Hung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] ARTA 291

Hung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 291 (19 November 2024)
Applicant/s:  Yu-Wei Hung
Respondent:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number:                2024/6517

Tribunal:General Member Cipolla
Place:Sydney
Date:19 November 2024

Decision:The Tribunal affirms the decision under review.

..........................[SGD].............................................
General Member Cipolla
CATCHWORDS
MIGRATION – mandatory cancellation of Applicant’s Class TU Subclass 500 Student Visa under section 501(3A) – where Applicant does not pass the character test - very serious offending – possess/control child abuse material – whether discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No 110 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 500(1)(ba), 501(2), 501(6)(a), 501(7)(c), 501(3A), 501(4)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pavey and Minister for Home Affairs [2019] AATA 4198
SECONDARY MATERIALS
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons
Background

Mr Yu Wei Hung (the Applicant) is a 23-year-old man who was born in Taiwan and is a citizen of Taiwan. The Applicant is an only child, and he came to Australia with his parents in July 2016.
At the time of his offending, Mr Hung was in Australia as the holder of a temporary visa, a Subclass 500 Student visa.
The evidence before the Tribunal indicates that the Applicant completed his secondary education in 2019 and that since that time, he had been studying a degree in engineering, at the University of Newcastle.
The evidence also indicates that the Applicant’s mother passed away from cancer in 2019.
OFFENDING BACKGROUND
The evidence indicates that the Applicant’s first incidence of offending related to a charge of wilful and obscene exposure. On 29 June 2022, the Applicant was approached by the police with respect to an offence of obscene exposure committed by him whilst he was a passenger on a train. At the time of the offence, the Applicant was holding a black mobile phone. When police questioned the Applicant for the reason for his engagement in such behaviour he responded, “honestly I don’t know” “it was bad” “didn’t know it was against the law.” Police asked to see the mobile phone in the Applicant’s possession and observed it had a browser open displaying pornography. The Applicant was asked whether he was viewing pornography and the Applicant responded, “not this time.”
The Applicant’s black mobile phone was seized by police and the pin number for the phone was obtained by the police. This led to the police, in due course, serving a warrant on the Applicant to search another mobile and other data storage devices in his possession.
With respect to this incident on the train, the Applicant was charged with obscene exposure, to which he pleaded guilty in the Local Court of NSW on 21 July 2022, and was placed on a 9-month Community Release Order without a conviction being recorded.
The evidence indicates that, upon arrest for the incident on 29 June 2022, Police seized two mobile phones — one on the Applicant’s person and another found in the Applicant’s backpack. Both phones were later found, following forensic examination, to have contained a large amount of child abuse material. The evidence further indicates that, on 8 July 2022, Police executed a search warrant at the Applicant’s premises, where a search of the premises resulted in multiple electronic devices, including the Applicant’s hard drive, being seized. Forensic examination of the devices seized found a substantial amount of child abuse material stored, with approximately 4.34 terabytes of the material stored on the Applicant’s hard drive.
The evidence before the Tribunal indicates that, as a consequence of being in possession of child abuse material, the Applicant was charged with a number of offences. The evidence with respect to these offences indicated that, between 29 June 2022 and 8 July 2022, at Turramurra and elsewhere in the State of New South Wales, the Applicant possessed and controlled material, being child abuse material, in the form of data that was held on his computer, or contained in data storage devices consisting of his two mobile iPhones and one hard drive. The evidence indicates that the Applicant used a carriage service to obtain or access that material.
The evidence before the Tribunal indicates that the Applicant’s devices were the subject of a forensic examination that identified various user accounts linked to his phone. Indeed, forensic examination of the Applicant’s media devices revealed approximately 20,129 images and approximately 1651 video files. Police estimated that 70 to 80% of the images and videos found on the devices was child abuse material.
DISTRICT COURT SENTENCING DECISION AND PSYCHOLOGICAL ASSESSMENT
Reference to the sentencing comments of the District Court made by Judge Marian on 14 September 2023 indicates that, with respect to the Applicant’s black mobile phone, “the police allege that approximately 15,000 of the images depict child abuse material. The images depicted prepubescent male and female children involved in, and performing, sexual acts upon other prepubescent children or adults. Police allege that the age of the youngest child depicted in the material was around five years of age.”
With respect to the Applicant’s white mobile phone, forensic examination indicated approximately 32,725 images and approximately 81 video files. Judge Marian’s sentencing comments refer to the fact that the Applicant’s browser history included a number of disturbing searches such as ‘Rape Tube’.
The District Court sentencing decision further indicates that a hard drive was seized from the Applicant’s premises on 8 July 2022. As noted above at paragraph [8], this amounted to 4.34 terabytes of data, containing 73,759 pictures and clips and 124 videos. The comments noted that police estimated approximately 80 to 90% of the images contained in the hard drive were with respect to child abuse material. A lot of the material, which was the subject of forensic examination, indicated adults engaging in sexual conduct with children between the ages of 2-5 years old.
Judge Marian noted that, with respect to this type of offending, “the offence of possessing or controlling child abuse material, by accessing or obtaining that material via the internet, is regarded by both the legislature and community as an offence of great seriousness.”
Judge Marian made reference to the comprehensive psychological assessment undertaken of the Applicant by psychologist, Ms Anita Duffy, and referred in his sentencing decision extensively to Ms Duffy’s report dated 26 July 2023.
Judge Marian noted the following with respect to Ms Duffy’s assessment.
The Applicant told Ms Duffy that, since he has been in custody, he has been on a waiting list to see a psychologist to talk about the anxiety that he has experienced in prison and to improve his communication skills. The Applicant reported to Ms Duffy that he recalled engaging with a counsellor in China when he was about 12 to 13 years of age and that he had always been anxious in the company of other people, hated loud noise, was a poor communicator and never formed friendships. The Applicant told Ms Duffy that he avoided going to parties and social events because they made him feel uncomfortable. The Applicant told Ms Duffy that he avoided the stress of trying to communicate with others and that he lived a largely solitary existence.
The Applicant told Ms Duffy that he believed he may have been addicted to viewing child abuse material and that some of the contents of this material became more extreme and violent as he grew older. Ms Duffy reported that the Applicant expressed no interest in children but did admit that the content that he downloaded had escalated into “quite dark areas.”
Judge Marian noted in his sentencing decision that, despite the Applicant being reported as saying to Ms Duffy that he did not have sexual interest in children, when he was giving evidence in the District Court under oath, he agreed that he did have sexual interest in children.
Judge Marian noted that Ms Duffy found the Applicant had an addiction to online gaming as well as pornography. Indeed, Ms Duffy stated that the Applicant showed little insight into his addiction to pornography.
Judge Marian noted that Ms Duffy, in assessing the Applicant, had administered the Beck Anxiety Inventory Assessment to measure the Applicant’s current level of anxiety, which at the time of her report, was in the moderate to severe range. The Applicant expressed to Ms Duffy that he reported feelings of nervousness, hand trembling, unsteadiness, inability to relax, heart palpitations, fear of losing control, and a fear of the worst happening. The Applicant conveyed to Ms Duffy that he experienced these fear responses when he was outside his cell in view of other prisoners.
Judge Marian noted that Ms Duffy, in assessing the Applicant on the Autism Spectrum Quotient, found that the Applicant was well above the cut-off point indicative of clinically significant autism traits. Ms Duffy reported that the Applicant met the relevant diagnostic criteria for Autism Spectrum Disorder (ASD). Ms Duffy in her report at paragraph 43 made reference to the fact that “individuals with ASD may be unaware of the legal implications in the use of child abuse material and be impaired in recognising facial expressions such as fear.”
Judge Marian noted that Ms Duffy, in her report, opined that, after applying the Child Pornography Offender Risk Tool (CPORT), the Applicant was at a relatively low level of reoffending. Ms Duffy expressed, having regard to the Applicant’s risk factors ,that he was unlikely to pose a risk for contact sex offences. Ms Duffy opined that the Applicant needed to address dynamic risk factors related to his ASD, which included intimacy deficits, sexual self-regulation, skills to enhance social interactions, training and empathy and strategies to manage anxiety associated with social activity.
Judge Marian noted in his sentencing decision with respect to the Applicant that “I should say at the outset that he impressed me in his evidence as doing his best to be honest and truthful. He did not appear to seek to obfuscate or prevaricate in answering questions. He gave direct answers, often very much against self-interest. I am satisfied that in his evidence he displayed now considerable insight into his offending and the factors that brought it about, and most importantly, that he now has insight into the fact that this offending was morally wrong and causes harm to the children who are exploited in the production of this material. The fact that he now has that understanding and realisation I think is important in taking into account and assessing his prospects of rehabilitation.”
Judge Marian noted in his sentencing decision that “as I have said, I found the offender to be a most impressive witness in the sense that he answered questions directly without seeking to place blame elsewhere. I found him a credible witness and I can see no reason why I would not accept that the evidence he gave that he did not think about the moral wrongness of his offending at the time that he committed the offence. However, he agreed candidly and frankly in evidence, that he knew it was illegal, because he had become aware of that through what he had seen in the media.”
Judge Marian noted at page 20 of his sentencing decision that the Applicant “said in evidence, and this was referred to very fairly by the Crown in submissions, that he admitted that he still sometimes thinks about his sexual interest in children.”
Judge Marian noted that the Applicant gave evidence that when he was released from custody he would like to return to study and that he would like to seek further help with respect to his past offending behaviour.
Judge Marian also referred more extensively to evidence provided by Ms Duffy at the sentencing hearing. Judge Marian noted that Ms Duffy “came to give evidence before me in circumstances where I sought clarification of part of her report and raised that with counsel, in particular that part of her report where she states that the symptomatology that research has shown that offenders committing online child pornography access offences who suffer from ASD that there has been found on(sic) research to be a causal connection between the ASD and the offending.”
Judge Marian noted Ms Duffy stated in her report “that having obsessive ideas and activities as part of the autism spectrum that it can coexist with compulsive disorders.” Ms Duffy made reference in her report to there being an association between repetitive and ritualistic behaviour in autism and that the extent and quantity of child pornography collected by the Applicant could be directly related to these autistic traits. Ms Duffy in her evidence in the District Court also identified the Applicant’s social anxiety arising from difficulties in socialising due to his ASD as being another contributory factor with respect to his offending.
Judge Marian concluded based on the evidence before him and the evidence that the Applicant provided to Ms Duffy during her assessment that the Applicant “is genuinely remorseful and contrite for his offending.”
Judge Marian noted that on the day that police executed a search warrant with respect to accessing the Applicant’s devices and laptops that he was fully cooperative with the police.
Judge Marian noted that “taking into account the undisputed opinions expressed by Ms Duffy, to which I have referred, and, indeed, to the evidence of the offender himself before me, I am satisfied that at the time of the offence the offender was suffering from a significant mental impairment, namely, ASD, such that it reduced his moral culpability in the commission of the offence. I am also satisfied that there was a close causal connection between that mental impairment and his offending.” Judge Marian noted that these findings called for the exercise of sensitive sentencing discretion.
Judge Marian noted that “the risk of reoffending and prospects of rehabilitation are separate, but related, and overlapping concepts. I take into account that Ms Duffy’s opinion is that he is at the low risk of reoffending. I take into account his genuine remorse, is particularly expressed in his evidence before me, and the considerable insight he demonstrated in evidence before me that he now has into the moral wrongness of his offending. I take into account, as I have said, that in his evidence before me he was candid and frank as to the nature of his offending. He did not seek to deflect blame in the evidence that he gave. In his evidence he expressed, which I accept, a firm commitment and desire to seek help to address his issues of social anxiety and isolation and the symptomatology of his ASD, all of which I am satisfied played a significant role in his offending. I am of the view that the offender has a very favourable prospect of rehabilitation and that he is unlikely to reoffend.”
Judge Marian concluded that “clearly, with his mental health issues, his anxiety issues and his clear need for supervision and professional assistance upon his release from custody it is appropriate there be an extended period of supervision in the community whilst still subject to the sentence.”
APPLICANTS STATEMENT OF FACTS, ISSUES AND CONTENTIONS AND SUPPLEMENTARY DOCUMENTS
The Tribunal received, and has duly considered, the material in the Applicant’s tender bundle which included the Statement of Facts, Issues and Contentions, (SFIC) and included a range of supplementary source material which the Tribunal has closely considered.
The source material included reports pertaining to the quality of life and associated medical costs for persons suffering with Autism Spectrum Disorder in Taiwan and in China. The documents included an editorial pertaining to appropriate care pathways and services addressing the complex nature of autism published on 13 April 2023 in the journal, Frontiers in Psychiatry. A paper titled Urban and Education Disparity for Autism Spectrum Disorders in Taiwan Birth Cohort Study dated 7 December 2016 in the Journal of Autism Development Disorders. An article titled Understanding Autism in Taiwan and Thailand Insights for Practitioners. Documents pertaining to social security benefits and provisions for persons suffering with autism in Taiwan. An unsourced article titled How Criminal Records Hold Back Millions of People. An article from the Institute for Research on Labour and Employment from UCLA dated July 2020. An article titled Criminal Records as Barriers to Employment from the National Institute of Justice Journal (undated). An article titled The Disparate Impact of Criminal Background Checks in Hiring Criteria (unsourced and undated). The tender bundle also included the Applicant’s clinical records from Villawood immigration detention centre.
The SFIC refers to the respective issues in the review. The submission notes that the Tribunal may revoke the original decision if the person responds to the invitation to make representations; and the Tribunal is satisfied that either, the person passes the character test or there is another reason to revoke the original decision. The submission notes that the Applicant made representations for the purposes of s.501CA(4)(a) and that this jurisdictional fact is met. The submission concedes that, given the Applicant’s criminal record in Australia, he does not pass the character test for the purposes of s.501 of the Act. The submission notes that “the determinative issue in these proceedings is whether the Tribunal forms the requisite state of satisfaction regarding whether there is another reason to revoke the cancellation decision.” Further to this that “the Tribunal would need to form the requisite state of satisfaction that there is another reason to revoke the cancellation decision. The Tribunal, of course, is bound by Direction 110 in these proceedings, given the statutory objective s.499 of the Act.”
The submission makes the following contentions with respect to the relevant considerations in Direction 110.
With respect to the ‘Protection of the Australian Community’, reference is made to the Applicant’s criminal record in June 2022 and July 2022 noting that the offending is of a very serious nature as it involves sexual crimes specifically related to child abuse material. The submission notes that “the Australian government and the Australian community view such crimes as abhorrent, and that the impact on victims is profound.”
The submission notes that, in September 2023, the Applicant was convicted of possessing and controlling child abuse material using a carriage service and that, as a consequence, the Applicant was sentenced to 2 years of imprisonment, which is indicative of the gravity of his crimes. The submission notes that the materials found in the possession of the Applicant were disturbing and explicit in their content and involved prepubescent children. Reference is made to the scale of the offending, noting that the Applicant had, in his possession, tens of thousands of explicit images and videos which the submission notes “underscores the severity and unacceptability of the conduct.”
The submission notes that a forensic examination of the Applicant’s mobiles and computers indicated an enormous amount of child abuse material that included 73,759 pictures and 124 videos. The submission notes that this material involved prepubescent males and females engaged in explicit sexual acts with adults and also with other children. The submission notes not only the seriousness of the crime but also the substantial harm inflicted on the children depicted in the content.

With respect to previous criminal conduct, the submission notes that the Applicant had a prior conviction dated 21 July 2022, for wilful and obscene exposure in a public place for which the Applicant was issued with a Conditional Release Order. The submission notes that the 2023 offences along with the 2022 offence “suggests a pattern of objectionable and sexually deviant behaviour, raising concerns about repeated offending.”
The submission makes reference to the sentencing judges’ comments during the sentencing process which were reflective of the seriousness of the offending. The sentencing judge noted that this type of offending was taken seriously by both the legislature and the community. The sentencing judge noted that the Applicant’s conduct made a contribution to the exploitation and harm of children, reinforcing the need for substantial punishment. The submission notes that the two-year sentence imposed on the Applicant was reflective of the seriousness of the offending. The submission notes the sentencing judge stated that the volume and nature of the child abuse material, along with the Applicant’s prior offence, necessitated significant weight be placed on the criminal sentencing hierarchy with respect to the offence. The submission notes that there were no specific victim impact statements in this case. The submission notes that the offending from over 2022 marked an escalation in the offending and a worsening pattern of behaviour. The submission notes the Australian government has a strong interest in the protection of the Australian community and that the offending was indicative of the Applicant not passing the character test. The submission notes that in addressing relevant policy considerations, that decision-makers need to evaluate the nature of the Applicant’s past offending conduct and then weigh the potential risk of future harm against the government’s stated position on community protection. The submission notes that this tolerance for risk decreases as the seriousness of potential harm increases. The submission notes that the implementation of this policy “is designed to protect not only individual but also groups and institutions within the Australian community.”
The submission notes that, based on the assessment of a forensic psychologist Ms Duffy, the Applicant is no more than a ‘low risk’ of reoffending. The submission posits that the professional opinion provided by Ms Duffy should be given significant weight in evaluating the Applicant’s potential future behaviour. Ms Duffy opines, after an assessment of the Applicant, she formed a view that the risk of him engaging in further criminal conduct was minimal.
The submission notes that the cancellation of the Applicant’s visa, coupled with the time the Applicant has spent incarcerated in prison and in immigration detention, has had a profound impact on the Applicant. During that period, the Applicant has been able to closely reflect on the gravity and nature of his criminal conduct and that the period of incarceration has served as a deterrent against future offending. The submission notes that the Applicant is acutely aware of the consequences of his offending behaviour with respect to his ongoing immigration status and indeed with respect to his overall life circumstances.
The submission notes that the Applicant has expressed genuine remorse for his past criminal conduct and that remorse is critical to the Applicant’s reform and rehabilitation. The period of incarceration has allowed the Applicant to reflect on his past behaviour and has led to an appreciation of the importance of lawful and moral conduct within the Australian community.
The submission notes that, despite the fact that the Applicant may not have completed formal rehabilitative courses, there should be no delay in decision-making to allow for such programs to be undertaken. The submission notes that the low risk of reoffending, and the deterrent effect of past consequences, are indicative of the Applicant’s commitment to avoid future criminal behaviour.
The submission notes that the Applicant is acutely aware that any future criminal conduct could result in a further visa cancellation or lead to other serious consequences, and that these factors all serve as a deterrent against reoffending. The submission notes that weight should be apportioned to Ms Duffy’s professional assessment of the Applicant presenting a low risk of reoffending. The submission notes that, overall, this primary consideration weighs against the Applicant.
The submission notes that with respect to the family violence committed by the-noncitizen, this primary consideration has no relevance in the current proceedings.
With respect to the strength, nature, and duration of ties to Australia, the submission notes that the following considerations apply. Firstly, that the Applicant has resided in Australia for 7 years, moving to Australia as a young adult at age 15. The Applicant completed his secondary high school studies and commenced higher education in Australia, which is indicative of his ties to Australia. The Applicant’s father resides in Australia and currently holds a student visa. The submission notes that the decision to cancel the Applicant’s visa would undoubtedly have a significant impact on the Applicant’s father. The submission notes that “as primary caregiver for significant emotional support for Mr Hung, the father-son bond should be afforded substantial weight, particularly since family unity is a core consideration in these matters. The lack of restoration of the Applicant’s visa would result in hardship for his father who would experience emotional distress due to the separation from his son.”
The submission notes that the Applicant’s pursuit of education in Australia, now at a tertiary level, is indicative of the Applicant’s efforts to integrate into the Australian community, and demonstrates the potential for future contributions by the Applicant to employment and further academic study.
The submission notes that this consideration states that Australia would generally afford a high level of tolerance for criminal or other serious conduct by a non-citizen, if that person had lived in Australia for most of their lives, or from a very young age. The submission notes that, despite the fact the Applicant arrived in Australia as a teenager, the lengthy period the Applicant has resided in Australia, along with the fact that these were his formative years, should be considered favourably, and posits that the Applicant’s social and emotional development has largely taken place within the Australian community.
The submission notes overall that the Applicant’s ties to Australia primarily revolve around his father, along with the fact that his 7-year period of residency in Australia occurred during the Applicant completing key stages of his secondary education and then embarking on his tertiary education. The submission contends that these factors demonstrate the Applicant having meaningful connections to the Australian community and posits that this primary consideration weighs in the Applicant’s favour.
With respect to best interests of minor children in Australia, the submission notes that this primary consideration is not relevant in the review.
With respect to expectations of the Australian community, the submission notes the following. Firstly, the Australian community expects non-citizens to obey the law and if a non-citizen engages in serious misconduct or poses an unacceptable risk, the Australian community expectation is that the government would refuse entry or cancel a person’s visa. The submission notes that this includes offences such as serious crimes against vulnerable groups.
The submission notes that secondly, the Applicant’s engagement in criminal offending in Australia was in clear contravention of community expectations and that his offending involved a vulnerable group in the community, being children. The submission notes that, overall, this primary consideration weighs against the Applicant.
With respect to the legal consequences of the decision, the submission makes reference to two of the possible consequences, namely a) permanent exclusion from Australia, and b) ongoing immigration detention until removal from Australia in accordance with s.198 of the Migration Act.
The submission notes that permanent exclusion from Australia, as a consequence of cl. 5001 in Schedule 5 of the Migration Regulations 1994, is a matter of significant gravity. The submission notes that, whilst awaiting removal from Australia, the Applicant will be deprived of his personal liberty.
The submission notes the extent of impediments if removed. It states that firstly, the Applicant, who meets the diagnostic criteria for Autism Spectrum Disorder (ASD), could have difficulty in adapting to new environments and navigating complex social and cultural situations, particularly if he is removed from Australia to Taiwan. Furthermore, the Applicant’s ASD could hinder his ability to re-establish himself independently in Taiwan. The submission notes the specific treatment for ASD in Taiwan is not as accessible as it is in Australia.
The submission notes that the Applicant has expressed concerns about the availability of specialised treatment for ASD in Taiwan and that the concerns are well-founded for a number of reasons.
Firstly, there are gaps in medical care for individuals with ASD in Taiwan. There is insufficient manpower to meet the needs of the increasing population of individuals with ASD in Taiwan. The evidence indicates that the quality of life for adults with ASD in Taiwan is lower than that of the general population. The submission posits that, cumulatively, these considerations mean the Applicant is likely to face impediments in receiving the necessary care, treatment, and support for his ASD if he were removed to Taiwan.
The submission notes that the Applicant has, apart from his ASD, other serious health issues including an anxiety disorder and avoidance behaviour and that he had been seen by psychiatrist, Dr Philip O’Rourke, on 1 December 2023 with respect to these conditions. The submission notes that, as a consequence of the Applicant’s anxiety, he has remained isolated whilst incarcerated. The Applicant has limited social and interpersonal skills, which raise concerns about his vulnerability in the detention environment.
Point 58 of the submission indicates that Dr O’Rourke “noted the Applicant’s potential autism traits and suggested formal testing for ASD and ADHD in the future. The plan includes providing a safe space for psychological exploration and encouraging the Applicant to express his thoughts. Follow-up support and psychiatrist review in three months were arranged. The Applicant is also consulting with a psychologist.”
The submission posits that the Applicant’s mental health conditions and ASD will significantly impact his ability to reintegrate into Taiwanese society and he will face inadequate support and care for his conditions in Taiwan.
The submission notes that the Applicant has not spent any significant time in Taiwan since early childhood having started school in China at age 3 and then moving to Australia when he was 15.
The submission notes that cultural differences between Taiwan and China may present challenges to the Applicant. The submission posits that the Applicant’s ability to form social connections, find employment and adapt to the local way of life in Taiwan could be compromised by his disabilities.
The submission notes that the Applicant is concerned about his ability to complete his university studies in Taiwan due to language and cultural differences. The submission notes that the Applicant is not entitled to unemployment benefits in Taiwan. The submission notes that unemployed Taiwanese are expected to register with the public employment service agency and actively engage in job-seeking activities. The submission notes that the Applicant may not be able to avail himself of Taiwan’s employment insurance which has strict criteria applicable to it.
The submission notes that the Applicant’s removal to Taiwan could result in significant emotional impact due to separation from his father who resides in Australia. The submission notes that having a criminal record can impact a person’s prospects for employment and can lead to discrimination from both employers and society at large. The submission also notes that people with criminal records not only face employment barriers but also face societal exclusion and difficulty in accessing social programs.
The submission notes, given the Applicants serious criminal history in Australia, that this history is likely to pose additional impediments in Taiwan. The submission notes that the Applicant would need to explain the basis for his deportation from Australia.
The submission notes that, cumulatively, all of these factors would significantly impact the Applicant’s ability to re-establish himself and maintain himself in Taiwan. The submission notes that these respective hardships should be taken into account in favourably assessing the Applicant’s review.
With respect to the impact on Australian business interests, the submission notes that this consideration is not relevant to the proceedings before the Tribunal.
The submission in conclusion notes that “the Applicant’s criminal offending, though not extensive, is undoubtedly serious. The primary considerations of protecting the Australian community and meeting community expectations weigh against the Applicant. However, the primary consideration regarding the strength, nature, and duration of the Applicant’s ties to Australia weighs in the Applicant’s favour. Additionally, other considerations, such as the legal consequences of the decision and the extent of impediments the Applicant may face if removed, also support the Applicant’s case. In balancing these factors, the Tribunal should find that the adverse primary considerations are outweighed by the favourable primary and other considerations. The Tribunal should therefore find that there is another reason to revoke the cancellation decision.”
RESPONDENTS STATEMENT OF FACTS, ISSUES AND CONTENTIONS AND SUPPLEMENTARY DOCUMENTS
The Tribunal received the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 18 October 2024 which it has duly considered.
The submission refers to the Applicant’s offending history.
The submission notes that, on 14 September 2023, the Applicant was convicted of possess/control child abuse material-use carriage service (child pornography offence) and sentenced to two years imprisonment. Further, that on 22 September 2023, the Applicant’s visa was mandatorily cancelled under s.501(3A) of the Act.
The submission nots that “pursuant to s.501CA(4) of the Act the Minister may revoke the original decision if representations have been made by the person in accordance with the invitation (s.501CA(4)(a), and if the Minister is satisfied that the person passes the character test (s. 501CA(40(b)(i) or there is another reason why the original decision should be revoked (s.501CA(4)(b)(ii))).”
The submission notes that, when considering a request for revocation of a mandatory cancellation made under s.501(3A), a decision-maker must comply with Direction No. 110 and that the direction contains guidance for decision-makers outlining the principles which govern the task of deciding whether to revoke the cancellation of the visa under s.501CA(4).
The submission notes that the Applicant does not dispute the fact that he does not pass the character test as defined by s.501(6) of the Act. The evidence indicates that the Applicant had been sentenced to a term of imprisonment of 12 months or more on 14 September 2023 and that the only issue before the Tribunal is whether there is ‘another reason’ why the mandatory cancellation decision should be revoked, pursuant to s.501CA(4)(b)(ii) of the Act.
With respect to the considerations outlined in Direction 110, the submission notes that regarding the ‘Protection of the Australian Community’, the Applicant’s criminal history and conviction for possessing and controlling child abuse material is serious and that it weighs against revocation. The submission notes that the offending was a crime of a sexual nature against children. That the evidence before the Tribunal was indicative of the fact that the contents and volume of the child abuse material found to be in the Applicant’s possession was particularly serious. That the recurrent theme of the material in the Applicant’s possession was referrable to children aged between 2 and 10 years old engaging in sexual acts with adults. Reference is made to some of the examples found to be in the Applicant’s possession which the submission notes “demonstrate the abhorrence and depravity of the extensive material possessed by the Applicant.”
The submission notes that reference to the Applicant’s search history with respect to child abuse material was indicative of the fact that the Applicant sought out violence and underage material that included terms such as “rape”, “rape attack”, “dismembering”, “underage”, and “jailbait.”
The submission noted that the remarks of the sentencing judge in the District Court of New South Wales described the Applicant’s offending as a serious example of such offending.
The submission acknowledges that there had been a likely diagnosis of autism spectrum disorder (ASD) which may have impacted the Applicant’s ability to understand the impact of his offending, however the submission notes that the Applicant’s conduct was indicative of the fact that the Applicant was aware that accessing child pornography was wrong and that this fact was demonstrated by the Applicant’s own evidence during sentencing, the report of Ms Duffy psychologist, and the search terms that were used by the Applicant, with respect to accessing this material.
The submission notes that, were the Applicant to reoffend in a similar manner, such offending would fuel the demand for child abuse material and would result in “significant physical, emotional and psychological harm being inflicted upon those children.”
The submission notes that the volume of child abuse material in the possession of the Applicant totalled tens of thousands of both videos and photographic images and had no doubt contributed to the demand in the market for material pertaining to the sexual abuse of thousands of child victims.
The submission notes that when the Applicant was assessed by a psychologist Ms Duffy, she determined that the Applicant’s risk of reoffending was low based on the application of the Child Pornography Offender Risk Tool (CPORT). However, the submission notes that the test authors, with respect to the application of this tool, caution reliance upon it until there had been further validation studies.
The submission notes that Ms Duffy in her report considered the Applicant was in need of considerable psychological intervention to address a range of deficits, including intimacy deficits, difficulty with sexual self-regulation, developing skills to enhance his social interaction and some training with respect to empathy and communication. The submission notes that the Applicant has expressed remorse for his offending and insight into the wrongfulness of his actions, but has not provided any evidence to address how he intends to deal with the identified range of deficits going forward.
The submission notes that there is no evidence of family violence, and that this consideration is irrelevant.
The submission notes that, with respect to strength, nature, and duration of ties to Australia the Applicant had only resided in Australia for approximately eight years from the age of 14 and notes that the Applicant’s formative years were spent outside of Australia in Taiwan and China.
The submission notes that the Applicant only held a temporary visa, prior to its cancellation, namely a student visa, which did not give him the right to permanently reside in Australia. The submission noted that the Applicant’s father and only close relative residing in Australia was also the holder of a student visa, a temporary visa.

The submission notes that the Applicant had not provided any evidence of other family or social links to Australia and that this consideration should be given limited weight in favour of revocation, given the Applicant’s limited ties to Australia.
With respect to the best interests of minor children in Australia affected by the decision, the submission notes that in the Applicant’s case this consideration is not relevant.
With respect to the expectations of the Australian community, the submission notes that the Applicant had engaged in serious conduct, namely serious crimes against children of a sexual nature and that the expectations of the Australian community would be that somebody that has engaged in such conduct should not continue to hold a visa. The submission posits that “this expectation applies regardless of any assessment that the Applicant poses a low risk of causing physical harm to the Australian community.” Further to this, that “Australia has a low tolerance for any criminal conduct by those holding a limited stay visa, such as the Applicant in this case, who is the holder of a temporary visa, due to expire on 15 March 2024.”
The submission, with respect to this consideration, states that the consideration weighs strongly in favour of not revoking the mandatory cancellation of the Applicant’s visa.
With respect to other considerations, the submission notes that the Applicant has not raised any claims that would engage Australia’s international non-refoulement obligations and that there are none apparent on the face of the evidence before the Respondent. The submission notes the impact of clause 5001 of Schedule 5 of the Migration Regulations. The submission notes that the Minister accepts the legal consequence of this provision would likely prevent the Applicant from obtaining a visa in the future, prohibiting his return to Australia. Once again, reference is made to the fact that Applicant was in Australia as the holder of a temporary visa. The submission posits that this direction should not weigh heavily in the Applicant’s favour. With respect to the Applicant’s submission about the impact of his ongoing immigration detention, the Minister submits that “whether the cancellation is revoked or not, the Applicant would remain in detention. This factor is, once again, an intended consequence of the legislation and should not be given significant weight in favour of revocation.”
With respect to impediments, if the Applicant were removed from Australia, the submission notes that the Applicant is young, healthy, and there would be no substantial language or cultural barriers to him returning to either Taiwan or China. The submission notes that the Applicant’s representative has raised concern about the availability of treatment for a person with ASD in Taiwan and has provided some resource material with respect to access to resources for people with ASD in Taiwan. The source material is indicative of the fact that this support is limited due to ‘increasing demand’ but the report does not negate the availability of such support, and the Respondent posits that there is nothing to suggest that the Applicant would not have the same access to these services as other citizens of Taiwan. The submission notes that there is no clarity with respect to the support that the Applicant may need in relation to his ASD and indeed whether the Applicant has any intention of seeking this support. The submission notes that up until the Applicant’s arrest, he had not sought any assistance in relation to his ASD symptoms or had been provided with any support in Australia.
The submission notes again that the Applicant’s father is currently resident in Australia as the holder of a temporary student visa and the expectation would be that the Applicant’s father would depart Australia at the expiry of that visa, unless he was granted a subsequent visa.
The submission notes that, up until the time that the Applicant was arrested, with respect to his offending, he demonstrated an ability to live on his own while studying at university level. The submission notes that there is no evidence to believe the Applicant would not be able to continue to pursue his tertiary studies in Taiwan or that he would not be able to gain employment after completion of those studies. The submission notes that the Applicant would have been provided with financial support by his father while studying in Australia as the holder of a student visa and there is no evidence to indicate that this support would not continue to be provided to the Applicant if he returned to Taiwan.
The submission notes that the Applicant’s representative has raised concerns about the impact of his criminal history if he were to return to Taiwan. The submission notes that the research referred to with respect to this factor appears to be applicable to the United States of America. The submission notes that there is no evidence about the impact upon the Applicant if he were required to disclose his criminal offence or deportation history from Australia when applying for jobs in Taiwan, further highlighting that were he to remain in Australia, he would face similar disclosure issues. The submission concedes that the Applicant may suffer some hardship with respect to this consideration but his impediments upon return to Taiwan are not insurmountable and should be only given minor weight.
The submission notes that the evidence, in its totality, demonstrates there is a valid reason, having regard to s.501(3A), that the Applicant does not pass the character test.
REVIEW HEARING
The Tribunal conducted a review hearing on 11 November 2024 and the Applicant attended the hearing and gave evidence under affirmation. The Applicant was represented by Mr Mark Northam, solicitor who also attended the hearing. The Minister was represented by Ms Paige Durham, solicitor from the Australian Government Solicitors who also attended the hearing. The Applicant’s father attended the hearing and gave evidence under affirmation. An accredited Mandarin Interpreter assisted the Applicant as required and assisted the Applicant’s father in the provision of his evidence.
At the outset of the review hearing, the Tribunal explained to the Applicant the respective issues in the review, the process of merits review, and the prospective outcomes of the review.
The Applicant gave evidence to the Tribunal. The Applicant advised that he was born in Taiwan and was a citizen of that country. The Applicant advised the Tribunal that he left Taiwan when he was 3 years old when his family moved to China for work and the Applicant stated he has little memory of his life in China.
The Applicant stated that he came to Australia in 2016 when he was 15 years old. The Applicant stated that he has no legal right to live in China because he is a citizen of Taiwan. Mr Northam asked the Applicant what status his family had in China, and he advised he was not sure of the visa that they held whilst in China but believes it was a temporary visa.
Mr Northam asked the Applicant what sort of visa his family travelled to Australia on and he advised that it was a Subclass 457 work visa and the Applicant advised that he attended high school in Australia and eventually completed high school studies and then took up studies at the University of Newcastle in engineering.
Mr Northam asked the Applicant how his life in Australia was and he advised “I am not too sure.” Mr Northam noted that approximately 7 to 8 years ago the Applicant was assessed as having mental health issues with autistic features. The Applicant stated that he had a consultation when he was living in China and that he only learnt about the possibility of him having autism when he was taken into custody 1-2 years ago.
Mr Northam asked the Applicant whether he was diagnosed with anxiety, and he confirmed that he was. Mr Northam asked the Applicant how his autism situation had affected his life. The Applicant stated “I am not sure. I only learnt about it recently. I have not had a lot of interaction with clinicians. I have anxiety and struggle with communication.” The Applicant further advised that he did not have a lot of friends and found it difficult to make friends.
The Applicant stated that he found it difficult to communicate. Mr Northam asked the Applicant whether he had received psychological help for these issues and the Applicant stated that when he was in prison he under took some sessions with respect to his anxiety and had also undertaken sessions for anxiety. The Applicant stated that he had also undertaken some one-on-one sessions with a psychologist in both prison and immigration detention. The Applicant stated that he had five such sessions in prison and three sessions in detention along with two sessions with a psychiatrist in immigration detention.
Mr Northam asked the Applicant why he was imprisoned and why his visa had been cancelled. The Applicant stated that he was in possession of child abuse material and that he was given a two-year prison sentence. Mr Northam noted that the Applicant went from being a student to being in jail and the Applicant confirmed that this was the case and led to a big change in his circumstances.
Mr Northam asked the Applicant what impact the cancellation of the visa had on his life. The Applicant stated that he could not continue his university studies from prison or detention and that the environment of incarceration was not ideal.
Mr Northam asked the Applicant whether he had undertaken any courses whilst in prison or in detention. The Applicant stated that he undertook no courses in prison because he was only in prison after sentencing for a short time, based on the fact that he had served most of his full-time custodial sentence whilst on remand. The Applicant stated that this meant that he was not eligible to take any courses. The Applicant stated that he was sentenced to 2 years in prison with a 15-month non-parole period.
Mr Northam asked the Applicant with respect to his offending what his thoughts were about the offending. The Applicant stated that the materials that he was looking at were disgusting and that they were wrong and illegal.
Mr Northam noted the report from the psychologist Ms Duffy with respect to the Applicant’s District Court sentencing indicated that the Applicant knew that his offending was illegal but only after he had spoken to a lawyer did he realise that it was morally wrong. The Applicant confirmed that this was the case because he now realises it causes harm to society. Mr Northam asked the Applicant if he was a child whether he would want this type of offending to occur to him and he advised that he would not. Mr Northam asked the Applicant if he was a parent whether he would want this being done to his child and he advised that he would not and reiterated that this sort of offending was morally wrong.
Mr Northam asked the Applicant whether he had ever touched a child and he advised that he had not. Mr Northam asked the Applicant whether he had ever made sexual advances to a child, and he advised that he had not.
Mr Northam made reference to the fact that the Applicant had amassed an extremely large collection of child abuse photographs and videos which he had downloaded and looked at and asked the Applicant how the Tribunal could be assured that he would not reoffend. The Applicant stated “I am not sure how I could convince the Tribunal. I will get all the help I can.” The Applicant further noted that he recognised the children were harmed in the production of these videos.
Mr Northam asked the Applicant what the impact would be upon him if he were never allowed to return to Australia should he be removed. The Applicant stated that he was not sure. The Applicant believed that he would have some trouble reintegrating into society in Taiwan because of his ongoing issues with communication.
The Tribunal asked the Applicant whether he spoke Mandarin and he advised that he did. The Applicant stated that he was unsure whether he would be able to complete his tertiary studies in Taiwan and that he would struggle to find a job in Taiwan. The Tribunal asked the Applicant whether universities in Taiwan offered engineering as a course of study and the Applicant advised “possibly.”
Mr Northam asked the Applicant about relatives that he had in Taiwan. The Applicant stated he had extended family members in Taiwan on his father’s side. Mr Northam asked the Applicant whether he would be able to get a job in Taiwan and the Applicant advised it would be extremely difficult for him to secure a job. The Applicant was asked why this was the case and the Applicant advised because of issues with communication. Mr Northam asked the Applicant what plans he had for a future in Australia if his visa cancellation was revoked. The Applicant stated that he would finish his tertiary studies and that he would get a job. Mr Northam asked the Applicant whether he liked living in Australia and he advised that he did.
The Tribunal asked the Applicant about relatives in Taiwan. The Applicant stated that his father had six siblings all resident in Taiwan and that his paternal grandmother was alive, but his paternal grandfather was deceased. The Applicant advised that his late mother had three siblings and that his maternal grandmother was alive, but his maternal grandfather was deceased. The Tribunal asked the Applicant whether he had cousins and where they lived. The Applicant stated he was unsure.
Ms Durham conducted a cross-examination of the Applicant. Ms Durham noted that the Applicant came to Australia in 2015 and the Applicant confirmed that was the case and she asked the Applicant whether he had lived in Australia the majority of time since 2017 and he advised that he had. Ms Durham noted that the Applicant had returned to Taiwan in 2017, 2018 and 2019 and the Applicant confirmed that this was the case. Ms Durham asked the Applicant whether he saw any family members in Taiwan on these respective visits. The Applicant stated that he and his father travelled back to Taiwan during this period to predominantly see his mother as she was getting treatment for her cancer in Taiwan. Ms Durham asked the Applicant where he stayed on these visits, and he advised with his mother. Ms Durham asked whether his father accompanied the Applicant on all of these visits and the Applicant stated that he came on some of those visits. Ms Durham asked the Applicant whether his father was in touch with his family in Taiwan and she advised that she was not sure.
Ms Durham asked the Applicant whether there was any reason why his father’s or his late mother’s family could not help him if he relocated back to Taiwan and the Applicant stated that he had not been in contact with them, so he did not know.
Ms Durham asked the Applicant how he and his father communicated, and the Applicant stated in Mandarin. Ms Durham asked the Applicant whether he spoke Mandarin in Taiwan and he confirmed he did.
Ms Durham noted that the Applicant was granted a Student visa in March 2020 and had been studying engineering at university up until the time of his imprisonment. The Applicant confirmed that this was the case and that he had almost completed two years of his engineering studies. Ms Durham asked the Applicant whether he was getting any extra tuition with respect to his engineering studies and he advised that he was not. Ms Durham asked the Applicant whether he was paying fees for his engineering course, and he advised that his father paid his course fees on his behalf. Ms Durham asked the Applicant whether he was working whilst studying and he advised that he was not. He further advised that he was not earning any income and that his father paid his university fees and his cost-of-living expenses. Ms Durham asked the Applicant whether he would resume his studies if the visa cancellation was revoked and he advised that he would.
Ms Durham noted that the Applicant’s student visa expired in March 2024 which would require him making a new student visa application, and the Applicant confirmed this. Ms Durham noted that this visa application could be unsuccessful on the basis of the Applicant not meeting relevant character grounds. Ms Durham further noted that this was only a temporary visa. The Applicant confirmed that it was a temporary visa and that if he were not granted a further student visa, he would need to return to his home country.
Ms Durham asked the Applicant if he returned to Taiwan whether his father could pay for his studies in Taiwan as he has been doing so in Australia. The Applicant stated he was not sure whether he would be willing and able to do this. Ms Durham noted that if he is currently providing that level of support in Australia why this could not be transferable to Taiwan. The Applicant stated that he was not sure of his father’s affairs. Ms Durham asked the Applicant if he was able to continue studying in Australia whether his father would support him, and he advised that he could not read his father’s mind.
Ms Durham asked the Applicant whether he was aware of the fact that his father was here on a student visa, and he confirmed he was aware of that. Ms Durham noted that this was only a temporary visa and the Applicant stated he was aware of that fact as well. Ms Durham put to the Applicant if his father’s visa expired, and his father was not able to get another student visa, he would have to go back to Taiwan, and the Applicant confirmed that this would be the case.
Ms Durham noted that the Applicant had provided a statement to the Tribunal within which he stated that he and his father were close and that it would be an emotional challenge if he were separated from his father. Ms Durham asked the Applicant whether he believed his father would go to Taiwan if his visa remained cancelled and the Applicant stated he was not sure. Ms Durham asked the Applicant how he communicated with his father from prison and detention. The Applicant stated that they communicated by phone and that, since he had been in immigration detention, his father would visit weekly. Ms Durham asked the Applicant if he had to return to Taiwan whether he could contact his father by telephone. The Applicant stated that he was not sure if he could afford this but, provided he could, calls with his father should not be an issue.
Ms Durham made reference to the Applicant’s offending on 29 June 2022 at which time he was approached by the police after being reported for masturbating on a train. The Applicant stated that he pleaded to this offence. Ms Durham noted that, as a consequence of the first offending, police issued warrants to search the Applicant’s mobile phone and hard drive. Ms Durham noted that the Applicant had conducted Internet searches with respect to whether the police had the power to search material contained on a person’s mobile phone or computer. The Applicant confirmed that he had undertaken this Internet search which indicated that this type of material was illegal, and the police could search phones and hard drives. Ms Durham made reference to the hard drive found in the Applicant’s home. The Applicant confirmed that the hard drive contained child pornography material. The Applicant stated once again that he was aware that this child pornography material was illegal. Ms Durham noted that the Applicant’s evidence was at the time he was not aware that engaging with this material was ‘morally wrong’ and the Applicant confirmed that this was the case.
Ms Durham made reference to the psychologist’s report prepared by Ms Duffy. Ms Duffy in the report notes that the Applicant stated that he hoped that the children, the subject of material found in his possession, might have enjoyed it. Ms Duffy further noted that, when the Applicant was viewing the worst material found in his possession, he recognised that the children would be hurt by this behaviour. The Applicant confirmed this was the case.
Ms Durham noted that some of the material found to be in the Applicant’s possession included child abuse that related to children aged 2, 3, 4, 5, 9 and 10 years old. Ms Durham made reference to some of the most graphic aspects of the imaging concerning young infants (aged 2 and 3) being forced into engaging in sexual acts with adults some visibly distressed by this. Ms Durham asked the Applicant when he was watching these videos whether he believed the children were enjoying this behaviour. The Applicant stated, “no not in videos of this nature and that thinking about it now, they were being hurt.”

Ms Durham noted that some of the searches that the Applicant had made included searches for ‘rape tube’, ‘dismembering of a female person’, ‘teen porn’ and ‘jailbait’. Ms Durham noted that the material involved non-consensual sex and asked the Applicant whether he deliberately searched these sites for this type of material and the Applicant confirmed that he did. The Applicant stated that he was curious about this material and that he was now aware that in doing so he was facilitating the child abuse industry.
Ms Durham noted that the District Court judge in his sentencing comments noted that the Applicant said that he had a sexual interest in children and sometimes thought about this. The Applicant stated this was correct, but he does not seek it now because he has no access to this material. Ms Duffy enquired of the Applicant whether he had access to electronic devices and the Applicant stated that he does in immigration detention. Ms Durham asked the Applicant what has changed between sentencing and currently. The Applicant stated that he does not seek this material now and he does not know how he would feel if he viewed this material presently. Ms Durham asked the Applicant whether he was still interested in this material. The Applicant stated, “sometimes I think about it, but I am aware of the consequences, and it fuels demand for it is harming children.”
Ms Durham asked the Applicant whether he had engaged with a psychologist or psychiatrist in detention with respect to his ASD. The Applicant confirmed that he saw a psychiatrist in January 2023 with respect to his anxiety and his problems with communication. Ms Durham asked the Applicant whether he believed he had autism and the Applicant stated, “I do now.”
Ms Durham made reference to the Applicant’s tender bundle pages 98-106. Ms Durham made reference to page 99 of these documents where the Applicant was reminded by Dr Philip O’Rourke psychiatrist that he could have access to psychological support in detention with a notation by Dr O’Rourke that he was unconvinced that the Applicant would take up the opportunity and that the Applicant declined regular review, nevertheless Dr O’Rourke had booked a further psychiatric review in three months. Ms Durham also noted, at page 106 of these documents, with respect to the Applicant’s forensic history that it was recorded that the Applicant had some pornography videos on his mobile that he sold to other people.
Ms Durham asked the Applicant if he were released from detention, what plans he had with respect to having his autism assessed and treated. The Applicant stated that he would benefit from an assessment and treatment if available to him in the community. Ms Durham asked the Applicant whether he had done anything to see what support was available to him in the community and the Applicant stated he had not and that he only knew about support options available to him in immigration detention. Ms Durham asked the Applicant whether he would need any special support if he were to complete his course of tertiary studies and the Applicant stated ‘maybe’.
The Tribunal asked the Applicant whether he needed any support or assistance or special consideration in the two years that he had almost completed of his engineering studies and he advised that he did not.
Ms Durham made reference to the fact that Ms Duffy psychologist, in her report for District Court sentencing, opines that the Applicant was at a low risk of reoffending but there were a number of dynamic risk factors that needed to be addressed by the Applicant to circumvent the risk. This included dealing with loneliness, social rejection, deficits in sexual regulation and deviant sexual ideation. Furthermore, that the Applicant would need intervention to deal with and manage anxiety and Ms Duffy noted that this would be a lengthy process because of the Applicant’s needs. Ms Durham asked the Applicant whether he agreed that there were dynamic risk factors at play and the Applicant conceded with respect to social skills and deviant sexual interest. Ms Durham asked the Applicant whether he had taken steps to address these risk factors. The Applicant stated that he had taken some steps since he had been in immigration detention and that there was limited opportunity to do so in prison, but he had not sought available help in the community at this stage.
Mr Northam asked the Applicant a number of follow-up questions. Mr Northam asked the Applicant about his ability to speak Mandarin. The Applicant stated that he is able to converse with his father and family members in Mandarin. Mr Northam asked the Applicant whether he would be able to communicate on the job and the Applicant stated that it would depend on the job and that he has a good understanding of simple communication but would struggle with advanced terminology.
Mr Northam noted that Ms Durham had talked about the Applicant’s offending and about whether he was still interested in child abuse material and that the Applicant’s response was that this remained untested. Mr Northam asked the Applicant whether he would be interested in viewing children being raped and the Applicant advised he would not, whether he would be interested in people being dismembered and the Applicant advised that he would not. The Applicant added “I am not seeking it but I cannot say whether I would be interested or not.” Mr Northam asked the Applicant whether he had a desire to seek this material in his life and he advised that he did not. Mr Northam noted however that at one point of time the Applicant did, and he advised that this was correct.
Mr Northam noted that the Applicant was asked questions by Ms Durham as to his mental health. Further, that the Tribunal had asked the Applicant whether he needed any assistance while he was studying at university, such as with exams or assessments. The Applicant stated that he did not need any special assistance at that time. Mr Northam asked the Applicant, with changes in his life since that period, and with respect to his mental health, whether he would have problems resuming his tertiary studies. The Applicant stated that if he took some classes, he did not envisage having any problems and that he was adept at completing written assessments but that he might struggle with participating in an assessment that required him to speak in front of an audience. Mr Northam asked the Applicant whether he was afraid of communicating with others and the Applicant advised that it depended on the situation.
Evidence of Wen-Tien Hung
Mr Northam took evidence from the Applicant’s father (the witness). The witness advised that his normal occupation was in quality control in a medical company. Mr Northam asked the witness where he was born and he advised Taipei, Taiwan. Mr Northam noted that the evidence indicated the witness and his family left Taiwan when the Applicant was 3 years old and the witness confirmed that that was the case. Mr Northam asked the witness why he and his family left Taiwan at that point. The witness stated that he was sent by his company to work in mainland China and that the family lived in China between 2005 and 2015 — a period of 10 years, after which he brought his family to Australia in 2015.
Mr Northam asked the witness what sort of visa he travelled to Australia on, and he advised it was a visa sponsored by a company and that it was some sort of work visa. Mr Northam stated that he was sorry about the death of the witnesses wife, and the Applicant’s mother and noted evidence of travel between Australia and Taiwan to care for his wife when she was unwell. The witness confirmed that he travelled between Australia and Taiwan to care for his wife as she was receiving treatment in Taiwan.
Mr Northam asked the witness how he would describe his life in Australia after arriving and the witness stated that he liked the environment in Australia very much. Mr Northam asked the witness whether he had completed any education in Australia and the witness advised that he had completed some management courses. The witness advised that he currently held a student visa and was studying in an institute in Australia called ‘Harbourside’ and that he was studying project management.
Mr Northam asked the witness whether he had family in Taiwan and he advised that he had six siblings and that his mother was alive, and his father was deceased. Mr Northam asked the witness whether his late wife had any siblings in Taiwan, and he advised that she had two older siblings in Taiwan— a brother and sister — and a younger brother resident in Macau. Mr Northam asked the witness whether he was in touch with him and he advised very rarely. He advised that he had rare contact with his own siblings. Mr Northam asked whether there was any reason for this limited interaction and the witness stated that he was not close with family members and was very busy at work.
Mr Northam noted that, around 7-8 years ago, the Applicant was diagnosed with unknown psychological issues and whether he could elaborate on that. The witness stated that, when his son was studying in China, in year seven or year eight, he and his wife would get a phone call from the school stating that the Applicant was ‘screaming’, and his wife would attend the school to try to understand what had happened and that this occurred frequently.
Mr Northam asked the witness whether he had taken the Applicant to a psychologist or psychiatrist and the witness advised that he and his wife took their son to see a psychologist in China but there was no specific reason for the behaviour or diagnosis provided.
Mr Northam noted that the witness, in a statement provided in support of the application, had described his son as sensitive and introverted. Mr Northam asked why this was the case. The witness stated that, in the past, his son had not been able to express himself; he was nervous on stage and his muscles would get stiff when he was playing the piano or the violin in public. Mr Northam also noted evidence of the Applicant having issues engaging with other people. The witness stated that his son would hide himself from time to time when they would have people over for a gathering.
Mr Northam asked the witness how the death of his wife impacted both himself and the Applicant. The witness stated that his wife cared for both of them and, after she ‘departed’, they struggled to live independently without her. Mr Northam asked the witness how he communicated with the Applicant in detention, and he stated at least two phone calls a day.
Mr Northam asked the witness whether he was aware of his son’s offending, and he advised that he was aware that his son was engaging with child-abuse material. Mr Northam asked the witness whether he believed that the Applicant had learned from his past mistakes and the witness believed that his son had. Mr Northam asked the witness what led him to believe this. The witness stated that, in the past, the Applicant would not take initiative to call him but now they speak on a regular basis and communication is better between them.
Mr Northam noted that, in the event that the Applicant’s visa remains cancelled, he will essentially have a lifetime ban from accessing Australia unless the Minister grants him a visa and the witness stated that he was aware of this now. Mr Northam asked the witness if his son were removed and sent back to Taiwan, what support he would be able to provide to him, and the witness stated that he would encourage his son, that he would provide financial support, but that it would be difficult for his son. The witness stated that, if he had to go back, it would not be easy for him to find a job. The witness stated the last time he worked in Taiwan was around 20 years ago in research and development. Mr Northam asked the witness whether he had maintained his skills in that area and he advised that he had, but the area had advanced, and it would be difficult to get back his original job. The witness stated that his knowledge and skills were out of date.
Mr Northam asked the witness whether his six siblings, or whether his wife’s three siblings, could provide any kind of support to the Applicant if he went back to Taiwan. The witness stated he believed that it would be difficult because they are not financially well-off.
Mr Northam asked the witness, given what he knows about his son today, whether he believed his son was a danger to the Australian community, and he advised that he did not.
Mr Northam asked the witness if his son had to go back to Taiwan, what circumstances he would find himself in. The witness stated that his son had not been living in Taiwan for a long period of time, and it would be hard to integrate into society and difficult for him to transition.
Ms Durham asked the witness some follow-up questions. Ms Durham asked the witness whether he was currently on a student visa, and he advised that he was. The witness advised that this visa expired in May 2025. Ms Durham asked the witness whether he was cognisant that his visa was temporary and that, when it expired, if he did not get another visa granted, he would need to go back to Taiwan, and the witness stated he was cognisant of this.
Ms Durham asked the witness what he understood about his son’s convictions. The witness stated that his son collated thousands of child pornography photographs inside his phone nearly 10,000 photos. Ms Durham asked the witness whether he was aware of the nature of what was contained in that pornography. The witness stated that he heard the narrative from the sentencing judge, with respect to the contents of the material, but did not see the material for himself.
Ms Durham noted that the witness gave evidence that he was currently working in quality assurance and the witness confirmed that this was the case for a health supplement company. Ms Durham asked the witness whether he would be able to get a job with those skills and the witness stated that he had not given much thought to this currently. Ms Durham asked the witness whether he believed there was any reason to think that those skills would not be transferable to Taiwan. The Applicant stated that he had specific experience in the past in Taiwan and that the pharmacy and medical companies in Taiwan are not well developed industrially. Ms Northam asked the witness whether he had undertaken any other form of work in Australia and he advised that he had not.
CLOSING SUBMISSIONS
Mr Northam noted that the Applicant was an introverted and anxious young man with multiple mental health conditions including anxiety and ASD, with a provisional diagnosis of ASD being confirmed by a number of psychologists and psychiatrists over time. Mr Northam posited that these mental health conditions have had a profound impact on the Applicant’s life, leading to an inability to make friends, to cope with family gatherings and have left him trapped in his own world. Whilst in this world, the Applicant went to the dark side of the Internet.
Mr Northam noted that the Applicant’s offending was serious and noted that the Applicant plead guilty at the first available opportunity. Mr Northam noted that the Applicant described his behaviour as ‘disgusting’ and that no one is arguing that the Applicant’s offending was not ‘very serious’.
Mr Northam stated that the stakes for the Applicant were very high. An Australian citizen convicted of these offences would serve two years of imprisonment and then be released into the community to be able to get on with their life. However, the Applicant, because of his status in Australia, faces a lifetime ban from Australia if the ART affirms the cancellation, and the Applicant is removed under s.198 of the Act. Mr Northam noted that, under law, the Applicant could apply for a protection visa, however, he would be blocked from applying for all other types of visas. Mr Northam stated that there was no evidence or basis in which the Applicant would qualify for a protection visa, noting that Taiwan was a peaceful country, and conceding that the Applicant had expressed no interest in applying for a protection visa. Once again, Mr Northam reiterated that cancellation of the Applicant’s visa would result in a lifetime ban. Mr Northam posited that the Minister would not likely grant the Applicant a visa to get around s.5001 of the Act.
Mr Northam argued that this would have a profound effect on the Applicant’s life. Mr Northam stated that no one was arguing that the Applicant’s mental health conditions exonerated his offending. Mr Northam noted that the Applicant had been sentenced to 2 years imprisonment by the District Court and after his imprisonment he was detained in immigration detention. Mr Northam noted that there was no history of offending in China or Taiwan.
Mr Northam posed the question what made the Applicant turned to what he phrased as “the dark side”. Mr Northam makes reference to the report from Ms Duffy, psychologist who points to the fact that the Applicant has had major problems connecting and communicating with other people from about the age of 12 or 13. Mr Northam noted that it was interesting that, when faced with introversion, the Applicant was curious about people of his own age and younger.
Mr Northam noted that the Tribunal is required to holistically assess the Applicant’s character. Mr Northam noted that there were clear problems emerging with the Applicant in early adolescence including significant problems with being able to communicate because of an underlying autism diagnosis. Mr Northam noted that communication problems were a hallmark of autism spectrum. Mr Northam put forward that, without excusing what the Applicant engaged in, his case needed to be differentiated from that of a 50 or 60-year-old man who engages with child abuse material for his own sexual gratification and appetite due to the Applicant’s underlying mental health conditions. The Applicant should not be seen as an evil person. Mr Northam acknowledged that downloading child abuse material creates a market for this material and that the Applicant had disclosed to Ms Duffy the psychologist that he believed that his behaviour was morally wrong. The Applicant was also cognisant of the fact that engaging with this material was illegal. Mr Northam noted that, since the Applicant had been arrested, and through the sentencing process and engagement with a psychologist, he was aware of the moral implications of what he was doing.
Mr Northam made reference to Direction 110. With respect to protection of the Australian community Mr Northam stated that there was no getting around the fact that violent/sexual offences were looked at very seriously by the Australian community. He reiterated that the Applicant pled guilty at the first available opportunity. Mr Northam stated that risk needed to be carefully looked at and the seriousness of risk needed to be looked at and balanced. Mr Northam stated that this was a forward-looking criteria and was not a tool for the Tribunal to punish the Applicant for his offending and that the Tribunal needed to consider risk with respect to predictive not punitive factors. The Tribunal needed to consider how a person had changed since those actions occurred. Mr Northam reiterated that the Applicant found his behaviour to be ‘disgusting’. The Applicant was cognisant of the wrongfulness of his actions. Mr Northam made reference to Ms Duffy’s report where she opined that the Applicant presented a low risk of reoffending and, after applying CPORT testing, she identified a number of risk factors that needed to be addressed. Mr Northam noted that Ms Durham had put this to the Applicant in her cross examination and the Applicant had taken responsibility for his offending. The Applicant was not trying to downplay what he had done. Prior to this offending, the Applicant had no criminal record in Australia or anywhere else.
Mr Northam noted that there had been no issues with respect to the Applicant’s behaviour in prison or in detention. Mr Northam stated that this behaviour was completely out of character. Mr Northam made reference to the comments of the sentencing judge in the District Court who noted a connection between the Applicant’s autism and his offending, and that the Applicant exhibited insight into the moral wrongness of his offending and provided evidence in a candid, frank and honest way. Mr Northam pointed to observations of the sentencing judge that if the reason for the Applicant’s offending was beyond their control, differentiation needs to be made compared to a person without underlying mental health issues. Mr Northam noted that the sentencing judge believed the Applicant had favourable prospects ahead and was unlikely to reoffend and that the risk of reoffending was low.

Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[1]
[1] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant was imprisoned, most notably for two years for his possession of child abuse material. This Tribunal finds that this reflects the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
The evidence before the Tribunal indicates that those who engage with child abuse material are perpetuating and feeding into the child abuse industry leading to the ongoing abuse of child victims.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As has been discussed, the Applicant’s first offending manifested on 29 June 2022, when he came to the attention of the police for obscene exposure on a train, namely masturbating in public. The Applicant pleaded guilty to this offence in the Local Court of New South Wales on 21 July 2022, for which he was placed on a 9-month Community Release Order without a conviction being recorded.
On 14 September 2023, the Applicant was convicted in the District Court of New South Wales with possess/control child abuse material-use carriage service. This conviction related to a large amount of child abuse material being found on the Applicant’s mobile phones and a hard drive in July 2022.
The evidence indicates that the Applicant was convicted of the offence of possessing and controlling child abuse material for which he was sentenced to a full-time custodial sentence of 2 years, which is reflective of the gravity of this offending. This conviction grounded the mandatory cancellation of the Applicant’s visa.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant had no conviction recorded with respect to his wilful exposure offence. The Applicant received his only conviction for possessing and controlling child abuse material. There is no history of repeat offending and hence the Tribunal regards this consideration to be irrelevant to the circumstances of this case.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant has not provided false or misleading information to the Department.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence that the Applicant has offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
There is no evidence that the Applicant has committed an offence, or other serious conduct, in another country.
The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, 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.
Paragraph 8.1.2(2) provides that 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 non-citizen 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).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
As has been discussed, there are a range of risks that have been identified with respect to the Applicant re-offending.
The Applicant, in his engagement with Ms Duffy, psychologist, told her that he believed that he may have been addicted to viewing child abuse material and that some of the contents of this material became more extreme and more violent as he grew older.
Ms Duffy opined in her report that the Applicant needed to address dynamic risk factors related to his autism spectrum disorder, intimacy deficits, sexual self-regulation, skills to enhance social interactions, training and empathy and strategies to manage anxiety associated with social activity. As has been noted, the evidence before the Tribunal, and the evidence elicited at hearing, indicates that the Applicant, to date, has not addressed these dynamic risk factors, apart from some limited engagement with psychologists and psychiatrists whilst in immigration detention. The Tribunal notes the record from Dr O’Rourke, psychiatrist, in the Applicant’s tender bundle at pages 98 and 101 that he was unconvinced in December 2023, that the Applicant would access mental health support and regular review. The Applicant gave evidence at hearing that he only spent 1-2 months in prison due to the fact that he spent an extended period of time in remand. The Applicant advised because of the short duration of his period of imprisonment, post remand, that he was not able to engage with or participate in any of the self-help courses on offer in prison.
Judge Marian, in his sentencing decision, notes that the Applicant reported to Ms Duffy that he did not have a sexual interest in children, however, whilst giving evidence in the District Court under oath the Applicant agreed that he did have a sexual interest in children.
Judge Marian, in his sentencing comments, determined that there was a clear need for supervision and professional assistance upon the Applicant’s release from custody and an extended period of supervision in the community.
The Tribunal notes that the Applicant, since being convicted in the District Court, and being sentenced to a period of imprisonment, was transferred to immigration detention at the end of his prison sentence. The Applicant has thus been in full time custody since being held on remand in 2022 and has not, since being convicted of the offending, had an opportunity to spend any time in the community. The Applicant’s future behaviour in the community remains untested.
The evidence indicates that, apart from his father, the Applicant is socially isolated and has been for the duration of his time in Australia. In the absence of a support network around him, it is open to conjecture as to whether the Applicant will engage in re-offending. The Applicant expressed to Judge Marian in the District Court that he still has an interest in children, and, in his evidence to the ART at hearing, he sometimes harbours thoughts about child abuse material, and he does not know how he would feel if he viewed it. The Applicant did however acknowledge that he is aware of the consequences of this behaviour fuelling demand for the child abuse material market.
In terms of factors mitigating risk, the following has been raised at review. The fact that Judge Marian in his sentencing remarks in the District Court concluded that the Applicant was unlikely to re-offend and that Ms Duffy concluded that there was a ‘low risk’ of the Applicant re-offending. In addition to this, that the Applicant had expressed remorse for his offending and has come to know the moral culpability of being involved in such offending.
However, the Tribunal notes that both Judge Marian and Ms Duffy’s comments are peppered with some underlying concerns. In the case of Ms Duffy, the dynamic risk factors that she has identified which the Applicant will need to address, regarding his behavioural and mental health issues, have not, to date, been addressed. The Tribunal appreciates the challenges of doing so whilst detained, however, the Applicant has made no enquiry of access to such support in the community, and this is despite the fact that he has access to electronic devices in detention and has interacted with both a psychologist and psychiatrist whilst in immigration detention who have suggested further engagement with mental health services. Judge Marian notes, in his sentencing remarks, that “clearly with his mental health issues, his anxiety issues and his clear need for supervision and professional assistance upon his release from custody, it is appropriate that there be an extended period of supervision in the community whilst still subject to sentence.”
This information and evidence is indicative of a risk of re-offending.
The Tribunal notes the evidence pertaining to the Applicant’s extreme social isolation in the past and the prospect and impact of ongoing social isolation in the event that the Applicant was to again reside in the community.
The Applicant’s criminal offending is of a very serious nature. The risk of this conduct being repeated in the future is unacceptable.
The sub-paragraphs of paragraph 8.1.2 of the Direction, in their totality, weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
“Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful.
There is no evidence before the Tribunal that the Applicant has committed acts of family violence against any other person.
Conclusion: Primary Consideration 2
The evidence before the Tribunal indicates that consideration of Primary Consideration 2 is not a relevant consideration in this case.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
The evidence before the Tribunal indicates that the Applicant arrived in Australia on 1 July 2016 when he was 14 years old. The Applicant’s father held a Subclass 457 visa which is a temporary visa that enables the visa holder to remain in Australia for a finite period to work for an Australian business. If the primary visa applicant has a partner, or dependent children who were included in the visa application as secondary visa applicants and they are granted secondary visas, they have the right to reside temporarily in Australia for the duration of the 457 visa.
The Applicant attended secondary school in Australia, completing the Higher School Certificate (HSC). The Applicant’s HSC result enabled him to enrol and engage in a Bachelor of Engineering course at the University of Newcastle. The Applicant successfully completed almost 2 years of this degree prior to his offending and subsequent incarceration.
The evidence before the Tribunal indicates that the Applicant, prior to arriving in Australia, had spent most of his life living in China where his father had obtained a work contract.
The Applicant’s SFIC addresses that, despite the fact that the Applicant did not arrive in Australia as a young child, he has spent a formative period of his adolescence in Australia into early adulthood and that the completion of the HSC and part of a tertiary degree is indicative of the Applicant’s ties to Australia. The Tribunal concedes that the Applicant has spent 8 years in Australia and that the transition from teenage years to adulthood are formative.
The evidence before the Tribunal indicates that prior to the cancellation of his visa the Applicant held a Subclass 500 Student visa which expired in March 2024.
The evidence before the Tribunal indicates that the Applicant’s father holds a Student visa, which is a temporary visa subject to strict conditions.
The evidence before the Tribunal indicates that neither the Applicant nor his father hold, or have ever held, permanent residence in Australia and that the nature of their residence in Australia has always been temporary in nature. Thus, neither the Applicant nor his father, have the right to remain in Australia indefinitely.
Evidence adduced at hearing indicates that the Applicant, because of underlying anxiety, ASD traits and avoidance behaviour, has remained socially isolated in Australia from the time of his arrival. The evidence indicates that the Applicant has not established any network of friends in Australia and has ostensibly been a loner whilst completing his high school studies and in the almost 2 years that he undertook tertiary studies in Newcastle.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider 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.
There has been no evidence adduced in the submissions to the Tribunal, nor in the oral evidence provided at hearing, that indicates the Applicant has any family or social links with Australian citizens, Australian permanent residents, and/or people who have an indefinite right to remain in Australia.
Having regard to the totality of the evidence before it with respect to this consideration, the Tribunal finds that limited weight should be apportioned in favour of revocation given the Applicant’s limited ties to Australia.
Conclusion: Primary Consideration 3
The Tribunal finds that limited weight should be apportioned to Primary Consideration 3 in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
There is no evidence before the Tribunal which indicates that there are any minor children in Australia who would be affected by the decision and hence this consideration is not relevant.
Conclusion: Primary Consideration 4
The evidence before the Tribunal indicates that Primary Consideration 4 is not a relevant consideration in this case.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through engaging in criminal conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, 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 the following kind:
(a)acts of family violence; or
(a)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(b)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;
(c)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(d)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(e)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.

Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision maker must have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the fact that the Applicant has engaged in serious conduct, namely serious crimes against children of a sexual nature and the expectations of the Australian community are that the Applicant should not continue to hold a visa.
The Tribunal is reasonably satisfied that the expectations of the Australian community, as a whole, weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
On balance, Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence of any non-refoulement obligations that may arise in this matter and this fact was confirmed in submissions made on the Applicant’s behalf at review, which indicate that there are no grounds in which the Applicant could lodge a protection visa application and that he has no intention of doing so.
The Tribunal acknowledges that, if the Applicant were removed from Australia, he would not be allowed to return to Australia unless the Minister intervened to allow him to return, and given the Applicant’s offending background, this would be unlikely to happen.
(b) Extent of impediments if removed
The Applicant is a young man who is 23 years old. He has completed the balance of his secondary education in Australia, and he has completed almost two years of a Bachelor of Engineering. The Tribunal is unaware of whether the Applicant possessed English language skills when he arrived in Australia, however, the Applicant has, since his arrival, developed sound English language skills. This is evidenced by the fact that he did not need to defer to the interpreter for the duration of his ART hearing, along with the fact that he has completed the HSC and nearly 2 years of a tertiary engineering course in Australia in English. The Tribunal finds that the Applicant’s English language skills may well be transferable to job prospects in Taiwan. In addition to this, the Applicant gave evidence at hearing that he may be able to complete the balance of his engineering degree in Taiwan and he may be given some credits for the subjects he has completed to date. The Applicant is able to converse with his father and with family Members in Taiwan, in Mandarin and the Tribunal notes Mandarin is his mother tongue and would have been the language used by the Applicant for the first 14 years of his life.
The Tribunal notes the country material provided by the Applicant in the Applicant’s tender bundle, located at pages 71-93, which makes reference to criminal records as barriers to employment. The Tribunal notes that the articles provided relate to the United States of America and not to Taiwan. The Tribunal is unable, based on those secondary materials, to find that the Applicant would face barriers to employment in Taiwan, due to the prospective disclosure of his criminal record.
The Tribunal accepts the evidence provided by the Applicant, and referable to the material before the Tribunal that he has suffered with his mental health, namely with anxiety, and with avoidance behaviours and has a preliminary diagnosis of ASD, which first became apparent when he was being assessed by psychologists with respect to his offending and District Court sentencing. The Tribunal has had regard to the submissions that access to services for ASD may not be as widely available to the Applicant in Taiwan as they are in Australia, however the evidence is such that such services are available in Taiwan and will be able to be accessed by the Applicant as a Taiwanese citizen.
The evidence before the Tribunal indicates that the Applicant would not suffer any language or cultural barriers in Taiwan. Based on the country information submitted with the Applicant’s tender bundle, such as the ISSA Country profile for Taiwan, it is apparent that Taiwan offers social security benefits to its citizens and medical support systems to its citizens.
The Tribunal notes that, despite spending an extended period of his life in China, due to his father’s work in that country, the Applicant has spent significant time in Taiwan. Indeed, his late mother received treatment for her cancer in Taiwan and the Applicant and his father made frequent visits to Taiwan to visit her.
The evidence further indicates that the Applicant’s father has six siblings all resident in Taiwan and that his late mother has a brother and a sister in Taiwan and hence the Applicant does have access to a family network in Taiwan. Additionally, the Applicant’s father advised that, in the event that his son had to return to Taiwan, he would also return to Taiwan.
There is further evidence before the Tribunal which indicates that, whilst the Applicant was studying at the University of Newcastle, he had the ability to live independently and to successfully complete his studies up until the point of his incarceration.
With respect to this consideration, the Tribunal finds that minor weight should be apportioned to this consideration in favour of revocation.
(c) Impact on Australian business interests
There is no evidence that Australian business interests would be compromised were the Applicant removed to Taiwan. Accordingly, the Tribunal does not consider this consideration to be relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. Due to the Applicant’s custodial sentence of more than 12 months, he clearly does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(1)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 is not relevant in this case.
(c)With respect to Primary Consideration 3, the Tribunal finds that limited weight should be apportioned to this consideration in favour of revocation.
(d)Primary Consideration 4 is not relevant in this case.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations are given minor weight in favour of the revocation of the cancellation of the Applicant’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the remainder of the primary considerations. Furthermore, the Tribunal places greater weight on the applicable Primary Considerations than the Other Considerations.
The Tribunal is guided by the principles contained in the Direction. These include paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the community. The Tribunal is reasonably satisfied that the safety of the community is best served without the Applicant’s presence within it.
Accordingly, the Tribunal is not satisfied that the cancellation of the Applicant’s visa should be revoked. The correct and preferable decision of the Tribunal is to affirm the Reviewable Decision.
DECSION
The Tribunal affirms the Reviewable Decision

I certify that the preceding 295 (two hundred and ninety-five) paragraphs are a true copy of the reasons for the decision herein of General Member Cipolla

...............................[SGD]................................
Associate

Date of Decision:
19 November 2024

Dates of Hearing: 11 November 2024

Representation for the Applicant:
Mr Mark Northam, Northam Lawyers

Representation for the Respondent: Ms Paige Durham, AGS

Date of Decision:	19 November 2024
Dates of Hearing:	11 November 2024
Representation for the Applicant:	Mr Mark Northam, Northam Lawyers
Representation for the Respondent:	Ms Paige Durham, AGS