and seek appropriate support and counselling.
Insofar as the Tribunal has considered the Applicants ties with respect to his children, the Tribunal has had regard to those factors that the Tribunal has not otherwise considered in assessing Primary Consideration B.
The Tribunal gives significant weight to this Other Consideration.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence or argument was advanced in relation to impact on victims such that it is of relevance in determining the application, however the Respondent contends that, to the extent that Australian children were victims of the abuse which gave rise to the images accessed and viewed by the Applicant, the Applicant’s offending has caused significant and substantial harm to members of the Australian community.
However, in the absence of any specific evidence about those victims and the very general nature of the submission, the Tribunal gives neutral weight to this Other Consideration.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is now 46 years of age. He has no family in Malaysia who would be able to support him and he would have difficulty finding work as there are few job opportunities and he would be discriminated against due to his convictions. Further, the Applicant can only speak English.
The Applicant suffers from headaches, asthma, high blood pressure and gout.
The Tribunal has had regard to the DFAT Country Information Report (Malaysia) provided by the Respondent. That report concluded that:
·English is widely used in Malaysia; and
·Health care services in Malaysia are of a relatively high standard.
The Tribunal heard evidence that the Applicant does not speak fluent Malay.
Conclusion: Other Consideration 5
The Applicant will initially have difficulty finding employment in Malaysia. Should he return to the IT industry, it must be noted that he has not worked in that profession for many years, which will add difficulty in obtaining employment in that profession.
Albeit English is widely spoken in Malaysia, his inability to speak fluent Malay will likely to contribute, to some extent, in his ability to integrate into the community.
In respect of his ongoing health care issues, the Tribunal accepts that he will be able to access medical treatment to an appropriate standard and that his health will not be adversely affected by residing in Malaysia.
The Tribunal finds that slight weight should be given to this Other Consideration in favour of the Applicant.
There are no more Other Considerations that arise on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (i) the Applicant must be found to pass the character test, or (ii) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” pursuant to s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A is to be given medium weight in favour of non-revocation;
(b)Primary Consideration B weighs heavily in favour of revocation;
(c)Primary Consideration C weighs moderately in favour of non-revocation; and
(d)The combined weight of Primary Consideration B and the Other Considerations is such that they outweigh Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they do weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa be revoked.

I certify that the preceding 236 (two hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.................[sgd].......................................................
Associate
Dated: 2 December 2019

Date(s) of hearing: 7 and 8 November 2019

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Mr D J Prince - Kinslor Prince Lawyers

Solicitors for the Respondent: Mr N Cuthbert- Clayton Utz

[2019] AATA 5162

2 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

CETS Scale Category	Count 2 material	Count 3 material
1 – Sexually suggestive posing with no sexual activity	225 images 32 videos	8 videos
2 – Non-penetrative sexual activity between adults and children	59 images 38 videos	6 videos
3 – Non-penetrative sexual activity between adults and children	5 images 25 videos	4 videos
4 – Penetrative sexual activity between children or adults and children	11 images 69 videos	37 videos
5 – Sadism, humiliation or bestiality	1 image 6 videos	2 videos
6 – Animated or virtual depictions of children engaged in sexual poses or activity	0	0
Total number of files	471	57

Date(s) of hearing:	7 and 8 November 2019
Counsel for the Applicant:	Mr L Karp
Solicitors for the Applicant:	Mr D J Prince - Kinslor Prince Lawyers
Solicitors for the Respondent:	Mr N Cuthbert- Clayton Utz