Huntley and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Huntley and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4370 (22 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/7301
Re:HUNTLEY, Joshua Anthony
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:22 December 2023
Date of written reasons: 19 January 2024
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
..............[sgnd]..........................................................
Senior Member Dr N A Manetta
MIGRATION – mandatory cancellation of visa – whether “another reason” for revocation of cancellation decision – Direction 99 – conviction of serious offences involving the possession of prohibited sexual material – highly antisocial offending – drug addiction – low risk of re-offending – good start in respect of drug rehabilitation – other considerations contributing to offending behaviour – applicant’s troubled background considered – interest of fiancé considered – decision set aside and cancellation decision revoked
Legislation
Migration Act 1958 (Cth)
Cases
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 790
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Dr N A Manetta
19 January 2024

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These reasons contain certain standard paragraphs; particularly, [5] and [28].
This is an application by Mr Joshua Huntley, a citizen of New Zealand, seeking a review of the decision of the respondent’s delegate dated 2 October 2023. By this decision, the delegate declined to revoke the cancellation of Mr Huntley’s visa[2] that had taken place earlier, and mandatorily so, under the Migration Act 1958 (Cth) (“the Act”) following his conviction of serious offences involving the possession of child-exploitation material.
[2] A Class TY Subclass 444 Special category (Temporary) visa.
There is no doubt on the evidence before me that Mr Huntley’s visa was properly cancelled in the first instance. Moreover, the internal-review delegate was correct to find that Mr Huntley, given his conviction, failed the so-called “character test” under s 501 of the Act. This was the first of the two questions the delegate had to address in the review: see section 501CA(4)(b)(i). The second question that the internal-review delegate had to address ‒ the only one of substance ‒ was whether there was “another reason” why the mandatory cancellation decision should be revoked (that is, apart from Mr Huntley passing the character test): see section 501CA(4)(b)(ii). In addressing this question, the delegate was required to apply any direction issued under section 499 of the Act: see s 499(2A). The delegate applied Direction no. 99 (“the Direction”).[3] Having weighed and applied the various considerations required to be addressed under the Direction, the delegate concluded that Mr Huntley’s visa should remain cancelled.[4] There was not, therefore, “another reason” in the delegate’s view for the cancellation decision to be revoked, and the delegate duly declined to take that action.
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
[4] See Ex R1, 16-29.
I must address the same two questions as the internal-review delegate. I have already indicated that Mr Huntley does not pass the character test. The remaining question is whether I am satisfied there is “another reason” for the cancellation decision to be revoked. Like the delegate, I must apply the Direction.
TRIBUNAL’S TASK
In matters like these, the Tribunal hears the matter afresh on the evidence adduced before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence before it. It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence.
At the hearing before me, the applicant was self-represented; Mr Chan appeared for the respondent. I note Mr Chan’s careful advocacy, questioning and balanced submissions in a case where the subject-matter was clearly challenging.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Mr Huntley was born on 24 December 1992 in Whanganui, New Zealand, and was, therefore, 30 years of age at the time of the hearing before me. His background in New Zealand was very troubled, indeed. Soon after he was born, his grandmother assumed custody of him as his mother was not in a position to care for him: she and her partner, Mr Huntley’s father, already had three children. He lived with his grandmother until he was some four-and-a-half years of age, when he returned to live with his father for some 18 months. By then, his parents had separated. His father was still single at this point but subsequently met a new partner. At about six years of age, Mr Huntley returned to live with his grandmother.
His grandmother’s partner was a violent alcoholic according to Mr Huntley, although he was gone for months on end according to Mr Huntley. At about the age of 12, Mr Huntley returned to live with his father. His siblings were living with their father at that time,[5] and there was also an older half-brother in the household. Mr Huntley gave evidence that I accept that he was abused sexually by his older half-brother and was beaten by him. He was also treated viciously by his father. One incident described in evidence, which I accept, is that Mr Huntley was kicked down the stairs by his father, who was wearing steel-capped boots at the time. Mr Huntley was always fearful and unhappy at this time. I also accept that he was sexually abused by an older male while he was living with his grandmother.
[5] At least initially.
The father’s second relationship eventually failed, but the father met a new partner, this time a woman who was kind to him. She had a young son. Mr Huntley gave evidence that he did not really get on with this boy.
Mr Huntley gave evidence that he had moved to Australia with his family when he was 13 years of age. Mr Huntley’s father decided to move to the Mt Tom Price mines in the Pilbara region of Western Australia for better employment opportunities. Mr Huntley gave evidence that I accept that he had good grades in school whilst living in the mining town. He also had employment there.
That said, Mr Huntley gave evidence (that I also accept) that he found the experience of moving to Australia hard as he was something of an outsider in a town with settled social groups. Unfortunately, Mr Huntley’s father’s relationship with his partner ended when Mr Huntley was about 14. Mr Huntley found himself living with his father alone.
He was largely looking after himself at this stage until his father met a new partner, when Mr Huntley was about 15 or 16 years of age. This woman was kind and something of a mother to him.
At this juncture, it is convenient to refer to a fact that is relevant in these proceedings, namely, Mr Huntley’s sexual orientation. His relationship with his father deteriorated substantially when his father learned he was same sex attracted. Mr Huntley attempted suicide and was taken to a psychiatric ward in Perth for a mental assessment. He was confined there for a week or a week and a half, he said.
As I understand it, this period in his life saw the end of Mr Huntley living in Tom Price with his father. At some point, his father required him to leave the household. Unfortunately, Mr Huntley had met a very bad partner online, a man named “Justin”. He was several years older than Mr Huntley. Mr Huntley began to live with Justin in Perth and was, he said, basically sleeping in other people’s homes. Justin was addicted to drugs and was connected with a gang. He was violent towards Mr Huntley.
Mr Huntley and Justin ended up travelling to New Zealand when Mr Huntley was 17 or 18 years of age. Mr Huntley worked there as did Justin. He lived with Justin in a flat two doors down from his grandmother’s home. Justin was addicted to heroin, and the relationship finally ended with a violent episode. At that point, Mr Huntley decided to live with his grandmother again. He wished to become a pilot, and he began a diploma in Aviation. Unfortunately, he had to stop his studies when he learned his asthma would prevent him obtaining a commercial pilot’s licence. That was a bitter pill for Mr Huntley to swallow.
Mr Huntley returned to Hervey Bay, Queensland to live with his father’s former partner, the one who had treated him with kindness and been something of a mother to him. His plan was to find his feet.
He found a job and moved to Brisbane where he met his current partner, and now fiancé, Mr Scott Terrill, who gave evidence in the proceedings before me. They met online. Mr Huntley was working as an assistant restaurant manager in Queensland at this time. Mr Terrill is 15 years older than Mr Huntley. Mr Huntley described the relationship as a good one although it has had its “ups and downs”, and there was a period of separation. There has been no abuse or violence by Mr Terrill towards Mr Huntley, however. Mr Huntley did say that there were “trust and infidelity issues” on both sides during the relationship.
At some point, Mr Huntley reached out to his father. He met his father in Perth, and the meeting went well apparently. His brother and sister had also moved to Perth. Mr Terrill and Mr Huntley left Queensland for Perth, or more exactly Mandurah, which is located some 85 km from Perth.
Mr Terrill was, and remains, a fly-in, fly-out (or “FIFO”) mine worker; Mr Huntley was working in hospitality and retail at this time. They rented a place in Mandurah and settled in well. The relationship with Mr Terrill did end at a point although it was to resume subsequently. Mr Huntley was 24 years of age at the time the relationship ended. He moved out to live with a brother with whom he got on well.
Mr Huntley was introduced at some point to methamphetamine by a cousin. He first began to use it with men he was dating casually. He eventually began to use it more frequently, and his burgeoning addiction saw him take the drug regularly just so as to appear to be functioning normally; or at least that was his perspective at the time. At about this time, his grandmother died, and Mr Huntley took her death especially hard. He did not seek help in that regard.
Unfortunately, Mr Huntley’s work at that time as a performance coach ended when he was made redundant. He said that he continued to use methamphetamine. Mr Terrill knew of Mr Huntley’s habit but did not condone it. Mr Terrill could not effectively control Mr Huntley’s use of it as he was away on work regularly.
I now turn to Mr Huntley’s criminal record, which was before me.[6] Mr Huntley appeared in the Mandurah Magistrates Court on 11 October 2022. He was charged with possessing a prohibited drug and drug paraphernalia. He was fined $200 on that occasion.
[6] Ex R1, 30-31.
That is the only criminal offence in Mr Huntley’s record apart from the very serious offending to which I am about to refer. On 23 March 2023, Mr Huntley was convicted in the District Court of Western Australia of two counts of possessing child exploitation material. The offending in question occurred on 30 August 2022. The police searched Mr Terrill’s and Mr Huntley’s residence. A very large number of electronic files were found in Mr Huntley’s possession across a number of devices.[7] The sentencing remarks[8] describe the material in question, and I need not repeat the description here. The description is simply too offensive to repeat. The material as described by the Court was very serious indeed. The Court stigmatised the offending as involving “a high level of perversion and debauchery”.[9]
[7] I understand the search yielded the drug and drug paraphernalia that were dealt with on 11 October 2022 as well as the pornographic material.
[8] Ex R1, 33ff.
[9] Ibid, 36.
In respect of count 1, the Court imposed a sentence of 14 months. In respect of count 2, a term of imprisonment of 12 months would have been imposed. To achieve overall fairness, however, the Court decided that the terms of imprisonment should be made substantially concurrent, and so a total term of imprisonment of 16 months was imposed, comprising 14 months for the first count and an additional two months for the second count. The Court ordered that Mr Huntley be made eligible for parole in due course, and the Court further indicated that on its calculation that would occur in eight months’ time.
Mr Huntley was further dealt with in the Mandurah Magistrates Court on 4 April 2023 in respect of other illicit material found by the police. There were four counts charged and they were dealt with globally by way of a fine of $4,000. These counts involved the possession of an indecent or obscene article and selling or supplying that article. I understand that Mr Huntley shared some files depicting acts of bestiality in an online “chat room”.
Mr Huntley became eligible for parole on 23 November 2023. He chose to leave for New Zealand with Mr Terrill rather than enter immigration detention. The couple now occupy rented premises together in New Zealand. Mr Terrill continues to work as a FIFO worker, but out of Queensland rather than Western Australia. He must travel on his own expense from New Zealand to Brisbane and from there the mining company will fly him to the mine site.
REASONS
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat here:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. I am required to consider a number of so-called primary considerations. The first of these is the protection of the Australian community. Paragraph 8.1(1) makes it clear that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear that principle in mind.
Paragraph 8.1(2) requires me to give consideration to two matters: (a) the nature and seriousness of the non-citizen’s conduct to date; and (b) the risk to the Australian community of further offences being committed or re-engagement in other serious conduct.
I turn to consider the nature and seriousness of Mr Huntley’s conduct. Clearly, the pornography possession offences and the supply offences are of a very serious nature. The exploitation of children in the manner described in the sentencing remarks is entirely reprehensible. Films like these would not be made but for the marketplace that wishes to view them. It follows that those who possess and view this material directly support its production, and the material involves the grossest exploitation of children. I regard, therefore, Mr Huntley’s offending as very serious indeed. The sentence that the judge imposed was a long one, and it marked the seriousness of the offending.
I would also add that I regard the material depicting adults engaged in sexual acts with animals as very serious as well.[10] True it may be that there is apparently no question of this material involving children, but I cannot believe an adult would consent to the making of such a film unless he or she were in a situation of considerable disadvantage; for example, psychologically unwell or impoverished and seeking money. So, I regard this material as involving a strongly exploitative element as well.
[10] See Ex R2, 38.

I must also have regard to the frequency of Mr Huntley’s offending and whether there is any trend of increasing seriousness. The most serious offending consists of the possession of material comprising multiple files that had been downloaded from a chat room or something similar. Mr Huntley gave evidence, which I accept, that he downloaded a single large file which comprised multiple videos.
Mr Huntley admitted in his evidence to viewing that material when he was “high” on methamphetamine.[11] He watched it on a number of occasions. Clearly, this offending involved a great escalation from simply using methamphetamine in private.
[11] A position he maintained before the District as well: see Ex R1, 37.
All in all, I regard the nature and seriousness of Mr Huntley’s misconduct as very high indeed.
I should also mention here Mr Huntley’s addiction to methamphetamine. Participation in the drug trade is a highly antisocial practice. There is no suggestion that Mr Huntley traded in drugs, but consumers who purchase drugs do assist in the propagation of a seriously antisocial and destructive habit. Although Mr Huntley was charged with only one possession offence, he gave evidence that he had become addicted to methamphetamine, and so he must have been using it frequently. Addiction is, of course, very difficult to control, but the Australian community expects those with drug problems to seek help and to address them rather than continue to participate in antisocial acts of drug consumption.
Moreover, Mr Huntley’s own evidence was that he viewed the pornography only when he was “high”. So it is clear that the drug-taking directly prompted the commission of a very serious offence. That is a matter that needs to be borne in mind.
I must have regard to the risk to the Australian community should Mr Huntley commit further offences or engage in other serious misconduct. I bear in mind steadily what appears in paragraph 8.1.2 (1) without setting it out. I also bear in mind in particular that some conduct (and the harm that would be caused if it were to be repeated) is so serious that any risk of repetition may be unacceptable.
The sexual exploitation of children, in particular, is of the most serious societal concern. The physical ‒ and more importantly in this context, the psychological ‒ well-being of children can be substantially and permanently damaged by this appalling degradation of them. Those who possess material of this type, as I have made clear, directly support the exploitation of children for their own gratification.
In assessing the risk that may be posed by Mr Huntley to the Australian community, I am to have regard to two factors “cumulatively”: (a) the nature of the harm to individuals or the Australian community should he engage in further criminal or other serious conduct; and (b) the likelihood of his engaging in that conduct taking into account information and evidence on the risk of his reoffending and evidence of rehabilitation.
I turn to the first matter, which requires me to assume that the offending behaviour recurs. This requires me to assume against Mr Huntley that he would return to drug addiction, or at least drug use, and that he would engage again in the possession and viewing of child exploitation and bestiality material and in the supply of material depicting bestiality.
In my opinion, the harm to the Australian community of this conduct would be substantial. First, as I have said, the production of child exploitation material requires a market. The spreading of this material through the community encourages those who produce the material to pursue their efforts. That is also true of the bestiality material. Secondly, Mr Huntley has sought himself to spread corrupting material to others. All in all, the Australian community’s welfare does depend, in my opinion, on those living within it maintaining minimum standards of decency and at least a minimum moral foundation.
It is, in my opinion, true to say that certain material can destroy – it certainly warps – a person’s character so that he or she can rightly be described as depraved and indifferent to the suffering or legitimate needs of others. The presence of depraved and indifferent people in the Australian community does substantial harm to it. The present case affords an example of this. Mr Huntley said, and I accept his evidence, that he was introduced to this material by a sexual partner. In his turn, Mr Huntley passed on material (albeit not child exploitation material, but bestiality material) to others. Mr Huntley was corrupted by one person, and he then proceeded to corrupt himself and act in a way that would corrupt others.
I must also have regard to the likelihood of Mr Huntley engaging in these activities again. Here my conclusion is that the likelihood is low. First, I accept the evidence that Mr Huntley has not engaged in drug taking since his arrest. He has spent a considerable period of time in jail and has presented evidence (namely, drug testing results) that show that he has not taken drugs since entering jail.[12] That is an important start, but it is only a start since there were complicated psychological factors at play in Mr Huntley’s use of methamphetamine. Moreover, the psychological report that was before the sentencing Court and which was also before me (prepared by Ms Fowler), indicates Mr Huntley suffers from what is known as borderline personality disorder.[13] Ms Fowler’s view was that Mr Huntley used methamphetamine as a form of “self-medicator” for psychological distress.[14] It will be vital for Mr Huntley to stay away from drugs and in particular methamphetamine.
[12] Ex R1, 112.
[13] Ibid, 109 [58].
[14] Ibid, 110 [60].
That said, I do give Mr Huntley credit for maintaining a drug-free stay in jail when it is widely known that drugs are available to those that wish to access them in the prison system.
Secondly, I do believe that Mr Huntley is remorseful for his conduct, and in this respect, I refer also to the sentencing remarks.[15] The Court regarded the efforts Mr Huntley had made towards his rehabilitation as a significant factor in his favour[16] and decided that he was at a relatively low risk of reoffending. Moreover, Mr Huntley, who gave evidence in an intelligent and reasonable manner, would fully understand the consequences for him of any further offending of this type. It would inevitably lead to a longer prison sentence. He understands that he may be tracked by authorities at any time. Imprisonment will simply lead to cancellation of his visa and deportation. I believe Mr Huntley appreciates this fact and is deterred substantially by the prosect of further jail and deportation.
[15] Ibid, 41.
[16] Ibid, 42.
I note that Mr Huntley will be subject to parole conditions for another seven months or so on my calculation, and that is important as a protective and deterrent factor as well.
I believe also that I should take into account the observations of the psychologist, Ms Fowler, that Mr Huntley engaged fully and openly during his treatment.[17] That augurs well for further treatment and counselling that might benefit Mr Huntley in the future.
[17] Ibid, 110 [62].
There is, moreover, the stability of his relationship with Mr Terrill although I note that (1) the relationship was in place when Mr Huntley used methamphetamine, (2) the relationship has been volatile on occasion, and (3) Mr Terrill is a FIFO worker, which means Mr Huntley will be alone for periods of time.
Moreover, I note that the risk which I have assessed to be low is to be considered “cumulatively”, that is, in conjunction with the risk to the Australian community on the assumption the re-offending recurs.[18]
[18] I should add that I was not persuaded that this view of the matter was less likely because of certain alleged incidents of misbehaviour when Mr Huntley was in jail: see ex R2, 65-66.
I must also have regard to family violence committed by the non-citizen.[19] There have been reports made by Mr Terrill to the police concerning very heated arguments. It appears Mr Huntley threw a punch at Mr Terrill on one occasion, and on another threatened to destroy Mr Terrill’s belongings. These events involved police attendances and are, therefore, serious enough matters. There is not, however, a sustained pattern of violent interaction that would lead me to attribute significant weight to this factor. Mr Terrill was clear in his view to the Tribunal that he is committed to Mr Huntley. He has followed him to New Zealand and does not feel threatened or fearful. This is a matter where I must take into account the fact of family violence, but I do accord it limited weight.
[19] Paragraph 8.2 of the Direction.
I must consider the strength, nature, and duration of Mr Huntley’s ties to Australia. I give this consideration some, but limited weight. It is true that Mr Huntley has spent some of his formative years in Australia since coming here as a teenager. But I have no firm evidence before me of the impact Mr Huntley’s permanent departure from Australia would have on family members. I had before me a joint letter from Mr James Huntley and Ms Jaimee Sullivan.[20] They indicate they would be “saddened” to see him go, but beyond that, there is no real description of the impact of his departure. I bear in mind that ongoing contact can be sustained from New Zealand and that visits to New Zealand by family members are, presumably, possible. Although I accept that Mr Huntley has been reconciled with his father in recent years, there is no doubt that the relationship was extremely fraught, and there is no evidence before me that suggests the impact on the father would be particularly great. I note that Mr Huntley’s mother now lives nearby in New Zealand; and Mr Terrill lives with Mr Huntley.
[20] Ex R1, 90.
I do not believe the best interests of minor children arises for consideration in this case.
I turn now to the expectations of the Australian community. Paragraph 8.5 (1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. “As a norm”, albeit not as an inflexible rule, the Australian community expects the Government not to allow non-citizens to remain in Australia where they have been in serious breach of this expectation. There is no doubt that there has been a serious breach of the expectation arising from the possession of the child exploitation material and from the supply of the bestiality material. I think paragraph 8.5 (2) also needs to be weighed carefully because Mr Huntley’s offending does give rise to extremely serious character concerns. Finally, I note that I am not to assess independently the community’s expectations in any given case and the expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[21]
[21] Paragraphs 8.5(3) and (4) of the Direction.
I must have regard to other considerations under section 9. There is a non-exhaustive list provided. Here I believe I ought to consider Mr Terrill’s interests. Mr Terrill has decided to join his fiancé in New Zealand to support him and to seek to sustain their relationship. That decision is not without financial penalty for him. Mr Terrill gave evidence, which I accept, that he must find approximately $400 per week on average to fly out to Queensland. This is not a tax-deductible amount according to Mr Terrill since he is living overseas and is choosing in effect to commute to Brisbane from overseas for work. He may not deduct that travel expense on his income-tax return according to his tax accountant. I accept his evidence in that regard, and it was not contradicted by the respondent. He said he earns $120,000 per year (gross), but he must pay out approximately $20,000 from his own pocket.[22] If he were living in Queensland, which is one place the couple may settle if allowed to return to Australia, he would not have that financial burden to face each year. The couple has no circle of friends in New Zealand although no doubt in time they would build one up. I accept Mr Terrill’s oral evidence that they would consider returning to Australia in six to twelve months’ time as they have just moved to New Zealand, and he has expended a considerable amount to transport furniture and the like.[23] The financial situation is tight for the couple at the present time although Mr Huntley has yet to secure employment. That said, there are some advantages in the situation that Mr Terrill referred to in his evidence; namely, that the couple can travel together and try to put everything behind them.
[22] Approximately fifty weeks multiplied by $400 per week.
[23] I note that this evidence differed from the position put in writing (see Ex R1,5) that the couple’s plan was to visit Australia occasionally. I accept that the effect of my decision to set aside the decision under review will be to permit Mr Huntley to return whenever he wishes and for as long as he wishes.
I think I should also take into account Mr Huntley’s own interests in returning to Australia with his partner who would feel better settled there and where they may be able to live a more congenial life together. There is much in Mr Huntley’s life history that elicits sympathy. I do take into account that Mr Huntley has had in many ways an extraordinarily troubled life. I have decided that I can rely on Mr Huntley’s reports to the psychologist and his evidence to me of sexual assaults perpetrated upon him when he was young. There is no doubt that he grew up in circumstances where he may well have felt largely rejected. First, his mother appeared to reject him at birth, and then his father ultimately rejected him by asking him to leave home. This latter decision was connected with his candour to his father about his sexuality. When I take into account familial rejection and sexual abuse, Mr Huntley does present as a person who has had significant obstacles in his life and who has suffered significant harm.
I do believe that he has now met a person who cares for him and wishes to live with him despite the gravity of his offending and the fact of his deportation from Australia.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. This is a difficult case. The offending is very serious, indeed, and the community-expectations consideration speaks strongly against Mr Huntley. There is no doubt that the possession of child-exploitation material and the supply of the bestiality material are very significant crimes, and this material is highly antisocial for the reasons I have given. I am aware that the Direction requires that primary considerations be given more weight generally speaking,[24] although it is also clear law that another consideration under section 9 may in the circumstances of a particular case outweigh even strong primary considerations.[25] The risk of reoffending is low (although not zero): this has been accepted by the respondent. There has been good progress in drug rehabilitation, although this is a start only. The psychologist, Ms Fowler, notes that “[i]t is reasonable to suggest that Mr Huntley’s borderline personality disorder has directly contributed to his offending behaviour”.[26] Importantly, Ms Fowler also indicated that Mr Huntley’s use and viewing of child exploitation and bestiality material “represented self-destructive, risk-taking behaviours that are likely symptoms of his emotional regulation issues”.[27] I note the sentencing Court observed that the need for personal deterrence was significantly reduced.[28] There was full cooperation by Mr Huntley with the police investigation and remorse was demonstrated. The Court proceeded on the basis that up until the age of about 28 or 29, Mr Huntley was “really of unblemished character”.[29] Mr Huntley was introduced to child-exploitation material by another man after his temporary separation from Mr Terrill, and at the time of the offending he was using methamphetamine regularly, if not daily. The Court found that it was unable to conclude that Mr Huntley has any sexual interest in children.[30] It was not put to me that Mr Huntley has any such interest. The Court concluded that it was more likely that Mr Huntley’s offending was driven in part by his search for the next thrill or because it was taboo rather than being motivated by a sexual interest in children.[31] All this is suggestive of a person with a troubled background involving sexual abuse having taken the ill-advised step of forming associations with men who have introduced him to corrupting habits. He must take responsibility, of course, for his adult choices, but the entire background to the offending is important to appreciate.
[24] See paragraph 7(2).
[25] See, for example, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [35].
[26] Ex R1, 110 [59].
[27] Ibid.
[28] Ibid, 43.
[29] Ibid, 41.
[30] Ibid, 37.
[31] Ibid.
Of course, it may be said that Mr Huntley is now in New Zealand and Mr Terrill has shown himself prepared to follow him there. It might be thought to be in Australia’s interests that Mr Huntley stay out of the country. Mr Terrill is free to decide what he wishes to do with his life. It might be thought that if Mr Terrill wishes to spend his life with a person who views child-pornography and shares bestiality material, that is his choice. He is not yet married to Mr Huntley, although they are engaged, and he could leave the relationship.
But I think that way of looking at matters does not give sufficient give weight to Mr Huntley’s, and Mr Terrill’s, interest in pursuing their relationship, which they intend to solemnise as a marriage. In one way, Mr Terrill’s commitment to Mr Huntley is admirable as he has followed his fiancé to New Zealand despite the criminal convictions. Mr Huntley no doubt benefits from the stability in the relationship.
CONCLUSION
All in all, I have found this a difficult case as I am very concerned, rightly I believe, by the highly antisocial offending in which Mr Huntley has engaged. But I have concluded that the correct or preferable decision on the evidence before me, having weighed the considerations under the Direction, favours revocation of the cancellation decision. I believe that in all the circumstances of this case, and especially given the assessment of Mr Huntley’s risk of recidivism as low, it is appropriate that Mr Huntley and Mr Terrill be given an opportunity to re-establish themselves in their home country of Australia, using the term “home country” in Mr Huntley’s case to refer to the country where he has the greater association and sense of belonging.
I have concluded that I am satisfied that there is “another reason” for the cancellation decision to be revoked: see section 501CA(4)(b)(ii) of the Act. It follows from this conclusion that I should set aside the decision under review and substitute a decision that Mr Huntley’s
visa cancellation be revoked.
I certify that the preceding sixty-two (62)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…………[sgnd]………………
Associate
Dated: 19 January 2024
Date of hearing:  13 and 14 December 2023
Advocate for the Applicant:      Self-represented
Advocate for the Respondent:  Alex Chan
  Sparke Helmore

[2023] AATA 4370

22 December 2023

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