GFXW and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1413
•31 July 2025
GFXW and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1413 (31 July 2025)
Applicant/s: GFXW
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3454
Tribunal:Senior Member N Manetta
Place:Adelaide
Date:31 July 2025
Date of Written Reasons: 13 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision that the Applicant’s visa not be cancelled under section 501(2) of the Migration Act 1958 (Cth).
The Tribunal will provide the parties with a statement of its reasons for this decision within a reasonable time hereof.
..........................[Sgd]..............................................
Senior Member N Manetta
Catchwords
MIGRATION – cancellation of visa – section 501(2) of Migration Act – applicant a citizen of UK – applicant does not pass character test – applicant guilty of sexual offences against a minor 24 years ago – no offending since then – risk of recidivism low – applicant now 66 years of age - committed marital relationship – decision set aside and substituted
Legislation
Migration Act, 1958 (Cth)
Cases
DWHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 336
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
These are my written reasons for the decision I published on 31 July 2025.
This is an application by ‘GFXW’, a person whose name has been anonymised under a confidentiality direction made by the Tribunal and to whom I shall refer as the ‘applicant’. The applicant seeks a review of the decision of the respondent’s delegate dated 24 April 2025. By this decision, the delegate decided to cancel the applicant’s visa[1] under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’). This section permits the respondent to cancel a visa where the respondent reasonably suspects that the visa-holder does not pass the so-called ‘character test’ (as elaborated in subsection (6)) and the visa-holder does not satisfy the Minister that he or she in fact passes the test.
[1] A Class BF Transitional (Permanent) visa giving the applicant the right to reside in Australia on an ongoing basis.
Section 501(2) has two aspects to it. First, there is the question of the applicant not passing the character test (the jurisdictional threshold); and secondly, there is the question of whether the power to cancel the visa should be exercised by the delegate where the jurisdictional threshold for the exercise of the power exists.
So far as the jurisdictional threshold is concerned, the delegate decided that the applicant did not satisfy the ‘character test’ on account of the applicant’s conviction of two counts of sexual assault upon his stepdaughter, then a minor, in 2000 and 2001, respectively. The delegate referred to s 501(6)(e)(i) of the Act in this regard.[2] This section provides that a person does not pass the character test where he or she has been convicted of a sexually based offence involving a child. The delegate proceeded, therefore, on the basis that he had jurisdiction to cancel the applicant’s visa.
[2] See Hearing Book (‘HB’), 81 [5].
It was agreed between the parties that the delegate was correct in his or her answer to the jurisdictional threshold question. I do note, however, that s 501(6)(e)(i) was apparently inserted in the Act as a result of an amendment in 2014, and the offending precedes this amendment by a considerable period of time. I was not addressed by the parties on the question of whether section 501(2), on a proper construction, permits the respondent to cancel the visa of a person who committed sexual offences against a child before the introduction of s 501(6)(e)(i). Given my conclusion in this case, I need not express any opinion on that question; and I shall assume for the purposes of my review that s 501(2) did permit the delegate, and does in turn permit me, to act in respect of the applicant’s past sexual offending.
On this assumption, the applicant clearly did not pass the character test, as defined, and the delegate was clearly correct in reaching his or her conclusion on the threshold question of jurisdiction.
The second question was whether the respondent ought to exercise the power to cancel the applicant’s visa. In this regard, the respondent was obliged to apply any direction issued under s 499 of the Act. The respondent applied so-called ‘Direction no. 110’ (‘the Direction’)[3] in this regard. Having evaluated and weighed the various considerations required to be addressed under the Direction, the respondent’s delegate decided that they favoured on balance an exercise of the statutory power under section 501(2) and the delegate proceeded to cancel the applicant’s visa.[4]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
[4] HB, 82ff. The delegate’s final conclusion appears at HB, 92 [100] and [101].
TRIBUNAL’S TASK
In my review, I must address the same two questions as the delegate. On the assumption I have made about the jurisdictional threshold, to which I have referred,[5] the delegate decided the first question correctly as I have already indicated.
[5] At [5] above.
I make the following prefatory remarks[6] in respect of the second question, which concerns the exercise of the discretion. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[7] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[6] What follows in the balance of this paragraph is a series of standard observations that I include in all my decisions in this area.
[7] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This case concerned the Administrative Review Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply.
At the hearing before me, Ms Luu appeared for the applicant; Ms Brandon, for the respondent. I am grateful to them both for their helpful submissions and assistance.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the power in s 501(2) of the Act not be exercised. I set out below the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The applicant is a citizen of the United Kingdom who was born there in 1959. He was 66 years of age at the time of the hearing before me. The applicant arrived in South Australia in 1971, aged 12, with his parents and three of his siblings. Since arriving in 1971, the applicant has not left Australia.[8] The applicant has been married three times. From his first marriage, he has children who are 41 and 48 years of age respectively, and from his second marriage, he has two daughters who are in their thirties.[9]
[8] HB, 31 [3] and 149..
[9] HB, 31 [8]ff.
Since 2007 (that is, for the last 18 years approximately), the applicant has been in a committed relationship with a person named H. They do not have any children together. H is either 73 or 74 years of age.[10] The applicant and H married some three years ago. They live in H’s house in regional South Australia.
[10] She refers to herself being 73 years of age in her statement dated 20 June 2025 (HB, 36 [1]) but her birth date as recorded in her marriage certificate would suggest she is now 74 (HB, 126).
The applicant has a history of employment in South Australia, and has supported himself.[11] He continues to work today, although his recent confinement in detention has meant that he has had to give up his job but it would be open to him to return to the job on release.[12] He was removed into immigration detention on 18 May 2025 I understand.[13]
[11] HB, 131. The applicant’s curriculum vitae on this page does not include the time spent in jail, however. Employer references appear at HB, 141, 143, 145, 147, and 148.
[12] HB, 35 [56].
[13] HB, 31 [14].
The applicant’s criminal history was before me.[14] I now turn to that record. There is one offence from 1976 before the Port Adelaide Children’s Court involving two counts of using a telecommunications service for harassing a person. This charge did not lead to the recording of a conviction, however. A $100 bond was required to be entered. I accept the respondent’s submission that this offending should be excluded from consideration as there was no conviction;[15] but it could hardly be a ‘tipping point’ in my deliberations in any event.
[14] HB, 93-94.
[15] HB 304 [11].
The applicant also appeared in the Goulburn Children’s Court in February 1977 where he was convicted of driving at a dangerous speed. He received a suspended sentence of one year and was placed on a bond with a fine of $200.
I note that these appearances are before children’s courts.
There are a number of convictions in 2019 involving dishonesty. The first involved larceny by the applicant as an employee. The applicant was convicted and sentenced to serve one month’s imprisonment. The applicant was next found guilty on 12 March 1979 of one count of larceny and one count of false pretences in relation to which he received fines of $70 and $150, respectively. Later in 1979 the applicant was again convicted of false pretences and on this occasion he was convicted and sentenced to one month’s imprisonment. For the sake of completeness, I mention that the applicant apparently stole $75 from his church in the 1970s. The money was returned, and the theft did not result in a charge.[16]
[16] HB, 286.
These offences are all very old now, although the appearances are before the Magistrates Court. The last court appearance, in June 1979 in the Adelaide Magistrates Court, is 46 years old as at the date of my decision on 31 July 2025. The offences clearly belong to a different phase in the applicant’s life, and they are largely irrelevant to the decision I must make in this case. In my view, they could not reasonably be a ‘tipping point’ in my consideration of this matter; that is, they could not reasonably lead me to decide to affirm the decision under review if I would decide to set aside the decision under review view in their absence.
I turn now to the applicant’s most serious offending. The applicant was convicted on 25 January 2002 of two counts of unlawful sexual intercourse with a minor (being his stepdaughter). He was sentenced on that occasion to four years’ imprisonment, with a non-parole period of two years, by the District Court of South Australia. I had the sentencing remarks before me and I accept and rely on them.[17] The offences in question concern two acts of vaginal sexual intercourse, one act occurring between 1 January 2000 and 31 December 2000, and the other between 1 January 2001 and 1 March 2001. I note that the end of the date range for the second count ended on 1 March 2001, some 24 years and 5 months ago.
[17] HB, 184ff.
The applicant knew the victim was the daughter of his partner. Clearly, he had a special position of trust and responsibility in respect of the child in the common household, as the Court found.[18] The victim was 15 years of age at the time of the first act of intercourse, and 16 at the time of the second. The evidence before me suggests that the number of incidents of intercourse was most likely greater and that there were other types of sexual assault as well.[19]
[18] HB, 186.
[19] HB, 194.
The applicant was diagnosed as possibly having a compulsive sexual behaviour disorder by a forensic psychiatrist, Dr Raeside, at the time of his sentencing.[20]
[20] HB, 197.
The applicant went to jail and was released into the community on parole in due course. He has no other criminal offending against his name after this offending other than once failing to comply with his reporting obligations as a convicted child sexual offender. In relation to this later offending he was convicted and fined $120 in 2022. I accept his evidence that this offending was inadvertent and that he has otherwise been of good behaviour since the offending.
REASONS
Prefatory remarks
With this summary of the facts in mind, I come to the Direction. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [25] – [28] below.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that 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.
This is a particularly important principle to bear in mind in this case. Keeping minors safe from sexual harm is a pre-eminent example of the type of community protection to which this paragraph is directed.
Decision-makers are also required, by paragraph 8.1(2) of the Direction, to give consideration to the nature and seriousness of the non-citizen’s conduct to date and to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. So far as the nature and seriousness of the applicant’s conduct are concerned, it is sufficient, in my opinion, that I confine myself to an analysis of the sexual offending. The other offending to which I have referred cannot be a tipping point, so to speak, in my deliberations as I have said; that is, taking those offences into account could not realistically tip the balance against the applicant in this case. In my opinion, it is sufficient to focus on the sexual offending, and, accordingly, I have confined myself to that offending.
In considering the nature and seriousness of the applicant’s criminal offending and other conduct to date, decision-makers are to have regard to a number of paragraphs ((a) through to (i)). A sexual crime against a child is always required to be taken very seriously under paragraph (a) and this is irrespective of the sentence imposed (see paragraph (b)) although the sentence in this case marked the gravity of the offending.
I am to have regard to the impact of the offending on any victims and their family (paragraph (d)). The sentencing remarks refer to the very severe impact at the time upon the victim with the sentencing court quite reasonably predicting that it may be a lifelong impact.[21] The victim’s mother and siblings were grievously affected by the offending as discussed by the sentencing Court.[22]
[21] HB, 186-187.
[22] HB, 187.
The charged offences numbered two, but, as I have earlier observed, it seems clear that there were other occasions of sexual misconduct. I cannot say how many, but I am prepared to assume there were quite regular sexual assaults, including other acts of intercourse. In this regard I note the description of the history as recorded in Dr Raeside’s psychological report.[23]
[23] HB, 193-194.
There is a cumulative effect of repeated offending and I take that into account: see paragraph (e). I have already referred to the sentencing Court’s observations in respect of the impact upon the victim.
I turn now to consider the risk to the Australian community as required by paragraph 8.1.2 of the Direction. By subparagraph (1), decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated are so serious that any risk of repetition may be unacceptable. This is self-evidently an important principle to bear in mind in the case of sexual offending involving minors, particularly within families.
Under subparagraph (2), when assessing risk, I must have regard to two matters ‘cumulatively’; namely, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct;[24] and the likelihood of his so doing.[25] In respect of this latter question, I must take into account information and evidence on the risk of reoffending and evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since the most recent offence.
[24] Subparagraph (2)(a).
[25] Subparagraph (2)(b).
Clearly enough, on the assumption that the applicant were to reoffend against a minor, there could be the most serious consequences. The psychological disposition of a minor is always delicate as it is still developing. In this case, the minor was part of a family unit when she was abused by the applicant, who was her stepfather. She was too immature to consent to any of the sexual activity which was found to be proven against the applicant. She was in a sense ‘caught’ within the confines of the family home and liable to be abused. The abuse she suffered in a context where she ought to have felt supported and protected was significant, and its impact upon her was, as the sentencing Court remarked, very serious.
As for the likelihood of the applicant re-engaging in this conduct, I have decided that it is very low.
The Direction makes it clear that I should have regard to ‘evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since [the] most recent offence’: see paragraph 8.1.2(2)(b)(ii). I have already indicated that the offence in 2022 of failing to report to police was inadvertent only. If I leave this inadvertent offence to one side, this means that since the last offending in 2001, there have been no offences. That is a very long period.
I further take into account that the applicant is not presently living with minor children. It is also the case that his wife, H, is aware of his offending.[26] So there are those protective factors in place.
[26] HB, 135.
I also take into account the confronting experience the applicant has most recently had. As a consequence of his visa being cancelled, the applicant was taken into immigration detention and has spent some two months there facing the daunting prospect of compulsory deportation. That period of time represents a significant deprivation of liberty. Further sexual offending would, of course, lead to jail and almost certain deportation. There is a strong deterrent effect offered by this recent experience of visa cancellation and detention.
I have also had regard to the expert psychological report filed on behalf of the applicant by Mr Balfour.[27] That report does not place the risk at a higher level higher than I would: Mr Balfour in fact concluded that the applicant was at a very low risk of offending, which is lower than my own assessment. There are two aspects of that report with which, however, I find myself in disagreement, and I do not accept, therefore, the reliability of his reasoning.
[27] HB, 1ff.
The first is that Mr Balfour believed that the applicant no longer held the view that his victim was responsible, at least in part, for initiating and encouraging the sexual conduct. That belief was contradicted by the applicant’s oral evidence to me. The applicant indicated that he still believes the victim was responsible, at least in part, for the sexual conduct that took place.
Secondly, I also doubt Mr Balfour’s conclusion that the applicant now poses the same level of risk as a male who has never offended in this way in the past.[28] I expressed my concerns about this type of conclusion in DWHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 336 (‘DWHX’). The crime of sexual intercourse with a family member who is a minor, albeit not a biological family member, is so widely deprecated in society that to commit the crime is to ‘cross a line’, so to speak, that only relatively few men cross no matter what their sexual attraction to the victim. If this Tribunal were to equate the risk of the applicant reoffending with the statistical risk of another male of similar age offending for the first time, it would fail, I believe, to differentiate the cases of the two men when it ought to differentiate them on the basis of proven past behaviour. The crime is a highly deviant one, as I have said, and the fact that the applicant has crossed the line once, so to speak, and committed the deviant crime for his own gratification remains a relevant factor to weigh in estimating future risk. I refer here to my discussion in DWHX without repeating it.[29]
[28] HB, 29[16].
[29] [2023] AATA 336, at [46]ff.
But I return to the fact that I have evidence before me of the applicant’s life in the community after being released from jail. The applicant has resumed a normal life with work and has a new partner. He has not reoffended in more than two decades. His risk of reoffending is demonstrably very low in my opinion based on that history.
Nevertheless, under the Direction,[30] this is a matter I am to have regard to ‘cumulatively’ with the nature and seriousness of the offending, which I have indicated is very serious.
[30] Paragraph 8.1.2(2) of the Direction.
I must take into account family violence committed by the applicant under paragraph 8.2. I take into account the sexual assault against the minor in this connection. I do not need to repeat any of the analysis that I have just set out in respect of paragraph 8.1 of the Direction. There were many sexual assaults as recorded in Dr Raeside’s report as I have said, and there is a cumulative effect of re-offending as I have pointed out.
I note that paragraph 8.2(3)(c) refers to rehabilitation as at the time of decision since the last person’s last known act of family violence. I am not satisfied that the applicant accepts responsibility for his family violence, or that he fully appreciates the impact of his behaviour on the victim and her family. But I do believe that there has been rehabilitation in the sense of proven desistance from criminal offending by the very long gap between the last offence and the time of my decision, during which there is no suggestion of further deviant offending of this type.
I must have regard to the strength, nature and duration of the applicant’s ties to Australia: paragraph 8.3. By paragraph 8.3(1), I must consider the impact of my decision on the applicant’s immediate family members in Australia. In this regard I accept that the impact upon the applicant’s wife, H, will be severe. She has indicated that she will follow her husband to the UK if he is deported.[31] At her stage of life ‒ she is presently 73 or 74 years of age ‒ that is a daunting move to contemplate, but her desire to remain with her husband and preserve her marriage is an understandable one: the alternative would be to stay behind and give up her marriage as a meaningful day-to-day life union. She has an elderly brother here who relies upon her.[32] I note that she would also leave her children behind.[33] I do regard the disruption for the applicant’s wife, H, of a move to the United Kingdom to be severe. I have left to one side the letter of support written by the applicant’s child, K, as K did not attend the Tribunal for cross-examination despite prior notice requiring attendance having been given.
[31] HB, 37 [15].
[32] HB, 37 [18].
[33] HB, 37 [19].
So far as the interests of minor children are concerned,[34] it is agreed between the parties that this consideration applies neutrally.
[34] Paragraph 8.4 of the Direction.
I turn now to the expectations of the Australian community under paragraph 8.5. I acknowledge the force of subparagraph (1); namely that where a person has engaged in serious conduct in breach of Australia’s expectation that the person obey Australian laws while in Australia, the Australian community expects ‘as a norm’ that the Government should not allow that person to remain in Australia.
I also accept the full force of subparagraph (2); namely, that the applicant’s offending gives rise to very serious character concerns that are specifically mentioned in subparagraphs (a) and (c). I note that the expectations apply whether or not the applicant poses a measurable risk of causing physical harm to the Australian community: see subparagraph (3). I note also that I am to proceed on the basis of the Government’s views as articulated in the paragraph without independently assessing the expectations in a particular case: see subparagraph (4). This consideration clearly counts against the applicant substantially.
Under section 9, I am to consider so-called ‘other’ considerations. There is a non-exhaustive list of three such factors. One such factor is the extent of impediments if removed. The delegate addresses this expressly.[35] I have read the delegate’s analysis carefully. I agree with it, and I agree also with the delegate that it is appropriate to attribute to this factor significant weight against a decision to cancel the applicant’s visa. I need not set out the delegate’s reasons.
[35] HB, 90-91 [85] – [91].
Weighing the considerations
I now turn to weigh the various considerations which I have identified. I begin first with the very serious nature of the offending in this case. At various points, the Direction speaks forcefully against this type of offending. The Direction treats very seriously sexual offences against children, and where they occur within a family unit, they comprise a form of ‘family violence’ as defined, which is, of course, the subject of specific consideration by the Direction. The ‘community expectations’ consideration also applies directly.
It is clearly the case that sexual offending of the type engaged in by the applicant is required to be given the most careful consideration under the Direction. I acknowledge expressly that the protection of the community is the greatest priority of the Government, and that it ought to receive, as a general matter, greater weight than other primary considerations, which themselves ought to receive, as a general matter, greater weight than ‘other’ considerations arising under section 9.
The application of the Direction, however, is never mechanical. Careful consideration must always be given to the circumstances of an individual case. The Direction, in paragraph 5.1(2), expressly provides that the decision-maker must consider the specific circumstances of the case in deciding whether to exercise the discretion to cancel a visa. It is important to bear in mind that there is no conduct as such specified in the Direction that the Direction says automatically results in a decision adverse to a visa-holder. It is always a case of weighing all the various considerations having regard to the precise circumstances of the case.
In the case at hand, there are very unusual circumstances. The offending is very old, and there is a demonstration of appropriate and law-abiding community behaviour extending over more than two decades.[36] The risk of recidivism is low in my assessment, although not as low as Mr Balfour puts it. The assessment of future risk is informed by actual history and is not mere prediction: that is, it is an assessment based on the applicant’s behaviour in the community since release from jail more than two decades ago. There is no reason to suppose that the remainder of the applicant’s life will assume a different trajectory. That is an important aspect of the matter. I must also take into account the effect on the applicant’s wife, H, as the delegate did. I think the impact upon the applicant’s wife of moving to the United Kingdom would be exacerbated by her age as she is now 73 or 74 years of age. All her connections are here in terms both of her extended family and of her settled home-life in regional South Australia. I accept also, as the delegate accepted, that the impact upon the applicant himself is a matter to be weighed very seriously in his favour.
[36] With the exception of the inadvertent failure to report in 2022.
I return to the importance of applying the Direction with regard to the specific circumstances of the case at hand. The case before me is highly unusual, as I have said, because the offending has been followed by a very substantial period of compliance with the law, extending in fact over more than two decades. The applicant is well settled in an appropriate relationship within a settlement environment and with a future job opportunity available to him should he be released from detention.
CONCLUSION AND FORMAL DECISION
All in all, after weighing all the considerations required to be addressed under the Direction, I have come to the conclusion that in the unusual circumstances of this case, the preferable outcome is that the discretion under section 501(2) of the Act should not be exercised against the applicant. My decision, therefore, is to set aside the decision under review and substitute a decision to this effect. This is the decision I published on 31 July 2025.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.
...................................................................
Associate
Dated: 13 August 2025
Dates of hearing: 14 July 2025 Advocate for the Applicant:
H Luu
Advocate for the Respondent: K Brandon
0
2
0