Hughes and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2024] AATA 3158

Hughes and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 3158 (4 September 2024)
Division:GENERAL DIVISION
File Number: 2024/4102
Re:Michael Hughes
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Burford
Date of decision: 4 September 2024
Date of written reasons: 5 September 2024
Place:Perth

The decision of the delegate dated 11 June 2024, not to revoke the mandatory cancellation of the Applicant’s Skilled Independent (Class SI) (subclass 189) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
..............[Sgd]..........................................................
Deputy President Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 58 year old citizen of New Zealand and United Kingdom – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 198, 499(1), 499(2A), 500(6H), 500(6J), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501E, 501E(2), 501F, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 94
Webb v Minister for Home Affairs [2020] FCA 831
ZKNS and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4223
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.1, 5.1(3), 5.2, 5.2(2), 5.2(4), 6, 7, 7.2, 8, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(ii), 8.1.1(1)(d), 8.1.2, 9, 8.3, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a)-(f), 8.5(3), 9, 9.1, 9.1(3), 9.2, 9.2(1)(a)-(c), 9.3(1)
REASONS FOR DECISION
Deputy President S Burford
5 September 2024
THE DECISION IN THIS MATTER WAS MADE AND PROVIDED TO THE PARTIES ON 4 SEPTEMBER 2024 AT 2:30 PM WITH A NOTE THAT WRITTEN REASONS WOULD BE PROVIDED WITHIN A REASONABLE TIME. THESE ARE THOSE WRITTEN REASONS.[1]
THE APPLICATION
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 11 June 2024, not to revoke the mandatory cancellation of his Skilled Independent (Class SI) (subclass 189) visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
BACKGROUND
The Applicant is a 58-year-old citizen of New Zealand.[2] He was born in the United Kingdom and immigrated to New Zealand when he was four years old.[3] He testified that he is also a citizen of the United Kingdom.[4] He travelled to Australia from New Zealand on several short visits between 2008 and 2014, settling in Australia in 2014 to be near his adult children who resettled here with their families several years prior.[5] His partner relocated to Australia in 2016.[6] He was granted a Skilled Independent (Class SI) (subclass 189) visa on 30 January 2023 (the visa).[7]
[2] R1, G12, page 75.
[3] R1.G12, page 89.
[4] Transcript, page 26.
[5] R1, G10; A1.
[6] A1.
[7] R1, G11, page 60.
On 22 September 2023, the Perth District Court of Western Australia convicted the Applicant of ‘indecent dealing with child under 13 years’ and sentenced him to 20 months imprisonment.[8] The Applicant appealed against the decision in the Supreme Court of Western Australia. That appeal was unsuccessful.[9] The Applicant indicated before the Tribunal that he was considering further avenues to challenge the decision.[10]
[8] R1, G6, page 39.
[9] R1, G8, page 55.
[10] Transcript, page 11.
On 9 November 2023 the Minister cancelled the Applicant’s visa under s501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[11] The Applicant was notified of that decision by letter of the same date for delivery by hand at Acacia Prison. The Applicant signed for receipt of that letter on 16 November 2023.[12]
[11] R1, G11.
[12] R1, G11, page 68.
On 22 November 2024, the Applicant made representations to the Minister requesting revocation of the Cancellation Decision under section 501CA of the Act.[13]
[13] R1, G12-G20.
The Applicant appealed his conviction to the Court of Appeal of the Supreme Court of Western Australia which dismissed the appeal on 6 May 2024.[14] The Applicant was released on parole on 3 July 2024 and moved to immigration detention. At the time of the hearing he was in Yongah Hill Detention Centre.
[14] R2, S8, page 101.
On 11 June 2024 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision.[15] The Applicant was notified of that decision by letter dated 12 June 2024 and delivered by hand at Karnet Prison Farm (the Non-Revocation Decision).[16] This is the reviewable decision before the Tribunal.[17] The Applicant lodged his application for review of the Non-Revocation Decision with the Tribunal on 21 June 2024.[18]
[15] R1, G4-G5..
[16] R1, G2, G3, pages 13-15.
[17] s 500(1)(BA) of the Migration Act.
[18] R1, G2, pages 4-12.
THE HEARING AND THE EVIDENCE
The hearing was held on 20 and 21 August 2024 at the Tribunal’s Perth Registry. The Applicant attended the hearing in person. He was not represented. The Minister was represented by Jonathan Djasmeini of Minter Ellison who appeared by MS Teams from Sydney.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from:[19]
·Ms Alicia Ray Tarei, the mother of one of the Applicant’s former students;
·Mr Michael Paul Birch, Pastor of Kingsley Church of Christ;
·Ms Susan Robertson, the Applicant’s partner; and
·Ms Katie Irene Hughes, the Applicant’s daughter.
The day prior to the hearing the Applicant notified the Tribunal that Ms Robertson was isolating with COVID and wished to give evidence by telephone. Accordingly, Ms Robertson appeared on 20 August 2024 via telephone. All other the witnesses appeared in person.
[19] Transcript, p 75.
The following documents were marked as exhibits:
·Letter from Michael Andrew Hughes, dated 30 June 2024 (Exhibit A1);
·Document titled ‘Michael Andrew Hughes, Australian Administration Tribunal’ (Exhibit A2);
·Copy of Parole Order under Sentence Administration Act of Western Australia, dated 20 May 2024 (second page missing) (Exhibit A3);
·Prison visits contact list (Exhibit A4);
·Karnet Prison Farm telephone call list (Exhibit A5);
·Document titled ‘Michael Andrew Hughes application for merit-based assessment under Direction 110’, undated (Exhibit A6);
·Document titled ‘[Mstr JH] interview’, dated 23 May 2022 (Exhibit A7);
·Letter from Katie Hughes, dated 1 August 2024 (Exhibit A8);
·Letter from Reverand Michael Birch of Kingsley Church of Christ, dated 10 July 2024 (Exhibit A9);
·Letter from Susan Robertson, dated 4 August 2024 (Exhibit A10);
·Documents produced under s 501G of the Migration Act, known as G-Documents (Exhibit R1);
·Respondent’s Supplementary Documents, comprising pages 1-162 (Exhibit R2); and
·Copy of Parole Order under Sentence Administration Act of Western Australia, dated 20 May 2024 (including second page) (Exhibit T1).
The Applicant filed an ‘Outline of Submissions’ (ASFIC) dated 7 August 2024 and the Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 26 July 2024.
On 16 and 19 August 2024 the Applicant submitted further documents to the Tribunal. As this information was submitted less than two business days prior to the scheduled hearing[20], the Tribunal held a directions hearing to discuss the submission of the material on 19 August 2024. At that directions hearing, the Tribunal again explained the effect of s 500(6H) and s 500(6J) of the Migration Act and discussed with the parties whether the hearing should be adjourned to allow the material to be taken into account by the Tribunal. The Applicant indicated he did not wish to delay the hearing to accommodate the provision of the information submitted on 16 and 19 August 2024. The Applicant indicated he did not seek to rely on the information.
[20] Under s 500(6H) [oral evidence] and s 500(6J) [documents] of the Migration Act the Tribunal must not have regard to any information presented in support of the Applicant’s case unless the information was provided to the Minister at least 2 business days before the Tribunal holds a hearing. This is known as the “two-day rule”.
Having considered all the circumstances, including the information already submitted by the Applicant in compliance with the requirements of the Migration Act and having regard to the proposed witnesses giving evidence at the hearing, the Tribunal was satisfied it was not appropriate to delay the hearing and that proceeding without reference to the material submitted late would not impact the Applicant’s capacity to give evidence and make submissions regarding the matters he wished the Tribunal to take into account in support of his application. The documents were marked for identification at the hearing however the Tribunal has not had regard to them or taken them into account, consistent with the requirements of the Migration Act.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Member in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction no. 110.
REFUSAL AND VISA CANCELLATION ON CHARACTER GROUNDS
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[21] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[22]
[21] Migration Act s 501CA(3).
[22] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[23]
[23] See s 501CA(4) of the Migration Act.
For the reasons below, the Tribunal has decided that the Non-Revocation Decision should be affirmed.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[24] Migration Act s 501(7)(c).
[25] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[24] Failure to pass the character test arises as a matter of law.[25]
As noted above, on 22 September 2023, the Applicant was convicted of indecent dealing with child under 13 years in the Perth District Court of Western Australia and received a sentence of 20 months imprisonment.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[26]
[26] See Migration Act s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[27]
[27] Section 501CA(4)(b)(ii) of the Migration Act
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
Direction no.110
On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.
The Tribunal notes that the previous direction, Direction No 99, was in force at the time the Non-Revocation Decision was made.[28] Following the making of Direction no. 110, the Tribunal held a directions hearing on 28 June 2024 during which it discussed the new Direction with the parties and explained that the Tribunal would now be deciding the matter applying Direction no. 110. A copy of Direction no. 110 was provided to the parties.
[28] R1, G4 and G5.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[29] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[30]
[29] Direction no. 110 para 5.1(4).
[30] Direction no. 110 section 6 referring to sections 8 and 9.
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed 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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[31]
(a)the protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
[31] Direction no. 110 section 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[32]
(a)       the legal consequences of the decision;
(b)       the extent of impediments if removed; and
(d)       the impact on Australian business interests.
[32] Direction no. 110 section 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in section 7, which provides that:
·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the ‘other considerations’.
·One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In his application for review, the Applicant claimed that Minister’s decision was wrong because the Department had ‘not applied the law correctly, in that assertions used to calculate the weight of specific criteria were overstated in some instances, and understated in others’. He contended that ‘a properly balanced view of all the facts in my case will support the revocation of the cancellation decision’. [33]
[33] R1, G2, page 9.
He detailed the reasons why he considered there was another reason why the cancellation decision should be revoked in submissions to the Minister in support of his request for revocation, his ASFIC and in statements and oral submissions to the Tribunal. In summary the Applicant claimed:[34]
[34] ASFIC; A1, A2, A6, A8; Transcript, pages 85-93.
·He is not guilty of the offending for which he was convicted. The information on which his conviction was based is false;
·He was granted parole and was seen by the Parole Board and Sentencing Judge as being a reasonable risk to the community. This is also supported by his Registered Psychologist;
·He was subject to strict bail conditions for 18 months in the community after he was arrested and abided by his conditions;
·He has maintained positive behaviour in prison and furthered his education there. He has tutored other prisoners;
·He has the support of his partner whom he plans to marry on release, stable accommodation and family and community support in his local community;
·He is empathetic to the complainant. While he maintains he did not assault the child he is sorry that they and their family experienced this pain. He also recognised the stress his charges caused to his partner and family, the costs of incarceration and of the legal proceedings;
·He will not allow children he does not know around him again and understands community expectations in relation to people convicted of this kind of offence;
·He raised his children as a single parent and is close to them and their families;
·His children and grandchildren have struggled while he has been away. His life and family are in Australia and separating him from his family would cause significant hardship;
·He has no support and nowhere to live in New Zealand.
The Respondent submitted, in summary, that the considerations weighing against the Cancellation Decision being revoked outweigh those considerations weighing in favour noting:[35]
[35] RSFIC.
·The Applicant’s offending was very serious involving sexual offending against a child;
·The sentencing remarks demonstrate the impact of the offending on the victim including psychological and emotional trauma;
·The harm that would be caused were the Applicant to reoffend is so serious that any risk is unacceptable. Any reoffending would cause significant physical and/or psychological injury to members of the community;
·The Applicant has not taken any responsibility for this offending and has not demonstrated any insight. He minimises the seriousness of the offending and his remorse should be treated with caution;
·The Applicant seeks to go behind the conviction but has not discharged the heavy onus to establish a factual basis for doing so;
·The Applicant has not undertaken any rehabilitation to address the nature of his offending and the pro social supports he relies on as a protective factor against reoffending were present at the time of his offending;
·While the Applicant has ties to the community through family, members of the community and social and sorting clubs these do not outweigh other considerations. Similarly, while the best interests of the Applicant’s grandchildren are that he remains in Australia as the relationship is not a parental one less weight should be afforded to those interests;
·Given the nature of the offending the Australian community would expect the visa to remain cancelled;
·While the Applicant may face some practical and financial difficulty in re-establishing himself in New Zealand he has transferrable skills and the long term impediments will be limited.
Having regard to these considerations it was contended by the Minister that the Tribunal should not be satisfied that there is another reason why the decision to cancel the Applicant's visa should be revoked.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to 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.[36]
[36] See also Direction no. 110 para 8(1).
Paragraph 8.1(2) of Direction no. 110 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[37] In doing so, paragraph 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[38]
[37] Direction no. 110 para 8.1(1).
[38] Direction no. 110 para 8.1.1(1)(a).
According to the Sentencing Judge’s remarks, the victim of the offending was a 10 year old boy. The offence was committed while the Applicant was on a caravanning holiday with two of his grandchildren. The Applicant met the victim and his family who were also staying at the campsite.[39] The victim and the Applicant's grandchildren played together throughout the weekend, and the Applicant agreed to the victim to spending the night in the caravan after a request from his grandchildren and with the boy’s parents’ agreement.[40] The Sentencing Judge described the details of the offending as follows:[41]
Whilst at the caravan, [the victim] and the boys played some games, they played on their iPads or devices. All three boys and you showered individually in the shower cubicle in your caravan. [Mstr JH] went first, [the victim] went second and I find that you went into the bathroom and opened the shower door whilst [the victim] was in the shower on one occasion. I find that [the victim] had taken off his tracksuit pants, undies and T-shirt and had placed them on the top bunk along with his other things.
You told [the victim] that the caravan can get hot at night-time. [The victim] went to bed wearing his underpants and T-shirt and went to bed on the top bunk. [Mstr JH]’s younger brother, [Mstr LH], was in the middle bunk and there was a bottom bunk but that contained storage items. [Mstr JH] was on the couch that had been converted from the table in the caravan into a bed.
You told the boys to get off their devices and that it was bedtime. All of the lights in the caravan were turned off. There was a light on that remained on on one side of the caravan.
[The victim] was lying on the top bunk in his undies and T-shirt and he had a blanket over his lap. [The victim] was lying on his stomach when you walked up to the bunk and you started to massage [the victim]’s back. You then told [the victim] to flip over. [The victim] turned over onto his back and you then started to massage his stomach area. You then moved the blanket down so that it sat approximately at [the victim]’s upper thigh area. You massaged [the victim]’s torso, so his stomach area, moving down his body until you reached his private parts.
I find that [the victim] told you to stop but you didn't stop. You then pulled [the victim]’s underpants down so that his penis was exposed and you then massaged or rubbed [the victim]’s penis. At that stage, [the victim]’s underpants were at the top of his thighs. You rubbed [the victim]’s penis with the palm of your hand and some of your fingers and they were going up and down in a rubbing motion, as [the victim] described. [The victim] told you to stop on more than one occasion but you did not stop.
At this stage, [Mstr JH] and [Mstr LH] were asleep, [Mstr JH], as I say, on the couch and [Mstr LH] on the middle bunk. When [the victim] told you to stop, you didn't say anything but as I’ve indicated, you kept going. [the victim] then rolled to the side and he pulled the blanket with both hands up over him and jerked away from you so that he was then facing the wall and lying on his side. You then walked away.
[The victim] pulled his underpants up and he put his long pants on over his underpants. His T-shirt was still on and he told you that he had something to drop off to his tent. He then ran back to the tent where his mother and stepfather were asleep.
When [the victim] arrived back at the tent, he unzipped it and jumped in and zipped the tent closed. His mother awoke with a start. When [the victim] came into the tent, he was breathing heavily and I accept the evidence that both Natasha Krepp and Dennis Jacka gave at trial that [the victim] seemed quite scared and upset.
[39] G7, pages 43-44.
[40] G7, page 43.
[41] R1, G6, pages 44-45.
The victim's stepfather confronted the Applicant and police attended.[42] The child was interviewed the following morning by a specialist child witness interviewer.[43]
[42] R1, G7, page 45.
[43] R1, G6, page 45.
This was the factual basis on which the Applicant was sentenced.[44]
[44] R1, G6, page 45.
The Applicant provided his own account of the events in submissions and evidence.[45] In summary he denied touching the child and claimed his grandsons were awake during the claimed incident:[46]
On the Saturday evening [Mstr LH] asked if their friend could stay as we had three bunks and my bed in the caravan. I met his mum and step-dad and said "if it was ok with them that would be fine with me". His parents camp ground was close by.
That night the 3 children were playing on their electronic devices. Around I 0:00pm [Mstr JH] yelled out "[Mstr LH] is sick" and [Mstr LH] ran to the door, I was comforting him as he vomited out the door. I then put him in the middle bunk so he was close to the door. I patted his back as he was crying and upset. Their friend said back rub so I patted his back with the other hand for a less than minute by then [Mstr JH] started to settle. [Mstr JH] was awake on the table bed in clear view. I told all three boys to "please put their devices away and go to sleep" around I 0:30pm, said goodnight and went to my own bed. About 15min later their friend asked to go home, So I said yes. I followed him back to his tent as it was dark. His step-dad came out of the tent and asked if I had touched him. I told him riot to be stupid. He hadn't even spoken to the boy. The next day I was arrested and charged, At no point did I touch him inappropriateIy, my grandchildren were present, in clear view and awake.
[45] A1.
[46] A1, page 2.
He provided a document headed ‘[Mstr JH] Interview’[47] which he said was an interview by a psychologist with his grandsons which proves they were awake and did not witness the events found to have amounted to the offence. He stated this evidence had not been provided to the Court of Appeal who upheld the conviction on appeal.[48] He acknowledged these claims (that the events were different and his grandsons had been awake and that the evidence leading to his conviction was false) were raised at the trial and were not accepted by the jury or the Sentencing Judge.[49] The Court of Appeal dismissed an appeal against the conviction.
[47] A7.
[48] Transcript, page 34.
[49] Transcript, page 34.
The Applicant’s denial of the offences raised the issue of the extent to which it was open to the Tribunal to ‘go behind’ the convictions or accept the Applicant’s alternate account of the events surrounding them. These matters were discussed with the parties at the hearing.
The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based.[50]
[50] Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [41].
The overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the respondent by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or sentence[51]
[51] Ali at [42]; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP); (2019) 273 FCR 121 at [63], [68], [71], [76]-[79] per McKerracher J, with whom Colvin J agreed at [179]; see also [181]-[196] per Colvin J.
As summarised above, the Applicant was convicted after a trial by jury between 14 August 2023 and 21 August 2023 in the Perth District Court, of indecently dealing with a 10-year-old child by touching his penis on 10 April 2022 at Gwelup.[52] He was refused leave to appeal against that conviction by the Court of Appeal on 13 May 2024.[53]
[52] R1, G7, page 42 and G8, page 54.
[53] R1, G8, page 55.
The Applicant was sentenced by her Honour Judge Sheperd to 20 months’ imprisonment for the offence of indecent dealing with a child.[54] This sentence was the basis for the mandatory cancellation decision under s 501(3A) of the Migration Act, which gave rise to the subsequent reviewable decision that is before the Tribunal.[55] In those circumstances, it is not open to the Tribunal to go behind the essential facts of that conviction and sentence.
[54] R1, G7, page 53 and G8, page 54.
[55] See R1, G11, pages 61 and 67.
Moreover, the Applicant has not discharged what would otherwise be his “heavy onus” to challenge the facts upon which the conviction and sentence are necessarily based as set out above. In the Tribunal’s view, the Applicant did not offer evidence in support of his contested versions of events which might discharge the heavy onus which he bears to convince the Tribunal to adopt an alternate version or characterisation of the facts of offences for which he was found guilty by a jury and sentenced by a court and where that conviction was upheld on appeal. Having regard to the offences and to the authorities, the Tribunal considers it is bound to accept the essential facts contained within the Sentencing Judge’s remarks in respect of the Applicant’s conviction.
In this regard the Tribunal notes the comments of McKerracher J in HZCP at [72]-[75][56], where his Honour noted the power with respect to revocation of a mandatory cancellation under s 501(3A) is predicated on a sentence, not a conviction. His Honour noted:
here the power under s 501CA(4) arose after a cancellation decision having been made under s 501(3A)(a)(i), specifically that the appellant had a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more. The power under s 501CA(4) was enlivened after sentencing. Sentencing may be distinguished from conviction in that a sentencing judge is generally, depending on the state criminal statutory regime, required to consider the circumstances surrounding the commission of the offence for which the person was convicted and making findings of fact in relation to this inquiry.
His Honour noted that the sentencing judge’s task requires them to make factual findings about what the offender did. In HZCP as in the current case that involved consideration of matters arising under the Sentencing Act 1995 (WA)[57] guided by the sentencing principles in s 6 which include consideration of the circumstances of the commission of the offence.
[56] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
[57] R1, G7, G8 page 54.
Having regard to all the evidence, the Tribunal is unable to accept the Applicant’s alternate version of events as credible, even if it were open to the Tribunal to do so. This is because the evidence falls well short of discharging the ‘heavy onus’ which falls on an Applicant seeking to challenge the facts upon which a conviction is necessarily based, noting the only evidence offered was his own account and the untested transcript of the interview with his grandsons. Though that evidence was claimed not to be before the court on conviction and sentencing the Applicant accepted the account he gave, including that the children were awake, was raised at the trial and was not accepted. The Tribunal is not satisfied that even if it were open to the Tribunal to do so, there is any basis for departing from the facts as found by the Sentencing Judge.
In this regard the extent of the Applicant’s denial of the facts of the offences the Minister submitted these denial’s gave rise to a concern both about the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences. These matters are dealt with further below.
Under Direction No.110, the types of crime or conduct to be viewed very seriously includes, but is not limited to:[58]
crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed
[58] Paragraph 8.1.1(1)(a)(ii) of Direction no.110
In the Tribunal’s view, the offence for which the Applicant was convicted can properly characterised as ‘crime of a sexual nature against a child’ and as such is to be viewed ‘very seriously’ regardless of the sentence imposed.[59]
[59] Paragraph 8.1.1(1)(a)(ii) of Direction no.110.

The Sentencing Judge noted that any 'offending sexually against a child is considered to be very serious offending'. Factors that made the Applicant's offending serious, included the age gap between the Applicant and victim, and the fact that the Applicant was in a position of trust with respect to the child.[60]
[60] R1, G7, page 46-47.
The Sentencing Judge found the offending was 'opportunistic and not pre-meditated' and did not involve physical force, threats or grooming which would otherwise have been aggravating factors making the offending more serious.[61] The Sentencing Judge noted they considered the offending as 'a serious example of this type of offending’, however it was ‘not at the upper range but it's also not at the very lowest range either'.[62]
[61] R1, G7, page 47.
[62] R1, G7, page 47.
The Tribunal considers the Applicant’s offending to be very serious. While not at the upper end for this kind of offending it was also not 'on the low end of the scale for this type of offence' as contended by the Applicant.[63]
[63] R2, S2, page 9 at para 7.
The Tribunal must also take account of the impact of the offending on the victim and his family.[64] The sentencing remarks refer in detail to a victim impact statement provided by the victim's father, which gave an account of the victim's emotional and psychological trauma and the impact of the offending on the victim's family.[65] The sentencing remarks the victim impact statement provided:[66]
I write to you today not only as a father but as the voice of my precious child, [the victim]] who has suffered unimaginable trauma due to the abhorrent act committed against him. I share these words hoping they will help convey the impact this abuse has had on our lives. The psychologically. As a father, witnessing my child suffering has been a torment that words can scarcely describe.
…
Our once vibrant and carefree child is now gripped by anxiety and trust issues. [the victim] has trouble sleeping and struggles with self-esteem.
[64] Direction no. 110 para 8.1.1(1)(d).
[65] R1, G7, page 46.
[66] R1, G7, page 45-46.
The sentencing remarks note the statement also speaks to the child’s parent’s feelings of guilt and anger and the impact the offending has had on the family. The Tribunal accepts the offending has had a significant on the victim and his family and that this contributed to the overall assessment of the offending as very serious.
The Tribunal notes this is the Applicant’s only recorded offence in Australia or New Zealand.[67] This is in the Applicant’s favour and demonstrates his conduct in general has been law-abiding. The Sentencing Judge considered evidence from the Applicant’s family and friends concerning his community activities and his history as a single parent who raised 3 small children and put himself through teachers college noting that the Applicant had ’lived a very law-abiding life, to the tee, it seems, not even a speeding ticket, but this is very serious offending’.[68]
[67] R1, G6, page 38 - 40.
[68] R1, G7, page 48 – 50.
However, the Direction states that crimes of a sexual nature against children, regardless of the sentence imposed, are to be viewed very seriously.[69] The Tribunal sees no reason in the present case to depart from that characterisation and regards the Applicant’s conduct and offending to be very serious.
[69] Direction no. 110 para 8.1.1(1)(a)(ii).
In the Tribunal’s view having regard to the evidence and the comments and assessment of the offending by the courts, the Applicant’s offending was very serious and weighs heavily against revoking the cancellation of his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 110 states, in part:[70]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[70] See also Direction no. 110 para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[71] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[72]
[71] Direction no. 110 para 8.1.2(2)(a).
[72] Direction no. 110 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[73]
[73] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[74]
[74] Direction no. 110 para 8.1.2(2)(a).
As noted above, the Sentencing Judge observed, the impact the offending had on the victim and his family. This was also in the context of the observation that ‘any offending sexually against a child is considered very serious’.[75] In the Tribunal’s view this was linked to the serious harm such offending causes to children who are among the most vulnerable members of our community.
[75] R1, G7, page 46.
In the Tribunal’s view there is no doubt the harm which would be caused were the Applicant to commit further sexual offences against a child would be very serious and would cause serious emotional, psychological, and in some cases, physical harm to the child. It would also cause psychological harm to the child’s family members.[76]
[76] Direction no. 110 para 8.1.2(1).
The Tribunal considers the nature of the harm which would be caused were the Applicant to reoffend in a similar manner to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[77]
[77] Direction no. 110 para 8.1.2(2)(b).
The Applicant maintains he presents no risk of reoffending. He denies having offended in the past and points to his lack of any prior convictions and the strong family and community support he continues to receive and demonstrating his prosocial and law-abiding nature. He points to strong family and community support as a protective factor against reoffending. He contended that the Sentencing Judge, Parole Board and a treating psychologist considered he was not an unacceptable risk to the community. He indicated he would not have unsupervised contact with non-familial children in the future and that he was aware of the restrictions of his parole and reportable offender status. He contended there is no risk he would put his family members through the pain of any further charges. He points to the period he spent on bail in the community complying with conditions and not reoffending and the fact he has demonstrated positive behaviour in prison as an indication of his low risk in the community and his capacity to live a law-abiding and productive life. He maintains he will meet any requirement set for remaining in the community, including undertaking programs or counselling. He acknowledged he had not undertaken any specific programs for sex offending but maintained these were not offered to him and no criminogenic needs were identified for him – effectively he had no unmet treatment needs.
With regard to the Applicant’s likelihood of reoffending, the Sentencing Judge stated:[78]
I don’t consider that you're - there's no material before me about risk of reoffending, but in the circumstances, with your - the fact that you'll be a reportable offender, together with your antecedents and your strong family support, and wider community support, I don't consider that you will be at high risk of reoffending in this way in future.
And I'm not able to make any positive finding that you are at risk at all of reoffending. It's just a neutral factor. But insofar as it goes either way, I consider that you're unlikely to reoffend in this way in future from all of the materials I have, and for the reasons that I've given.
[78] R1, G7, page 50.
The Applicant's treating psychologist, Mr Roth of the Trauma and Phobia Clinic, provided a ‘character reference’ in the context of sentencing dated 16 September 2023 which noted that the Applicant had been referred for ‘significant emotional dysregulation and symptoms indicative of Post Traumatic Stress Disorder’. He was initially assessed in March 2023 and then undertook regular session until June 2023.
The letter noted the Applicant presented as an ‘honest, compassionate and empathetic individual, having a high degree of impulse control, a sense of responsibility, not being a manipulative or deceitful person’.[79] Mr Roth expresses the view that ‘at no time did [the Applicant] represent a threat to the safety of others’ noting also that ‘the relationship with his grandchildren was described in healthy, positive terms.’ [80] Mr Roth also noted ‘no evidence could be found as to any questionable behaviour by Mr Hughes towards his children or his grandchildren’.[81]
[79] R1, G15, page 109.
[80] R1, G15 page 110.
[81] R1, G15, page 110.
While the letter refers to a ‘comprehensive psychometric assessment’ no copy of any assessment was provided to the Tribunal. The Tribunal accepts Mr Roth considers the Applicant does not present a threat to others. However, the Tribunal does not consider that Mr Roth’s letter is of the nature of a comprehensive psychological risk assessment, nor does it purport to be such. The Tribunal places weight on the document as a character reference from a psychologist, however limited weight can be placed on the letter as an expert professional assessment of the likelihood of reoffending in a similar manner.
A parole review report was prepared in April 2024.[82] That report records the Applicant’s positive behaviour in prison. It notes the Applicant’s treatment needs had not been assessed due to his appeal status and that he had not participated in any voluntary courses at that time but was waitlisted for Standing on Solid Groups (which he testified he later completed). The report notes the Applicant had engaged in a range of educational and vocation training programs in prison.[83] The report also notes the Applicant had maintained contact with family and friends and weekly visits from his daughters and partner. At that time parole was not recommended given the Applicant’s treatment needs had not been assessed and his appeal and immigration status had not been resolved. The report recommends that once those issues were resolved parole was recommended on the basis the Applicant had undertaken to participate in psychological counselling in the community.[84]
[82] R2, S9, pages 116-122.
[83] R2, S9, pages 119-120.
[84] R2, S9, pages 121-122.
The Applicant claimed to have completed the Standing on Solid Ground voluntary program at some point and while the Tribunal was unable to locate a record of completion in the material it accepts the Applicant completed the course based on his description of its content.[85] The Tribunal understands this to be a course directed at general offending rehabilitation rather than sexual offending and as there is no evidence regarding treatment gains achieved from the course the Tribunal is unable to place significant weight on participation in that course in terms of the assessment of likelihood of further sexual offending. However, as with the educational and vocational courses undertaken by the Applicant in prison the Tribunal considers the completion of the course and those other activities to reflect positively on the Applicant’s commitment to not re-offending and to building a prosocial future in the community.
[85] Transcript, page 15.
The Applicant was paroled on 3 July 2024 from which time he has been in immigration detention. The parole order was issued on 20 May 2024 and expires on 20 April 2025.[86] The parole order states that the Board took into considerations under the WA Sentence Administration Act and gave ‘paramount consideration to the safety of the community’. The Board noted that it considered that the Applicant’s release presented ‘an acceptable risk to the safety of the community’ due to:[87]
1Your unaddressed treatment needs can be met in the community through a period of parole supervision.
2You having a limited criminal history.
3The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
4Your prison conduct which demonstrates compliance with directions.
5Your parole plan which includes confirmed suitable accommodation, confirmed employment and support from friends and family
[86] R2, S1, page 7.
[87] A3, T1.
The Tribunal notes that parole decisions are made in the context of the Applicant’s current conviction and sentence. The Tribunal’s process requires an assessment of the likelihood of the Applicant reoffending if permitted to remain in the Australian community in the context of deciding whether the decision to cancel his visa should be revoked. As such, the Tribunal’s task necessarily involves a somewhat broader and more long-term assessment of risk than is potentially relevant to the Parole Board’s considerations. The Tribunal’s role is to consider the risk of reoffending in the context of the cancellation of the Applicant’s visa. This necessarily involves an assessment of risk into the future extending beyond the parole period.
However, the Tribunal considers that the parole considerations are relevant in assisting to assess the likelihood of reoffending in the context of the Tribunal’s task and the Tribunal places weight on the parole reasons as being consistent with a low risk of reoffending. The Tribunal also considers the parole conditions which will remain in place until April 2025 are a protective factor against reoffending in the short term.
With respect to the victim of the offence, the Tribunal notes there is a Lifetime Violence Restraining Order in place for his protection. The Tribunal considers this affords additional protection against reoffending against that child further reducing the risk of reoffending with respect to them.[88]
[88] R2, S9, page 117.
The Sentencing Judge noted that 'there's no mitigation that I can find in any remorse because there's no acceptance… of any responsibility for your offending'.[89] The Applicant maintained this position before the Tribunal and while he expressed remorse for the impact on his family members and empathy for the victim’s suffering as a result of going through the court process, he did not accept he committed the offence and therefore did not express remorse for the offending.[90] He also did not accept he had any unmet treatment needs linked to the offending.[91]
[89] R1, G7, page 50.
[90] ASFIC; A1, A2, A6, R2, page 11.
[91] Transcript, page 32.
Earlier written submissions from the Applicant pointed to his age as a deterrent factor in reoffending, particularly with respect to sexual offences, his lack of other markers including drug use, his commitment to maintaining a distance from children and not being with them unaccompanied including in a 'relapse prevention strategy' in which 'relapse' is given the definition of 'not again being accused of such conduct'.[92] The Tribunal does not place significant weight on these submissions as evidence of protective factors against re-offending.
[92] S2, page 12 at para 26 and 27.
The Tribunal notes the Applicant has not undertaken any courses or rehabilitation programs addressing sexual offending or the underlying causes of the offending which are not identified in the material before the Tribunal. The Sentencing Judge noted the offending was 'opportunistic and not pre-meditated'.[93] No treatment needs are identified though ‘unmet treatment needs’ are referred to in the parole decision. The Applicant did not accept he needed treatment as he denies the offending, however he did indicate he would continue counselling which he admitted he needed due to the experience of having been convicted and imprisoned.[94]
[93] G7, page 47.
[94] Transcript, pages 31 – 32.
The Minister submitted that the evidence demonstrates that the Applicant has not taken any responsibility for his offending, nor demonstrated insight into it. The Tribunal accepts these submissions in part. The Tribunal is concerned that the Applicant’s ongoing denial of culpability for conduct which the Tribunal must accept occurred as found demonstrates a lack of insight into actions and behaviour which caused significant harm to a young child and broader impacts on the child’s family and his own.
The Tribunal notes the Applicant’s friends and family members provided strong testimony in support of his claim that he will not reoffend. The difficulty presented by this evidence is that in each case it appeared founded on the belief that the Applicant is not guilty of the offence. As noted earlier the Tribunal considers it must, and should, proceed on the basis that the Applicant is guilty of the offence. In such circumstances it is difficult to place significant weight on evidence that the Applicant will not offend again because it is not in his character to ever have offended in such a way.
However, the Tribunal found Mr Hughes acknowledgement of the impact of his conviction on his own family members to be genuine and considers the salutary effect of imprisonment and the resulting separation from them in addition to the consequences of his conduct for his professional career will act as a strong protective factor against reoffending. Consistent with the other material before the Tribunal, the Tribunal considers the likelihood of the Applicant reoffending to be low. However, noting his ongoing denial of that offending and the lack of steps taken to address the reasons for offending, the Tribunal considers there remains a risk of the Applicant reoffending, albeit a low risk.
The Minister contended that the harm that would be caused by the applicant's conduct, if it were to be repeated, is so serious that any risk it may be repeated is unacceptable[95] noting the offences were of a sexual nature and committed against a young and vulnerable child.[96] The Applicant contends there is no risk he will reoffend, noting he maintains he did not commit the offence for which he was convicted.
[95] Direction no. 110 para 8.1.2(1).
[96] Citing ZKNS and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4223, the Tribunal recognised (at [46])

Overall, having regard to the very serious nature of the harm which would be caused were the Applicant to commit further sexual offences against a child the Tribunal considers even the low risk presented by the Applicant is unacceptable in the context of his request for revocation.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs very heavily against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence. Accordingly, the Tribunal considers that this consideration is not relevant in the Applicant’s case.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As outlined above, the Applicant has resided permanently in Australia since December 2014 when he was 49 years old. He has spent approximately 10 years living and working in Australia.[97]
[97] R1, G10, page 59.
The Applicant submitted he has strong ties to Australia though his family and friends, and connection with community groups. These connections include his partner of 22 years, Ms Robertson, his three children and their families which includes 11 grandchildren.[98] While his children were born in New Zealand, they have all lived in Australia for more than 10 years.[99] He worked as primary school teacher for most of his time in Australia, supporting local parenting groups and community sports. His partner also works as a primary school teacher giving them strong links to the community.
[98] R1, G13, page 94; G12, page 85.
[99] Transcript, page 24.
The Minister acknowledged the Applicant’s ties to Australia and involvement with the community and accepted that this consideration weighs in favour of revoking the cancellation of the Applicant's visa. However, the Minister contended that the consideration should not attract significant weight or outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community, that weigh heavily in favour of non-revocation.
The Sentencing Judge noted that prior to the offending the Applicant wasn’t ‘just a person of good character, but ..really went above and beyond for your students, and for those in the community, and the Banksia Grove Dad's Group - I probably haven't given it the right name – that you set up’.[100] Before the Tribunal both Reverand Birch and Ms Tarei gave strong evidence regarding the contribution the Applicant made to his local community as a teacher and with the Banksia Grove Dad’s Group as well as local sporting associations.[101] Katie Hughes gave evidence of strong support in the local community offered to the family and the Applicant notwithstanding his conviction and testified that his work with Dad’s in the Grove had had a very positive impact on the local community.[102] Like Ms Tarei, a number of parents of the Applicant’s former students provided statements in support in the context of his sentencing and before the Tribunal. These references speak to the Applicant’s dedication as a teacher and to the individual difference he made to students and families in his role as a teacher.[103]
[100] R1, G7, page 50.
[101] Transcript, pages 39-50; R1, G19, pages 173-174, 176, 177.
[102] Transcript, page 69.
[103] See for example R1, G19, pages 176, 177
The Tribunal considers that prior to his conviction the Applicant made a significant contribution to his local community through his efforts as a teacher and through community activities and initiatives including Dad’s in the Grove. These activities and his strong community connections through them weigh in his favour.
In the Tribunal’s view it is evident that the Applicant’s ties to Australia are strong. The Applicant’s immediate family, his three children and eleven grandchildren are living in Australia. Prior to his offending he had made a strong contribution to the local community as a teacher and through establishing a local parent support program for fathers. Through these activities he built strong ties to Australia.
Statements provided by the Applicant, his friends and his family members confirmed his close relationship with this family members and the strain which his return would place on them.[104] Several also speak to his positive qualities, community-mindedness and the contribution they believe he will make to the community in the future.[105] Phone logs and visit logs from Karnet Prison Farm indicate that the Applicant is in close contact with his daughters, Katie and Crystal, and partner and received regular visits from friends.[106] This was consistent with their evidence at the hearing, which demonstrated a close connection to the Applicant. Katie Hughes gave evidence of her strong relationship with the Applicant who has raised her as a single parent from infancy. She testified his removal would be devastating to her and her family.
[104] A6; A7; A8; A9; A10.
[105] A6;.
[106] A4, A5; R2, S3, S4, page 16-61.
The Applicant claimed he and his partner had already suffered significant financial hardship as a result of his conviction and would continue to suffer if he is removed.[107] Before the Tribunal she testified as to the impact on her if the Applicant were returned to New Zealand:[108]
It would be unbearable. It would be huge. And I really, honestly, truthfully, mean that. It’s taken its toll now. And then to get that final – I’m sorry, I don’t mean to get upset – to get that final no. It would be huge, absolutely huge.
[107] R1, G13, page 97.
[108] Transcript, page 60.
The Tribunal accepts the Applicant’s partner would suffer significant emotional strain and ongoing financial hardship if the Applicant’s visa remains cancelled and he is removed to New Zealand. While her own children and grandchildren live in New Zealand she has a job here and is a committed teacher. She considers Australia her home and does not wish to return to New Zealand and indicated she could not afford to do so in the short term as it would mean resigning from her current job. However, the Tribunal notes that she has worked previously as a teacher in New Zealand and considers that she would have options for employment in that country if she resettled there. Likewise, the Tribunal accepts the Applicant has a close extended family who will suffer if the Applicant is removed. The Tribunal accepts that his family members may not have the means to visit New Zealand and do not wish to relocate there. This makes a prolonged separation likely.
The Applicant has close ties to the Australian community through his children, grandchildren partner and community connections. He has been employed as a teacher over a long period and while he cannot return to that profession given his conviction he is committed to continuing to work and has worked as a truck driver and in a factory prior to imprisonment. The Applicant has completed courses while in prison to improve his employment prospects on release, including teaching English to non-speaking English adults and utilising his forklift licence.[109] He claimed his qualifications for these activities would be recognised in Australia but not New Zealand, giving him enhanced employment prospects here.[110]
[109] R1, G13, pages 95 and 103.
[110] Transcript, page 28.
Although he did not come to Australia at a young age, he has made a contribution in the years he has been living here. He has had periods in the community where he has maintained an active prosocial and law-abiding lifestyle, making a contribution to those about him.[111] However, he committed a serious offence which will strain the nature of his community interactions going forward including preventing him from teaching children.
[111] R1, G19, pages 171-179.
Overall, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revoking the visa cancellation.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[112]
·the nature and duration of the relationship between the child and the non-citizen, noting 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;
·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;
·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;
·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;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[112] Direction No 110 para 8.4(4)(a)-(h).
As stated above, the Applicant has eleven grandchildren, eight of whom are under the age of 18 years old.[113] Before the Tribunal the Applicant identified the following minor children will be affected by the decision:[114]
·Miss TH, the Applicant’s 17 year old granddaughter;
·Miss BD, the Applicant’s 15 year old granddaughter;
·Miss AH, the Applicant’s 13 year old granddaughter;
·Mstr JH, the Applicant’s 12 year old grandson;
·Mstr LH, the Applicant’s 9 year old grandson;
·Miss EB, the Applicant’s 5 year old granddaughter;
·Miss MH, the Applicant’s 4 year old granddaughter; and
·Mstr SH, the Applicant’s 3 year old grandson.
[113] R1, G12, page 81..
[114] R1, G12, page 81.
In his submissions he also identified his step-grandsons, Juan Shelton Tanehohaia, Taj Terr and Tyzac Hita-Duvel. However, he confirmed that as at the time of the hearing those grandchildren were over 18 years old. Accordingly, and as discussed with the Applicant at the hearing, the impact of the decision on those family members has been considered above in the context of the Applicant’s ties to Australia.[115]
[115] Transcript, page 19-20.
Miss TH are Miss BD the daughters of Crystal Hughes, the Applicant’s daughter. Miss AH is the step daughter of James Hughes, the Applicant’s son. Miss MH and Miss SH are also daughters of James Hughes. Mstr JH, Mstr LH and Miss EB are the children of Katie Hughes.[116]
[116] Transcript, pages 21-23; R1, G12, page 81.
The Applicant submitted that the best interests of the identified children were that the cancellation of his visa be revoked and that significant weight should be given to this consideration having regard to his close relationship with all the children and the negative impact his removal would have on them, noting the negative impact separation has already had on the children.[117] The Applicant contends he has maintained a loving and supportive relationship with all the children since birth and that:[118]
The prospect of lifelong separation for each of them is a server [sic] consequence and will have an enormous impact on their wellbeing. It’s noted these effects cannot be ameliorated through electronic contact such as phone or video calls. The fact that there are 11 children must way strongly for revocation, It’s a significant number and the quality of each relationship is strong and meaningful.
[117] ASFIC, para 18-21; A2, para 33-34; R2, S5, page 71; S1, page 4.
[118] R2, S5, page 71.
The Applicant submitted that while he is not currently providing a parental type role or substantial support there are times in the past where he has done so and he would do so again in the future if the need arose. This is a role of grandparent he could not play if removed and this would be a significant disadvantage to the children’s parents who would lose family support.[119]
[119] R2, S5, page 71.
The Minister accepted it was in the children’s best interests for the visa cancellation to be revoked, the Minister contended this consideration should carry only moderate weight in favour of revocation noting the Applicant does not have a parental role in the children’s lives and is not supporting them financially or practically.[120]
[120] RSFIC, pages 9-10.
The Applicant has provided copies of letters, cards, drawings and puzzles completed by his grandchildren.[121] Ms Hughes, Ms Robertson and the Applicant also gave evidence about the impact the decision would have on the children and their view on what is in the children’s best interests. With respect to all his grandchildren the Applicant claims to have a close and loving relationship with each of them.
[121] R1, G18, 116-117, 119, 121, 124 -136, 139-143, 145-156, 162-163.
While the children have different parents, living arrangements and ages they all share the same familial relationship with the Applicant as grandchildren and the Applicant did not suggest their interests were materially different. However, given the different living arrangements and parents, the Tribunal has considered the interests of the children together as siblings.[122]
[122] Direction no 110 para 8.4(3).
Miss TH and Miss BD
Miss TH and Miss BD the daughters of Crystal Hughes, the Applicant’s daughter. They are 17 and 15 years old respectively. They reside with Crystal Hughes and her husband who fulfill parental roles with respect to them. The Applicant detailed his relationship with the children in his request for revocation noting he had a close relationship with Miss TH who was his first grandchild and with whom he caught up once a week and with Miss BD who he was in contact with 3 or 4 times a week before being incarcerated.[123]
[123] R1, G12, page 83.
Letters from Miss BD to her grandfather record how much she misses him and has plans for activities together on his release.[124] A letter from Miss TH to the Applicant describes how much she misses him and her sadness about their separation.[125] The Tribunal accepts the letters demonstrate a close relationship with the Applicant and reflect the children’s desire to see their grandfather again and to have him remain in Australia to share their lives. Noting their ages and relative maturity, the Tribunal places weight on their views in this regard.
[124] R1, G18, pages 121, 147-148.
[125] R1, G18, pages 155-156.
The Tribunal accepts the Applicant had a close relationship with the children prior to his incarceration, seeing them after, and that he would again if he remains in the community. The Tribunal notes the children are teenagers and there is only a few years (one for Miss TH and three for Miss BD) before they turn 18 in which the Applicant could make a positive contribution to their lives. However, the Tribunal also notes their teenage years are important and challenging and if the Applicant were to remain in Australia and refrain from reoffending there would be opportunities to make a positive contribution to the children’s lives.
There is no evidence that the Applicant’s offending had a negative impact on the children though both express sadness at their separation from him due to his incarceration. There is no evidence that Miss TH or Miss DB has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally or any evidence that they have suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. In this regard the Tribunal also notes the psychologist’s observation regarding the Applicant’s positive relationship with his grandchildren.[126]
[126] R1, G15, page 110.
The Tribunal notes the children have been communicating with the Applicant in writing and by telephone while he has been incarcerated. They would be able to continue to do this were he removed to New Zealand and while the Tribunal considers that they could manage contact by electronic means it accepts that is not a substitute for in person contact.
The Tribunal considers it is in the best interests of Miss TD and Miss BD that the Cancellation Decision be revoked, noting the children’s connection, and that the fact the relationship is non-parental the Tribunal considers that moderate weight should be afforded their interests in the current case.
Miss AH, Miss MH and Mstr SH
Miss AH, Miss MH and Mstr SH are the children of James Hughes, the Applicant’s son. They are 13, 4 and 3 years old respectively. Miss AH is James Hughes step-daughter from his first marriage and since that marriage ended she lives with her mother and has regular contact with her step father and extended family. Both fulfil a parental role with respect to her. Miss MH and Miss SH live with their parents, James Hughes and his second wife who fulfill parental roles with respect to them.
There were no known views of the children before the Tribunal. However, the Applicant described his relationship with each in his request for revocation and the Tribunal accepts they have a close relationship.[127] He notes that he has remained in contact with Miss AH after her parents’ separation contacting her once a week. The Applicant described that Miss MH is selective about who she goes to but will go to him or her parents and gets upset if she doesn’t see him for a few days. Mstr SH is the youngest, gives good hugs and plays trucks.[128]
[127] R1, G12, page 83-84.
[128] R1, G12, page 84.

The Tribunal accepts the Applicant had a close relationship with the children prior to his incarceration, albeit they live outside Perth and that he would again if he remains in the community. The Tribunal notes the children are relatively young and there is a significant number of years before they turn 18 in which time the Applicant could make a positive contribution to their lives.
There is no evidence that any of the children have been, or are at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or have otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally or any evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct. In this regard the Tribunal again notes the psychologist’s observation regarding the Applicant’s positive relationship with his grandchildren.[129]
[129] R1, G15, page 110.
It is not clear how much contact the Applicant currently has with these children. However, the Tribunal considers they would be able to maintain contact if he were removed to New Zealand by electronic means. Though as with respect to their cousins, the Tribunal accepts that is not a substitute for in person contact.
The Tribunal considers it is in the best interests of these children that the Cancellation Decision be revoked. Noting the children’s circumstances, and the fact the relationship is non-parental the Tribunal considers moderate weight should be afforded their interests in the current case having regard to their circumstances and relationships with the Applicant.
Mstr JH, Mstr LH and Miss EB.
Mstr JH, Mstr LH and Miss EB are the children of Katie Hughes, the Applicant’s youngest daughter. They are 12, 9 and 5 years old respectively. The children live with Katie Hughes and her partner who fulfil a parental role with respect to them.
The Applicant described his relationship with each in his request for revocation and the Tribunal accepts they have a very close relationship.[130] He notes that he was present at the birth of Mstr JH who was born with a club foot and required additional support as a child. He describes that they go camping in the holidays and have weekend trips and sleepovers. They currently communicate by mail.[131] The Applicant indicated with respect to Mstr LH that they do activities and Karate together and he suffers from high anxiety. They also go camping and on outings. The Applicant indicates he is in contact with Miss EH most days and she was ‘devastated’ when he missed her 5^th birthday.[132]
[130] R1, G12, page 83-84.
[131] R1, G12, page 83.
[132] R1, G12, page 83.
A number of letters, drawings, puzzles and problems and cards from the children to the Applicant were submitted in support of the application.[133] In one of his letters Mstr LH states he misses the Applicant and can’t wait until he can hug him. He discussed games they play and states he misses camping with the Applicant.[134] Mstr JH writes that he loves and misses his grandad and that when the Applicant gets out he wants to spend every day with him. He includes an award for ‘Best Grandad Ever!’.[135] Miss EH sent drawings to her grandfather. The Tribunal accepts these documents demonstrate the children have a close relationship with the Applicant and wish him to remain in Australia to maintain that relationship and allow them to spend time with him. The Tribunal places weight on their views, noting the boys in particular are old enough to express their feelings on the importance of the relationship to them which they have done in their correspondence with their grandfather.
[133] R1, G18 pages 116-120; pages 124, 128, 129, 130-133, 134-135, 139-140, 141-143, 145, 146, 149, 151-152, 153-154, 162-163.
[134] R1, G18, page 152.
[135] R1, G18, page 125.
The children’s mother gave evidence at the hearing in support of the visa cancellation being revoked. The children’s father also provided a letter of support in the context of the Applicant’s sentencing.R1, G19, page 171. She gave evidence that the children have a strong connection with their grandfather and will be negatively impacted by his removal. She testified:[136]
If my dad was not going to be around, the impact it’s going to have, the toll it’s going to have on my children, myself, my children, you know, I’m here to speak on behalf of my children. It’s going to devastate them. They adore their grandad as much as I do. You know, they, like I said previously, I wish you guys had the opportunity – the door will open, they scream at the top – ‘Grandad, grandad’. They all race to get up to him, first one in for the cuddle. You know? Like the smile on their faces. My little girl, she’s like, the way she explained it to me, ‘Mummy, thank you for taking me to see grandad. It makes my heart so happy’. She’s five. You know? That there says a lot, that, you know, it’s – this has been really hard on my children. It has been extremely hard on them. Sorry, I’m just really trying to not get upset.
….. I just wish I could sum up our life to you in a five minute paragraph. You know, I would invite you to my house any day just to come and have a coffee and just watch my children’s faces. It’s so special to see the bond that they have. It’s a privilege. It’s huge.
[136] Transcript, pages 69-70.
She testified that her ability to take the children to visit the Applicant in New Zealand would be constrained by financial considerations noting she had not been able to afford a return visit there in 10 years.[137] She did not regard remote or electronic contact to be a substitute for her children noting this was different for a child.[138]
[137] Transcript, page 67.
[138] Transcript, page 67.
The Tribunal accepts the Applicant had a close relationship with the children prior to his incarceration. The Tribunal notes the children are relatively young and there is a significant number of years before they turn 18 during which time the Applicant could make a positive contribution to their lives.
Mstr JH and Mstr LH were present when the offending occurred though there was no evidence they were aware of the offence occurring. The Applicant gave evidence the children were disturbed by his arrest and incarceration. One letter from Ms Robertson noted that one of their grandsons is suffering from trauma after he witnessed the Applicant being arrested and put into a police van.[139] Further, the Applicant notes that interaction with the interaction with the Court system would not have been easy for his grandchildren (or the victim).[140] In other material the Applicant noted that:[141]
I have always had my children around me and my children and grandchildren are my life and I'm there's. They have always been affected if I'm not around and are struggling whilst I was in prison and now continued to struggle whilst I'm in the detention centre.
My daughter is looking to find counselling for them. In my mind my family always comes first and always will. At the end of the day I have always strived to be a supportive, caring and law-abiding individual with an exemplary good character with society. My whole life I have been looking after and the caring for children of all ages.
[139] R1, G19, page 165, para 8.4(4)(h)
[140] R2, S1, page 3.
[141] A1, page 2.
He also submitted that the interview with his two grandsons with the psychologist[142] ‘clearly shows the impact it had, and it has continued’.[143] The Tribunal reviewed that document and it indicates the children were aware their grandfather had been arrested as they were in the car when he was pulled over and taken into custody. The transcript indicates they were sad when this occurred and that Mstr JH was scared as they were left alone with the police until their mother arrived.[144] There is no further evidence relating to the impact of the Applicant's arrest on any of the Applicant's other grandchildren.
[142] A7
[143] ASFIC at [20].
[144] A7.
While there is some evidence the two boys who were present for the Applicant’s arrest may have been negatively impacted by the events surrounding the offence, there is no evidence that any have been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or have otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally. In this regard the Tribunal again notes the psychologist’s observation regarding the Applicant’s positive relationship with his grandchildren.[145]
[145] R1, G15, page 110.
The Applicant maintains regular contact with the children in writing and by electronic means. The Tribunal considers they would be able to maintain contact he were removed to New Zealand through similar means and while the Tribunal considers that given their ages the children could manage contact by electronic means it accepts that is not a substitute for in person contact. The Tribunal accepts the children have expressed a strong desire to have regular in person contact with their grandfather as they have had in the past.
The Tribunal considers it is in the best interests of these children that the Cancellation Decision be revoked but considers that the fact the relationship is non-parental lessens the overall weight to be given to this consideration. The Tribunal considers moderate weight should be afforded to their interests in the current case.
Conclusion on best interest of children
The Tribunal finds noting its findings above that the best interests of all the grandchildren is that the cancellation be revoked. Noting the findings above, the Tribunal affords moderate weight to the consideration.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction no. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’. Relevantly, para 8.5(2)(c) provides that those crimes which are viewed very seriously by the Australian government and the community include:
commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Tribunal considers this is the case for the Applicant where his offending is properly characterised as offending falling within para 8.5(2)(c) and is considered very serious conduct and subject to the normative expectation that he would not be allowed to remain in Australia.[146] Those expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[147]
[146] Direction no.110 para 8.5(1) and 8.5(2).
[147] Direction no.110 para (3).
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
Noting the very serious nature of the offence for which the Applicant was convicted and the priority placed on protecting the community, and in particular its children, from harm, the Tribunal finds that the primary consideration in paragraph 8.5 of Direction no. 110, being the expectations of the Australian community, weighs heavily against revocation in the Applicant’s circumstances.
Other considerations
Paragraph 9 of Direction no. 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[148]
[148] Direction No 110 para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[149]
·Refusal of other visa applications and cancellation of other visas;[150]
·A prohibition on applying for other visas;[151] and
·Periods of exclusion and special return criteria may apply.[152]
[149] Migration Act ss 189, 196, 197C, 198.
[150] Migration Act s 501F.
[151] Migration Act s 501E.
[152] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[153] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[154]
[153] Migration Act s 15.
[154] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Applicant did not raise any fears or concerns regarding his return to New Zealand or the United Kingdom other than those relating his separation from family and friends in Australia and the impact this would have on his grandchildren, children and partner. He indicated he would be returning to New Zealand if the cancellation was not revoked.[155]
[155] Transcript, page 26.
While the Applicant raised some concerns about returning to New Zealand he did not raise any claims to be owed protection either on refugee or complementary protection grounds.
In the Tribunal’s view, on the information before it, the Applicant’s circumstances are not such as would suggest a non-refoulement claims arise with respect to the Applicant’s return to New Zealand.[156]
[156] Direction No 99 para 9.1(3).
While this consideration in Direction No.110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[157]
·Refusal of other visa applications and cancellation of other visas;[158]
·A prohibition on applying for other visas;[159] and
·Periods of exclusion and special return criteria may apply.[160]
[157] Migration Act ss 189, 196, 197C, 198.
[158] Migration Act s 501F.
[159] Migration Act s 501E.
[160] Migration Act s 503, special return criteria (SRC) 5001.
Where a visa application is refused or a visa is cancelled under s 501, any other non-protection visa held by that person is taken to have been cancelled.[161] Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[162] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable.[163]
[161] Migration Act s 501F.
[162] Migration Act s 15.
[163] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful: at [112]-[122].
Under s 501E of the Migration Act, a person cannot apply for another visa while they remain in Australia if:
·They have been subject to a visa refusal or cancellation under s 501; and
·The decision has not been set aside or revoked prior to their making the visa application.
Such an application is not a valid application for a visa.[164] The only exceptions are an application for a protection visa or a visa specified in the Regulations (i.e. reg 2.12AA).[165] There are limited visas specified under those Regulations.
[164] Migration Act s 46(1)(d).
[165] Migration Act s 501E(2).
Certain visas are subject to Special Return Criteria (SRC). For the visa subclasses to which SRCs apply, the SRC is prescribed in Schedule 2 to the Regulations as a criterion for visa grant. SRC 5001(c) provides for permanent exclusion if the visa Applicant has previously had a visa cancelled under s 501 and there was no revocation of the decision under s 501CA. There is no provision for a visa Applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion.
The Tribunal considers these legal consequences of the decision reflect the intended operation of the cancellation regime and weigh neither for not against revocation. Accordingly, the Tribunal affords this consideration neutral weight in the Applicant’s case.
Extent of impediments if removed

Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
As noted above, the Applicant is a citizen of both New Zealand and the United Kingdom but has indicated he would return to New Zealand if his visa remains cancelled. While the Minister made submissions with respect to both countries the Applicant did not suggest he would consider return to the United Kingdom noting among other things that his partner, children and several of his grandchildren are New Zealand citizens and that is the country where he has spent the majority of his life. As the Applicant did not make any representations with respect to the United Kingdom the Tribunal has not given further consideration to the extent of impediments were he to choose to be removed to that country.
The Applicant is aged 58 years old. He moved to New Zealand as a young child.[166] He lived in New Zealand until he moved to Australia permanently in late 2014 when he was in his late 40s. His three children were born and raised in New Zealand before moving to Australia as adults prior to the Applicant’s relocation here. He and his partner, Ms Robertson, met in New Zealand. They both trained and worked as teachers in New Zealand. Ms Robertson moved to Australia to join the Applicant in 2016, after the death of her father who she had remained in New Zealand to care for following the Applicant’s relocation to be closer to his children and their families.[167] Her three children and all but one of her grandchildren live in New Zealand.
[166] R1, G12, page 89.
[167] A1.
The Applicant contended that if he was returned to New Zealand he would have no family support, no job and no accommodation. He summarised these concerns before the Tribunal as follows:[168]
As I said before, obviously when I – if I’m deported back to New Zealand, there’s nothing. I’ve got – obviously I’ve exhausted all financials over here. I’m going back with nothing. No money. Nothing. Starting – no family. No support. Nowhere to live. And as far as Susan’s, my partner’s children, without going into their personal details, they’ve got a lot of issues that’s going on over there for them and her son is actually seeing a psychiatrist as well. Emotional support for me would destroy them.
And her daughter, as I said, is again – even though she’s a lovely girl, there’s no way I could put my problems or my – I need that support but they’re not strong enough to give that. They’re not strong enough, themselves, to do that. And that was mentioned by Susan yesterday. She did say that her children are going through a lot. Her son’s – he won’t appreciate me saying this but her sons is, you know, suicidal, so I can’t put any more pressure on him. Her daughter is going through relationship problems. So emotional support is not going to be there. It would be a, ‘Hello.’
As she said, her daughter’s thinking about coming to Perth for support from her mum, and hopefully me as well. And her son’s thinking about going to Brisbane. So, yes, so that’s non-existent. And that should be given a lot more weight of me staying here, because there is literally nothing in New Zealand.
[168] Transcript, page 90.
The Applicant’s circumstances and concerns about his return to New Zealand were discussed at the hearing.[169]
[169] Transcript, pages 27-32, 35-36, 90.
The Minister contended that the Applicant did not face any substantial impediments if removed in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand or the United Kingdom.[170] The Minister submitted that the medical care in New Zealand would be of a similar standard to the standard found in Australia and that there were no language or cultural barriers.[171] Further, the Minister contended that the Applicant lived the majority of his life in New Zealand, including studying a degree in education and raising his three children as a single father and while he may face some practical and financial difficulty in re-establishing himself in New Zealand he has transferable skills and vocational knowledge which would assist in re-establishing himself there. The Minister conceded that the Applicant may face emotional hardship due to being separated from his social ties here however the Minister contended that the extent of any impediments he faced in the long term will be limited. Further, there was no evidence that suggests that there are any circumstances that would prevent the Applicant's partner from moving to New Zealand should the Applicant be returned. Accordingly, the Minister contended that limited weight should be afforded this consideration in favour of revocation.
[170] RSFIC, pages 12-13.
[171] RSFIC, page 12 citing VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 94 (at [428]).
Information before the Tribunal suggests the Applicant has been diagnosed and treated for Type 2 diabetes, carpal tunnel syndrome, high cholesterol (controlled), major depression (in remission) and post-traumatic stress disorder (PTSD).[172] He has a history of back issues but did not report those as current conditions.[173] The Applicant attended sessions with a psychologist in the community from 2 March 2023 to 9 June 2023[174], attended session with a counsellor in prison every two weeks and had seen a counsellor twice in detention.[175]
[172] R2, S12, page 155-158; R1, G12, page 88; Transcript, pages 29-33.
[173] R2, S12, page 155-158; Transcript, page 30.
[174] G15, page 109.
[175] Transcript, pages 31-32.
The Tribunal accepts that the Applicant will suffer emotional distress as a result of removal and ongoing separation from his family members. While it is evident he has some family connections in New Zealand through his partner of 22 years, the Tribunal accepts that network may be unable to offer him support to re-establish himself in New Zealand. The Tribunal also accepts that the Applicant’s has a range of health issues requiring ongoing support. However, there is no evidence that medical supports, including mental health supports of the type he has been accessing in Australia, would not be available to the Applicant in New Zealand. The Tribunal considers he would have the same access as other citizens to supports for these needs in New Zealand and that those supports are likely to be of a similar kind to those available to him in Australia. [176]
[176] Webb v Minister for Home Affairs [2020] FCA 831 at [100]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
The Tribunal considers there is nothing in the information available to it to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances, including mature age, work experience, familiarity with New Zealand and lack of language or cultural barriers in that country. The Tribunal accepts in this regard that he may need to undertake some retraining or accreditation with respect the professional qualifications he obtained in prison in Australia.[177] The Tribunal accepts the Applicant may have better immediate prospects for employment in Australia for this reason but does not accept on the evidence that this would impede avenues for employment in that country in the longer term. The Tribunal accepts that the Applicant’s convictions would prevent him engaging in activities involving children including as a teacher and that this requires him to seek employment in fields other than those in which he was previously employed in New Zealand. However, this challenge is one anticipated by the Applicant for Australia and New Zealand and is the reason he has undertaken reskilling in prison and made plans for potential avenues for self-employment.[178] The Tribunal does not regard this as a significant impediment if removed.
[177] Transcript, pages 27-28.
[178] Transcript, pages 17-18.
The Tribunal accepts that the Applicant is likely to face significant emotional hardship with respect to his separation from family members in Australia if returned to New Zealand. In this regard the Tribunal notes that the Applicant’s partner and children are New Zealand citizens as are a number of his grandchildren. While it would be open to these family members to settle in that country if they chose, it is unlikely that his children would do so having established lives in Australia. Taking account of this, the Tribunal accepts the separation from his family is likely to be lengthy.
With respect to the Applicant’s partner, the Tribunal accepts she does not want to return to New Zealand and that financially it may be difficult for her to do so until she obtained work there. However, in evidence before the Tribunal Ms Robertson did not rule out returning to New Zealand but spoke of the difficulties with doing so as their life and support network was in Australia.[179] In response to the question of whether she would go to New Zealand with the Applicant if he were returned she said:[180]
That’s a hard – it would be a long time before I could get there. Sorry. But – sorry. Everything is here. Our friends are here. The family is here. Grandchildren that adore their grandfather. We’ve made a life here. I love my school. To go back to New Zealand is going back, just going so way back. And I understand that you have to – sorry.
….
Everything is here. Everything. We’ve been good citizens. We’ve been fantastic teachers. And we’ve contributed well. And I still contribute well to Australia. Australia is home. And to send him back to nobody, that’s cold. For all that he has gone through he still tries to support us where he is. Sorry. I didn’t want to get upset.
…I don’t know what more to say. I really don’t. But we’re all here. And he’s got so much support here. His support is here. My kids cannot offer Mike – I’m sorry, Mike – but my kids can’t offer you their support.
[179] Transcript, pages 59-60.
[180] Transcript, pages 59-60.
She also gave evidence her children were thinking of relocating to Australia themselves. This was consistent with the Applicant’s evidence that it would be difficult for his partner to move, noting she was settled and had employment here and their financial situation was difficult.[181] The Tribunal considers that while Ms Robertson may suffer financial and emotional hardship if she returns to New Zealand, this is an option available to her which she has indicated she is prepared to consider. The Tribunal does not consider this a significant impediment to removal.
[181] Transcript, pages 35-36.
Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself were he to return to New Zealand but does not regard these difficulties as significant impediments to the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The Tribunal finds that the extent of impediments if removed weighs in favour of revocation but that only slight weight is afforded to this consideration in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.3(1) of Direction no. 110 states:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact Australian business interests.
The Minister contended that the consideration was not relevant in the Applicant’s circumstances and should be afforded neutral weight. The Applicant agreed with this contention.[182]
[182] Transcript, page 90.
The Tribunal considers this consideration should be afforded neutral weight.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[183] Relevantly, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[184] While the Court was considering Direction No 90, it’s observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[185]
[183] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[184] [2023] FCAFC 138.
[185] At [35].
The Applicant contended the weight applied by the Delegate to various considerations was erroneous. The Tribunal has considered those submissions and in undertaking its review has ascribed weight to the relevant considerations consistent with its findings and the guidance provided by the Direction.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation, and the Tribunal affords the consideration heavy weight against revocation in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds moderate weight should be afforded that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision, the Applicant’s grandchildren, weigh in favour of revocation. Overall, the Tribunal considers moderate weight should be afforded this consideration in the Applicant’s circumstances.
The expectations of the Australian community, weighs against revocation and the Tribunal finds this consideration should be afforded heavy weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision weighs neutrally in the Applicant’s case. The extent of impediments if removed weigh slightly in favour of revoking the cancellation of the Applicant’s visa. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further, para 7(2) provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[186] Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other consideration of the extent of impediments if removed.
[186] Direction no.110 para 7(2)
The Tribunal acknowledges the impact this decision will have on the members of the Applicant’s family and friends who are convinced he is innocent of the very serious offence for which he was convicted. For the reasons outlined in this decision the Tribunal is satisfied it must, and should, proceed on the basis that the Applicant is guilty of that offence in accordance with the factual findings on which his sentence was based.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the decision under review.
DECISION
The decision of the delegate dated 11 June 2024, not to revoke the mandatory cancellation of the Applicant’s Skilled Independent (Class SI) (subclass 189) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 199 (one hundred and ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Burford

..........................[Sgd]...................................
Associate
Dated: 5 September 2024

Date of hearing: 20 and 21 August 2024

Applicant: Self-Represented

Solicitors for the Respondent: Mr J Djasmeini, Minter Ellison

Date of hearing:	20 and 21 August 2024
Applicant:	Self-Represented
Solicitors for the Respondent:	Mr J Djasmeini, Minter Ellison