HWQY and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 728
•4 June 2025
HWQY and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 728 (4 June 2025)
Applicant:HWQY
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1737
Tribunal:General Member Cipolla
Place:Sydney
Date:4 June 2025
Decision:The Tribunal affirms the Reviewable Decision not to revoke the cancellation of the Applicant’s Subclass 155 Resident Return visa.
Statement made on 04 June 2025 at 12:02pm
CATCHWORDS
MIGRATION – mandatory cancellation of Applicant’s Class BB Subclass 155 Resident Return Visa under section 501(3A) – where Applicant does not pass the character test - very serious offending – producing child abuse material – communicating with the intention of making a child amenable to sexual activity- 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)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pavey and Minister for Home Affairs [2019] AATA 4198
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [ [2022] FCAFC 26
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 HWQY (the Applicant) was born in the United Kingdom on 27 March 1968.
The Applicant arrived in Australia as a toddler, aged 3, and has lived in Australia for the past 55 years.
The Applicant’s elderly mother and two sisters reside in Australia. His mother is an Australian citizen. Both the Applicant’s sisters are also Australian citizens.
The Applicant is an Australian permanent resident and never took out citizenship.
The Applicant has been married twice. He was married for the first time when he was 31 years old and he and his first wife Ms CB, have a daughter Ms ER, who is 21 years old and is described by the Applicant as both financially and emotionally dependent on him.
The Applicant and his first wife divorced in 2006-2007. The Applicant met his second wife Ms SP in 2008, and he married her in 2015. The Applicant’s second wife had an infant daughter Ms XM (aged 2 at the time) from a former relationship and the evidence indicates that the Applicant raised Ms XM as if she was his biological daughter.
The Applicant and his second wife separated in 2018 due to his second wife’s methamphetamine addiction. The Applicant’s second wife left the marital home in 2017.
After the breakdown of his second marriage the Applicant started using methamphetamines. The evidence indicates that the Applicant used methamphetamines between 2017 and February 2022.
Prior to this, the evidence indicates that the Applicant had maintained stable employment in the automotive industry in South Australia and that he had been a good financial provider to his family.
The Applicant has described his descent into methamphetamine abuse as causing his life to traverse into a downhill trajectory and the Applicant described that he lost his job, his career, his home and his friends. The Applicant also claims that he slumped into depression.
OFFENDING BACKGROUND
The evidence before the Tribunal indicates that the Applicant has been convicted of a number of driving offences commencing in 1989. At that time the Applicant was convicted of driving with an excessive blood alcohol level for which he was fined $350 and the loss of his license for eight months. In the same year the Applicant was convicted of disobeying traffic lights and exceeding the speed limit. In 1997 the Applicant was convicted of driving whilst unlicensed, exceeding the speed limit and a further count of driving unlicensed.
On 25 June 2007, the Applicant was convicted of driving without due care-aggravated offence for which he was fined $200 and subject to a licence disqualification for six months. The Applicant was also convicted on the same day of driving with excess blood alcohol for which he was fined and subject to a six-month period of disqualification. The Applicant stated at hearing that with respect to this offence he was driving whilst affected by alcohol and that he drove the motor vehicle over some rocks causing significant damage to the vehicle, which was written off. The Applicant stated that as a consequence he had to repay his then employer for the replacement of the motor vehicle as the incident was not covered by insurance because of the drink-driving aspect of the offending.
On 6 October 2022 the Applicant was convicted in the Magistrates Court of South Australia with failing to comply with his District Court bail conditions with respect to his index offending of produce child exploitation material and make a child amendable to sexual activity. The breaches which occurred on 20 February 2022 involved the Applicant driving a motor vehicle whilst disqualified by a court from doing so, being in the presence of a child without a supervising adult and engaging in social media whilst being prohibited from doing so. The breaches led to the revocation of bail on 21 February 2022 and the Applicant being convicted to a term of 7 weeks imprisonment.
The Applicant was convicted in the South Australian District Court on 2 March 2023 with produce child exploitation material and communicate to make a child amenable to sexual activity, the Applicant was also convicted with respect to the above-mentioned failure to comply with his bail agreement with Judge Kudelka taking into consideration time already served by the Applicant in prison with respect to the bail breaches. The Applicant was sentenced by the District Court to two years and three months imprisonment with a 15- month non-parole period.
On 10 May 2023, the Applicant was convicted of driving whilst disqualified or suspended for which he was convicted without penalty.
The evidence indicates the child abuse offending occurred between October 2019 and March 2020.
With respect to the production of child exploitation material, the evidence indicates that the Applicant was communicating with a person, a woman, who happened to be an undercover police officer. The communications commenced on 17 October 2019 and continued over several dates until January 2020. The communications occurred on a number of online chat sites, KiK, and WhatsApp. During these conversations the Applicant questioned whom he thought was a 13-year-old girl about her sexual experience and asked her whether she wanted to make out with him. The Applicant also offered to show the girl how to engage in several sexual acts and sent her a picture of a vagina as part of a description of female masturbation. The Applicant also spoke with whom he thought was a 37-year-old woman about his fantasy of the woman engaging in penetrative sexual acts with a 10-year-old girl.
With respect to communicating with the intention of making a child amenable to sexual activity, the evidence indicates that during the Applicant’s communications with an undercover police officer who was purporting to be a 13-year-old girl, the Applicant requested photographs of the girl, questioned her about her sexual experience, asked the girl if she wanted to make out with him, offered to show the girl how to engage in sexual acts and that the Applicant sent her an image of a vagina as part of describing female masturbation and offered to pick the girl up from her home in order to try it.
Further offences of communicating with the intention of making a child amenable to sexual activity occurred in the context of the Applicant communicating with another police officer also purporting to be a 13-year-old girl. These communications commenced on 14 March 2020. On 16 March 2020 the Applicant asked the girl if she watched pornography. On 18 March 2020 the Applicant sent a message to the girl advising that he had been watching pornography and asked her about her level of knowledge and experience with respect to certain sexual acts. The Applicant asked the girl whether she wanted him to show her how to engage in sexual activity.
The evidence indicates that these communications with undercover police operatives were not the only such communications that the Applicant had been involved in. The evidence indicates that between July 2018 and October 2019 the Applicant had conversations with an undercover police operative purporting to be a 14-year-old girl with the Applicant requesting to meet up with her. These particular conversations were not the subject of sentencing in the District Court however, they were taken into consideration with respect to the District Court judges consideration of leniency. The sentencing judge in the District Court of South Australia noted that “the most important factor is the protection and safety of the community. Children are vulnerable members of the community particularly because of their access to and familiarity with the Internet. They are vulnerable to online sexual predators, unfortunately that is why the community needs to have undercover police officers engaged in this work. They need to catch people with that inclination in order to protect the children in the community”.
The evidence before the Tribunal indicates that prior to his sentencing in the District Court of South Australia on 2 March 2023, the Applicant was residing in the community and was subject to strict bail conditions that were imposed on him by the District Court on 15 December 2021.
The evidence before the Tribunal at page 290 of the Respondents tender bundle is a police facts sheet relating to the Applicant’s activity on 20 February 2022 that led to him breaching his bail conditions and being imprisoned. The police facts sheet indicates that on 20 February 2022, the Applicant was found driving a motor vehicle whilst disqualified by the court from doing so. On 20 February 2022 the Applicant breached his bail conditions because he was found to be in the company of a child whilst being on bail with respect to child exploitation matters. On 20 February 2022 the Applicant breached his District Court bail conditions by accessing social media platforms whilst he was prohibited from doing so. The facts around this offending are captured in the material provided by the South Australian Police Force.
The Applicant as a consequence was taken into custody on 21 February 2022, after breaching his bail conditions. The breach was with respect to the Applicant communicating with, and being in a hotel room with, two children aged 13 and 14 who were under the guardianship of the Minister whom he had met through social media. No formal criminal charges were pursued with respect to this incident on the basis of insufficient evidence available to police to ground a successful prosecution. However as discussed, the incident on 20 February 2022 was sufficient to ground convictions for the breach of 3 bail conditions.
DISTRICT COURT SENTENCING DECISION AND PSYCHOLOGICAL ASSESSMENT BY DR LIM
Her Honour Judge Kudelka in the District Court of South Australia in her sentencing comments dated 2 March 2023 noted that the Applicant had pleaded guilty to one count of producing child exploitation material, and two counts of communicating with the intention of making a child amenable to sexual activity.
With respect to the production of child exploitation material Judge Kudelka noted that the Applicant was communicating with a person whom he believed to be a 37-year-old woman. The woman happened to be an undercover police officer. Communications with this police officer commenced on 17 October 2019. In these conversations, the Applicant had identified himself as a male who was interested in real-life sexual scenarios involving young girls. The sentencing comments note that on several dates between October 2019 and January 2020 the Applicant was engaged in chats via Kik and WhatsApp regarding sexual interest in underage children. The conversations were with respect to the engagement of sexual conduct with children and an interest in recording a woman engaging in penetrative sexual acts with a 10-year-old girl.
With respect to count 3, the offence of communicating with the intention of making a child amenable to sexual activity, the sentencing comments indicate that the Applicant believed that he was communicating with a 13-year-old girl, however, he was in fact communicating with a police officer. The communications commenced on 7 April 2019. The evidence indicates that between 4 March and 19 March 2020 the Applicant requested photographs of the 13-year-old girl and questioned her about her sexual experience and asked her whether she wanted to make out with him. The Applicant also offered to show the 13-year-old girl how to engage in several sexual acts and the Applicant sent the 13-year-old girl an image of a vagina as part of a description of female masturbation and advised the girl that he would pick up from her residence in order for her to try it.
With respect to count 4 Judge Kudelka noted that the other offence of communicating with the intention of making a child amenable to sexual activity, occurred in the context of the Applicant’s communications with another police officer who was also purporting to be a 13- year-old girl. These communications commenced on 14 March 2020. On 16 March 2020 the Applicant asked the girl whether she watched pornography and on 18 March sent her a message stating that he had been watching pornography and asked her about her level of knowledge and experience with certain sexual acts. The Applicant also provided a description of how to engage in sexual acts and asked the 13-year-old girl whether she wanted the Applicant to show her how to engage in sexual activity. The sentencing comments note that these communications were not isolated and that there were other communications with an undercover operative purporting to be a 14-year-old girl that occurred between July 2018 and October 2019 and that on a number of occasions, the Applicant asked to meet up with the girl. The sentencing comments note that “you are not to be sentenced for those uncharged communications, however, the fact that this offending was not isolated reduces leniency when I come to sentence you for the charged communications”.
Judge Kudelka makes reference to a psychological report that had been tendered to the District Court from Dr Lim a psychologist dated 11 January 2023. The report from Dr Lim indicates that the Applicant had engaged in marijuana use in the past but had not engaged in its use since the mid-1990s. The report notes that after the Applicant’s separation from his second wife that he started using methamphetamines because he believed that the drug would make him feel better and that he used the drug on his days off and on weekends, when that his daughters were not around. Dr Lim states that the Applicant advised that the drug made him socially withdrawn because he would go to work, return home and smoke the drug. The Applicant advised that he was using between 1 and 2 grams of methamphetamine a week. The Applicant claimed that he was self-medicating because he felt depressed by his circumstances after the breakup of his marital relationship.
The sentencing comments note that at the time of the Applicant’s interview with Dr Lim in September 2022, he described his engagement in online chat rooms as part of a ‘fantasy world’ and denied any sexual gratification. However, the sentencing comments note that in a second clinical interview with Dr Lim in January 2023 it was noted that the Applicant “admitted that you obviously had a fascination with children that gave you some gratification”.
The sentencing comments note that in Dr Lim’s opinion the Applicant’s primary sexual preference was for adult females, and that she did not believe that the Applicant’s current offending was sufficient to support a firm conclusion that he was a paedophile, and that his arousal with respect to these conversations was more than likely heightened by his drug use. Dr Lim noted that the Applicant advised her that he used the drug to help with depression and emotional distress after the breakdown of his second marriage in 2018. Dr Lim noted that the use of methamphetamines can lead to a temporary improvement in a person’s mood but also can result in recklessness and heightened sexual impulses. Dr Lim does note that the Applicants “risk may increase once you are released into the community if you do not undergo targeted therapy in the meantime”.
Judge Kudelka noted that the Applicant’s failure to comply with a bail agreement was concerning and noted that the Applicant had been convicted and sentenced to a period of seven weeks imprisonment for those breaches. The sentencing comments note that as a consequence of the Applicant’s breach of bail, his bail was revoked on 21 February 2022. The sentencing comments also note that another breach of the bail agreement occurred on 7 April 2022 in the context of the Applicant using the Kik Messenger app contrary to a condition of his bail.
Judge Kudelka notes that in “sentencing you for this offending the most important factor is the protection and safety of the community. Children are vulnerable members of that community, particularly because of their access to and familiarity with the Internet. They are vulnerable to online sexual predators; unfortunately, that is why the community needs to have undercover police officers engaged in this work. They need to catch people with that inclination in order to protect the children in the community’. Judge Kudelka also states that “there is no doubt that this offending is extremely serious and there is a paramount need to keep children safe. It places a burden upon the police to do that”. Judge Kudelka states that she hoped that the Applicant, with professional help and determination, had prospects of turning his life around and hoped that the Applicant would be able to access an appropriate program whilst in custody or whilst on parole in the community and for that reason she imposed a non-parole period of 15 months imprisonment. Judge Kudelka noted that in fixing the non-parole period she was mindful of the fact “that this offending is extremely serious and there is a paramount need to keep children safe. It places a burden on the police to do that”.
APPLICANTS UNDATED STATEMENT AND APPLICANT’S STATEMENT OF FACTS STATEMENTS AND CONTENTIONS DATED 1 MAY 2025 AND SUPPLEMENTARY REPORT FROM LOUISE SASSI PSYCHOLOGIST
The Tribunal received, and has duly considered, the material in the Applicant’s tender bundle which included a statement by the Applicant which is undated, and a document described as a Statement of Facts Issues and Contentions dated 1 May 2025 and a report from a Clinical Psychologist Ms Louise Sassi dated 14 April 2025.
The Applicant advised that he had made concerted attempts to obtain legal representation for the purposes of this review contacting both Legal Aid South Australia and the Legal Services Commission and that he had also approached a number of community-based legal organisations.
The Applicant acknowledged that his sentence in the District Court of South Australia of two years and three months grounded the mandatory cancellation of his Subclass 155 visa. The Applicant submitted that not only did it lead to a period of imprisonment but also lead to what the Applicant described as “serious and unintended consequences that followed, consequences that extend well beyond what was contemplated by the sentencing judge. It is these disproportionate impacts that raise genuine concerns about whether the outcome aligns with the principles of justice and proportionality”.
The Applicant notes that at the time that he was sentenced in the District Court of South Australia Judge Kudelka, the sentencing judge, “made her decision based on the law and policies as they applied at that time, without any indication of the severe immigration outcomes that would later arise. These consequences included automatic cancellation of my visa, prolonged immigration detention beyond my non-parole period (1 year and 3 months), the risk of permanent removal from Australia, the only country I’ve ever truly called home, and, most devastatingly, the separation from my family, particularly my daughter and elderly mother”.
The Applicant states that his expectation based on the comments made by the sentencing judge in South Australia was that he would serve 1 year and 3 months in prison before becoming eligible for parole. The Applicant states that his expectation was that he would be released and reunited with his family at that point. The Applicant states that “the court did not intend for me to face additional hardship beyond the custodial sentence imposed, nor did it anticipate an extended period of incarceration due to administrative or immigration -related delays”. The Applicant submits that the sentencing judge took into consideration his personal circumstances and put in place a sentence intended to support his rehabilitation and reintegration into the Australian community. The Applicant states that the judge did not factor in the possibility of visa cancellation or its consequences or the hardships that “I have endured… and go far beyond what the court considered proportionate”.
The Applicant stated that serving two years and three months in prison, twelve months beyond his non-parole period, was not attributable to misconduct whilst in prison or failure to comply with any correctional requirements. He noted it occurred as a result of the administrative and systemic failures that included delay in completing an Individual Development Plan and unavailability of a Sexual Behaviour Course, which was required for his parole along with uncertainty with respect to his visa status.
The Applicant stated that following the unnecessary extension of his period of imprisonment he was transferred to immigration detention where he has remained for the past 11 months adding to his confinement and causing “serious and enduring hardship to me and my family”.
The Applicant describes in his statement at page 2 that he experienced a deeply traumatic time in prison where he was physically assaulted multiple times and where he witnessed horrific violence, with prisoners being beaten so severely, they lost control of their bodily functions or suffered acquired brain injuries. The Applicant states that “having endured such a harrowing experience, I am absolutely determined never to risk reoffending or returning to that environment”.
At point 5 of his submission, the Applicant states that a key consideration for the Tribunal is that he poses a low risk of reoffending, and this is confirmed by independent psychological assessments and treatment letters of Dr Lim and Ms Sassi which note that his offending occurred under specific circumstances that have been addressed, that he was of good behaviour during his period of incarceration. The Applicant states that he is reliant on the report of Loretta Sassi, psychologist dated 14 April 2025 which notes that the Applicant has strong prospects for rehabilitation and reintegration into the community.
With respect to Ms Sassi the Applicant notes that she is an experienced Clinical Psychologist who worked with him across a number of sessions whilst he has been in immigration detention, and that she has concluded that he presents as a low risk of reoffending, and that he indeed falls into the lowest possible category with respect to reoffending, which aligns with earlier findings by Forensic Psychologist Ms Lorraine Lim.
The Applicant submits that the two psychological assessments support a view that he does not pose a risk to the Australian community and that his continued residence in Australia would be consistent with community safety and public interest. The Applicant submits that significant weight should be given to these psychological assessments by the Tribunal.
The Applicant noted that he is subject to the conditions of the Australian National Child Sex Offender Register (ANCOR) and that the conditions that he is subject to include mandatory reporting, monitoring of internet use, employment, and travel, restrictions on unsupervised contact with children and strict compliance with changes to his personal details along with routine check ins. The Applicant submits that “these conditions provide robust safeguards and demonstrates that community safety can be effectively maintained without the need for my removal from Australia”.
In addressing the requirements with respect to Ministerial discretion under s 501CA(4) of the Act, the Applicant notes that the Tribunal may revoke his visa cancellation if there is a compelling reason that exists to do so. The Applicant posits that the following compelling circumstances are present in his case. “The unjust extension of my incarceration caused by administrative failings; The significant and unintended hardship of 11 months in immigration detention; My low risk of reoffending, supported by more than one professional assessment; My deep personal ties to Australia, including family and community connections. These factors together justify the exercise of discretion of the Tribunal to revoke the visa cancellation”.
With respect to his family and the strength of ties to Australia the Applicant submitted the following:
I respectfully submit that I am a long-term resident of Australia, having arrived in 1971 as a three-year-old child. I have now lived in Australia for over 54 years. This country is the only home I have ever known. My entire life, education, employment, family relationships, and community involvement has been established and maintained here. I have no meaningful connections outside Australia; I do not have any family, social ties, or support systems overseas.
Deportation in my circumstances would give rise to significant legal, social, psychological, and economic hardship, not only for me, but for my family. My Australian-born daughters and my elderly mother, who relies on me for daily care and emotional support, would be directly and severely affected. Our relationships are close and interdependent. Any forced separation would result in a profound disruption to our family unit and would constitute an arbitrary interference with family life.
Under international human rights law, including treaties to which Australia is a signatory, such as the International Covenant on Civil and Political Rights (ICCPR), individuals who have spent the majority or entirety of their lives in Australia may have a legitimate expectation of protection from removal, particularly where such action would infringe upon family unity, the rights of the child, and result in undue hardship.
I respectfully ask the Tribunal to take these matters into careful consideration. In addition to the severe emotional and practical impact on my family, deportation would place me at significant personal risk. I would be sent to a country where I have no familial ties, no community, and no support network. This would likely result in destitution, social isolation, and serious harm, circumstances which may constitute a breach of Australia’s obligations under international human rights law, including protections against inhumane or degrading treatment and arbitrary interference with family life.
In conclusion, the Applicant states that the cumulative impact of his imprisonment and subsequent immigration detention have been “grossly disproportionate and fundamentally unfair”. In this respect the Applicant stated that:
I have already served a sentence that exceeded what the sentencing court intended.
I have endured a period of immigration detention and now face the prospect of deportation, consequences that were never contemplated by the criminal court at the time of sentencing.
Independent psychological assessments have consistently found that I do not pose a threat to the community.
My continued detention and potential removal are excessive in light of the nature of my original offending, particularly given that I am already subject to ongoing reporting obligations under the Australian National Child Offender Register (ANCOR).
Deportation would result in severe consequences for my family, who depend on me and raises significant concerns under Australia’s international human rights obligations.
In view of the unintended and excessive consequences I have endured, I respectfully request that the Tribunal exercise its discretion to revoke the cancellation of my visa. I ask to be allowed to remain in Australia, the only home I have ever known, where I have served my time and am committed to rebuilding my life and making a positive contribution to society.
As noted, the Applicant submitted a report from Ms Loretta Sassi, a Clinical Psychologist dated 14 April 2025 which he relies upon, and the contents of that report are replicated in full below.
To follow is a Summary Psychological Treatment letter regarding services delivered to HWQY by Loretta Sassi, Clinical Psychologist, between 26 August 2024 and 14 April 2025. During this period nine appointments have been undertaken onsite at Detention Centre, Kilburn (45 minutes per session plus 15 minutes clinical notes preparation). An additional session is scheduled in the coming month of May 2025
Loretta Sassi has been practicing as a psychologist for 25 plus years across a broad range of psychology roles including within forensic, clinical, and organizational contexts. She recently completed a Master’s Degree (Post Registration) in Clinical Psychology at the Cairnmillar Institute in Melbourne and completed the registrar program for Clinical endorsement having access to Forensic and Clinical Case supervision weekly.
Reason for Treatment
HWQY was referred for psychology whilst in detention at the Immigration Detention Centre in Kilburn. The referral from International Health Medical Services (IHMS) requested the provision of psychology for assistance with psychological issues surrounding his obesity, excessive overeating, and addictions.
Treatment
Sessions have focused on developing strategies and growing insights via an evidence-based Cognitive Behavioural Therapy (CBT) approach with HWQY showing good understanding, insight and adoption of same whereby he has clearly articulated and demonstrated his commitment to managing his overeating and remaining abstinent from drugs citing reasons for same. Whilst in detention this has been evidenced by his management of his eating, increased regular exercise and loss of weight establishing a new health routine. He reports that whilst being in Detention it has ironically provided benefits to him reaffirming his commitment to his health and his family and served to remind him of the importance of his family relationships. He describes his relationships with his two daughters, former wife and his mother as “good /excellent” citing strong positive bonds and ongoing regular contact. On the flip side he notes that at times he feels guilty and extremely remorseful for what he has put them through as he navigates his VISA situation on a background of incarceration. In this regard he is remorseful and experiences guilt for the pain and collateral damage to his family, especially his daughter Ms ERMs ER. He is keen to ‘make good’.
More recently since March 2025 HWQY has appeared stressed with description of his brain being like “smashed glass”, in relation to his preparations for upcoming matter in relation to VISA. In particular, he noted his concern about a number of inaccuracies in the 20-page rejection document and was overwhelmed by the task ahead of him to show/illuminate these discrepancies. He reports that one of his concerns is being able to clarify for the Judge that the reason for not participating in rehabilitation programs during his incarceration had nothing to do with his lack of interest or declining same but instead was a result of “bad-timing” of course delivery during his incarceration which prevented him from undertaking. HWQY reports that he was a model prisoner during his incarceration despite his regrets of pleading guilty (as per the instructions of his lawyer) highlighting that his behaviour was an anomaly not a pattern. HWQY noted same was described by Forensic Psychologist report Lorraine Lim in her sentencing report.
He reports as a model detainee positively participating in all activities as well as helping and assisting other detainees with their technology, banking and English as a second language issues. Whilst in detention this includes participation in the Smart Recovery Program to good effect and at all of our Psychology sessions has been punctual, engaged, as well as honest and vulnerable. He presents as a reliable and trustworthy source and in combination with his honesty and vulnerability has resulted in excellent insight and awareness during our CBT sessions (despite not undertaking the rehabilitation program whilst incarcerated) which bodes extremely well for a successful future.
Risk/Prognosis
It is highly likely based on HWQY’s historical and current circumstances and as supported by rehabilitation to date and level of insight that his risk of future offending across high, moderate and low remains in the low range. Note, there is no range of ‘zero risk’ with ‘low risk’ being the lowest category used here. In this regard it is useful to note that in her sentencing report HWQY reports Forensic Psychologist Lorraine Lim identified HWQY as being low risk also.
I trust this summary letter will prove helpful in clarifying aspects of HWQY’s presentation, treatment, and eligibility to remain in Australia.
In the Applicants additional material, a Statement of Facts Issues and Contentions dated 1 May 2025, the Applicant largely reiterates the evidence put forward in the undated submission.
The Applicant acknowledges that he did not pass the character test under s 501(6) of the Act and reiterates there is another reason that he wished the Tribunal to consider with respect to Direction 110 and the revocation of the cancellation decision.
The Applicant acknowledged the serious nature of his past offending. He noted that with respect to his rehabilitation since being in prison, and in immigration detention, that he had engaged in the Smart Recovery Program and had also engaged in counselling with a psychologist in immigration detention. The Applicant advised that he is committed to continuing with therapeutic support if he is released into the community and noted that the psychologist that he had been engaging within in detention, Ms Sassi, had opined that his risk of reoffending was low. The Applicant contends that there was no physical contact with children with respect to his offending and that his offences involved online communications with covert police officers not real children. The Applicant acknowledges that whilst this is serious that ‘context’ is important.
The Applicant states that his risk of reoffending is low given his cessation of drug use since early 2022 when he was imprisoned, his engagement with rehabilitation services, and psychological counselling, his strong family support networks, his age and maturity, the deterrent effect of a lengthy term of imprisonment and his ongoing commitment to recovery.
The Applicant notes that the sentencing judge carefully weighed all the relevant factors with respect to his offending behaviour in determining a sentence that was proportionate to the circumstances of the case.
The Applicant noted the fact that he was now on a national child sex offender register which came with a range of protective requirements and with significant oversight.
The Applicant claimed that he had no convictions for family violence and that the South Australian police records were what he described as historical, untested and that police did not pursue a conviction and should be given minimal weight.
The Applicant notes that with respect to his ties to Australia, that he has resided in Australia for over 50 years since the age of three. He has no meaningful ties to the United Kingdom. His immediate family reside in Australia. The Applicant contends that he provides critical emotional support to his daughter Ms ER, who faces a number of mental health challenges.
The Applicant notes that there are no minor children in his life in Australia but further notes that his daughter and stepdaughter despite being adults are still in need of his ongoing parental support.
The Applicant acknowledges that with respect to expectations of the Australian community that the Australian community expects non-citizens to obey its laws but also posits that the community values rehabilitation, second chances, and fairness.
The Applicant takes issue with the Respondent’s reliance on historical allegations and reports particularly with respect to domestic violence between he and his ex-wife which occurred during a protracted custody battle.
With respect to the legal consequences of non-revocation the Applicant notes that the Applicant being on the sex offender register in Australia would be shared with the authorities in the United Kingdom and would affect his ability to resettle in that country. The Applicant claims that he would suffer extreme hardship due to separation from his family and support networks in Australia. The Applicant states that the extended period of time that he has spent in immigration detention after a lengthy period of imprisonment has caused substantial emotional and psychological distress. The Applicant points to the fact that he has no family, friends or social support networks in the United Kingdom and limited employment prospects due to his age.
In conclusion, the Applicant believes that there are other reasons to revoke the cancellation of his visa. The Applicant submits that the Australian community is sufficiently protected by his demonstrated rehabilitation, the low risk identified in psychologists’ assessments and the powerful deterrent effect of a period of imprisonment along with his ongoing monitoring on the sex offenders register. The Applicant states that significant weight should be placed on the strength, nature of and duration of his ties to Australia, the fact that he has a daughter and stepdaughter in Australia, who despite being adults are still emotionally dependent on him. The Applicant stated that due to his period of imprisonment and extended period of immigration detention, he is a changed man.
RESPONDENTS STATEMENT OF FACTS, ISSUES AND CONTENTIONS AND SUPPLEMENTARY DOCUMENTS
The Tribunal has duly considered the Respondent’s SFIC dated 24 April 2025.
By way of background the submission notes that the Applicant was born in the United Kingdom in 1968 and arrived in Australia at three years of age.
With respect to the Applicant’s offending history the submission notes that this commenced in 1989 with respect to a range of traffic offences, including driving with excess blood alcohol, driving a motor vehicle with methamphetamines and non-compliance with a number of road rule requirements. It was also noted that the Applicant failed to comply with conditions of his Local Court bail conditions in April 2020 when he persisted in accessing social media when precluded from doing so. The Applicant also breached his District Court bail agreement in February 2022 when he drove a motor vehicle whilst disqualified or suspended, engaged in social media whilst being prohibited from doing so, and was found in the presence of a child without a supervising adult. For these breaches the Applicant was convicted by the Magistrates Court of South Australia in October 2022 to a period of imprisonment of 7 weeks.
The submission refers to the convictions in the District Court of South Australia on 2 March 2023, namely produce child exploitation material, communicate to make child amenable to sexual activity, and failure to comply with a bail agreement. The submission notes that because of the term of imprisonment imposed upon the Applicant that the Applicant did not satisfy the character test as defined in s 501(6) of the Act on the basis of him having a “substantial criminal record” as defined in s 501 (7)(c) of the Act.
With respect to Direction 110 the submission notes that having regard to the protection of the Australian community and indeed the nature and seriousness of the Applicant’s conduct that sexual crimes against children are considered by the Australian government and Australian community to be very serious. The crimes committed against vulnerable members of the Australian community were viewed seriously by the Australian government and Australian community. Regard must be had to the fact that the Applicant had been sentenced to a period of imprisonment which was indicative of the seriousness of his offending. The submission notes that the Applicant had engaged in frequent offending dating back many years with the trend of increasing seriousness from traffic offences progressing to sexual offending. The submission notes that the Applicants repeat offending has caused significant harm to the community, particularly vulnerable members of the community, namely children.
The submission notes that South Australian police records indicate that there have been serious allegations made against the Applicant engaging in sexual behaviour with children and supplying methamphetamine to children. Reference is made to pages 141-146 of the tender bundle a South Australian police affidavit in which a child mentioned that the Applicant was purchasing methamphetamines and alcohol for them and had engaged in sexual behaviour with them. A decision was made not to prosecute the Applicant in this matter, on the basis of insufficient evidence to affect a successful prosecution.
With respect to whether the Applicant poses a risk to the Australian community the submission notes that the Applicant, because of his key offending, poses an unacceptable risk of harm to the Australian community. The submission notes that sexual offending against children can cause serious and long-standing psychological harm.
The submission notes that the Applicant claims that his use of methamphetamines and his engagement in sex offending behaviour was attributable to the breakdown of his two marital relationships. The submission notes that the risk of reoffending remains unacceptably high due to the fact that the Applicant had been addicted to methamphetamines for an extended period of time. Further that the Applicant’s sexual offences did not consist of an isolated lapse of judgement but indicate that the Applicant had engaged in inappropriate conversations with minors from October 2019 through to March 2020. The submission notes that this risk is heightened by the fact that the Applicant had failed to comply with a bail agreement committed in April 2020 when he was accessing a social media website from which he was precluded by his bail conditions from accessing.
Reference was made to the sentencing comments in the District Court of South Australia where the sentencing judge noted that in a second interview with Dr Lorraine Lim the Applicant had admitted that he had a fascination with children that gave him some sense of gratification.
Reference was made to the report of Dr Lim for the purpose of the Applicant’s sentencing in the District Court of South Australia who opined that the Applicant required targeted therapy to address his substance issues and to build insight with respect to his offending behaviour. The submission noted that apart from the SMART Recovery program that the Applicant had not to date, engaged in a targeted program.
The submission notes that limited weight should be placed on the Applicant’s character references on the basis that this support network did not prevent the Applicant from committing crimes in the past, and there is no compelling evidence to suggest that this support would be effective in the future. The submission notes that the Applicant’s biological daughter Ms ER had at one point in time stated that she did not care about her father’s prospective deportation but later rescinded that statement.
The submission notes that the totality of the evidence before the Tribunal was such that with respect to protection of the Australian community and that this consideration weighed heavily against the revocation of the Applicant’s visa.
With respect to family violence the submission notes that the Applicant had not been convicted of any family violence however the South Australian police reports indicated that the Applicant had been the subject of a violence restraining order that had been made in or around May 2007 and that the protected person was the Applicant’s first wife Ms CB. The submission notes that according to the police records, the Applicant was recorded as attending Ms CB’s home causing property damage and putting her in fear and that the victim had been subjected to verbal and emotional abuse from the Applicant. The police records further indicated that there appeared to be a history of large volumes, (over 500) of nuisance and threatening text messages to Ms CB which prompted her to change her number. Reference was made to telephone calls made to Ms CB by the Applicant on 21 May 2007 in which it is alleged that the Applicant made a range of threatening comments. The police records indicated that there was a further incident in or around February 2008 where the Applicant’s sister was told to pass on a message to Ms CB of a threatening nature. The submission notes that these issues would be put to the Applicant in cross examination and if the evidence indicated that the Applicant had engaged in family violence that this consideration weighed in favour of non-revocation of the cancellation of the Applicant’s visa.
With respect to strength, nature and duration of ties to Australia the submission notes that in terms of immediate family members that the Applicant’s mother and two sisters reside in Australia and are all Australian citizens. The Applicant’s biological daughter is an Australian citizen as is his stepdaughter and his first ex-wife. The submission notes that the Applicant’s mother had been diagnosed with stage IV peritoneal cancer. The Applicant’s daughter had according to the Applicant, mental health issues that involved one failed suicide attempt. The Applicant’s stepdaughter had written a letter of support with respect to the Applicant’s role in her life. The Applicant’s first wife Ms CB still held the Applicant in high regard. The Applicant also provided a statement from a close friend and former employer. The submission noted that this consideration overall weighed in favour of revocation of the cancellation of the Applicant’s visa however, this was outweighed by the other primary considerations.
With respect to best interests of minor children in Australia the submission notes that the Applicant’s daughter and stepdaughter are both over the age of 18 and hence this consideration weighed neutrally in this matter.
With respect to the expectations of the Australian community the submission noted that the Australian community expects non-citizens to obey Australian laws whilst in Australia. The submission notes that the Minister contends that in accordance with the principles set out in Direction 110, the Australian community would expect that the Applicant would not hold a visa on account of the serious crimes he had committed particularly given the fact that they involved serious sexual crimes against children. The Minister contends that this consideration weighs heavily against revocation of the Applicant’s visa.
With respect to other considerations, the submission notes that the Applicant is liable to be removed from Australia as a result of the non-revocation of his cancelled visa and the Tribunal should therefore take this legal consideration into account. The submission notes that other consequences would flow from a non-revocation decision, namely the Applicant would be prohibited from applying for another visa and would be subject to periods of exclusion along with special return criteria as a result.
With respect to impediments if the Applicant is removed the submission notes that the Applicant has claimed that he would have no financial or practical support in the United Kingdom given that his entire support network is in Australia. The Applicant has claimed that he has no money or financial support, no place to live or employment, and no social or family support in the United Kingdom. The Applicant has declared a number of medical issues namely an adjustment disorder, hypertension, osteoarthritis and substance use disorder. The Minister’s position with respect to this is that there are no meaningful language or cultural barriers if the Applicant was to return to the United Kingdom and that as a citizen of the United Kingdom he would have access to social, medical and economic support in that country and that given the Applicant has expressed confidence in finding employment upon release in Australia the Minister submits that there is no reason to believe that he would be unable to find work in the United Kingdom. The Minister contends that other considerations weigh marginally in favour of revocation.
In conclusion, the Minister states that the primary considerations of protection of the Australian community and the expectations of the Australian community weigh very heavily against revocation and outweigh any primary or other considerations in favour of revocation. The Minister contends that the correct and preferable decision is to affirm the decision under review.
EVIDENCE AT REVIEW HEARING
The Tribunal conducted a review hearing on 12, 20 and 21 May 2025 and the Applicant attended the hearing via video conferencing facilities and gave evidence under affirmation. The Applicant was not represented. The Minister was represented by Mr Alex Chan, Special Counsel from Sparke Helmore Solicitors who also attended the hearing via video conferencing facilities. The Applicant’s mother, daughter and step-daughter and psychologist Ms Sassi were cross-examined during the hearing and gave evidence under affirmation.
As the Applicant was unrepresented in the review at the outset of the review hearing, the Tribunal explained in detail to the Applicant how adversarial hearings were run, the collation and consideration of evidence prior to the conduct of the review hearing, the respective issues in the review, the process of merits review, and the prospective outcomes of the review.
The Tribunal also assured the Applicant that witnesses who had provided statements of support on behalf of the Applicant could be cross-examined by the Respondent’s representative. The Tribunal noted that the questioning was confined to the contents of their statements and in the Tribunal’s experience this had always been done in a courteous and sensitive manner.
The Applicant, under affirmation, was taken through his evidence by the Tribunal.
The Applicant advised that he was born in Edinburgh Scotland in 1968 and that he travelled to Australia with his parents and two sisters in 1971, the family settled in Adelaide. The Applicant completed primary school in South Australia and completed up to year 11 high school. The Applicant then completed a trading fitting and machinery which took four years and required both technical college attendance and work experience under supervision. The Applicant described himself as a fitter and machinist by trade. The Applicant stated around the age of 30 he changed careers moving to the car industry and working in sales where he worked his way up to management and eventually to the position of dealer principal overseeing three car sales franchises.
With respect to his criminal history, the Applicant stated that he had some historic driving offences that included driving under the influence of alcohol and what he described as additional minor offences. The Applicant referred to an incident in 2007 at which time he was driving under the influence of alcohol and that he crushed a work car. Due to the fact that he was intoxicated, insurance did not pay for the vehicle, the Applicant stated that he took responsibility for the damage to the vehicle which was written off and that he paid $40,000 in reparation. The Applicant stated that during periods in which he lost his license that he would accompany people who were considering the purchase of a motor vehicle and that the company that he worked for was happy to support him in this respect.
The Applicant advised that his father passed away in 1998 and that his mother, who is currently 79, had recently struggled with stage IV cancer. The Applicant described his mother as stable at this point of time. The Applicant described having a good relationship with his mother and the Applicant described that his mother stood by him through his offending and his imprisonment.
The Applicant stated that he had two Australian citizen sisters and that he had a good relationship with his younger sister but was not as close with his older sister who resides in Sydney. The Applicant stated that he kept in touch with his sisters and hoped to re-establish a closer relationship with them if he is released into the community. The Applicant stated that his relationship with his sisters had been fractured by his offending and his period of imprisonment.
The Applicant stated that he had been married twice. The Applicant stated that he was in a relationship and later married to his first wife from approximately 1999 through to 2007. The Applicant advised that his daughter Ms ER was born in 2003.
The Applicant stated that after the cessation of his marriage to his first wife Ms CB, that he and Ms CB engaged in a custody battle over their daughter Ms ER because the Applicant wanted access to Ms ER half of the time. The Applicant described family law proceedings as protracted.
The Applicant stated that in 2008 he met his second wife Ms SP, with whom he entered into a de facto relationship, and then married in 2012. The Applicant stated that his daughter Ms ER was in primary school at the time and was diagnosed with an auditory processing disorder. The Applicant stated that he was living at the time in the Coromandel Valley and that his daughter expressed a desire to attend primary school in the Coromandel Valley. The Applicant stated that as a consequence Ms ER lived with him during the week whilst she completed year six and seven and returned to live with Ms CB on the weekend.
The Applicant advised that his second wife Ms SP had a daughter Ms XM from a previous relationship who was born in 2005 and that she had left her first husband because of domestic violence issues. The Applicant stated that Ms XM did not have a father figure with her own father and developed one with him. He described having a close relationship with Ms XM.
The Applicant stated that in 2017 there was a breakdown in his marital relationship with Ms SP. The Applicant stated that he employed a cleaning lady around that time who introduced Ms SP to methamphetamines. The Applicant stated that Ms SP does not use drugs now. The Applicant claims that Ms SP hid her methamphetamine use from him. The Applicant stated that he would have arguments with Ms SP and that Ms SP was unfaithful to him and that during Christmas 2016 he was left by Ms SP with responsibility for his daughter and stepdaughter for three weeks.
The Applicant stated that he commenced using methamphetamines after the breakdown of his marital relationship with Ms SP. The Applicant stated that as a consequence of Ms SP’s drug use, the family accumulated a significant amount of debt. The Applicant stated that the use of methamphetamines made him feel better. The Applicant stated that methamphetamines suppressed his depression which arose after the breakdown of his second marital relationship. The Applicant stated that he started methamphetamine use from around 2017. The Applicant stated that during this period he maintained his driver’s licence, he was working and that he had to be careful, and that at one point in 2021 he approached a general practitioner in a ‘cry for help’ stating that he was considering self-harm. The Applicant stated that he used methamphetamine between 2017 and his imprisonment in February 2022.
The Applicant stated that his methamphetamine use started at a time when his life had fallen off a cliff. The Applicant stated that his ego stood in the way of him being able to acknowledge his problem and that he did not seek proactive medical help with respect to his depression. The Applicant stated that he did not want to show weakness to anybody.
With respect to the Applicant’s child abuse offending, the Applicant stated that at the time of the offending he was working six days a week and working 12-hour days. The Applicant stated that the distance between his home and work involved a 2 ½ hour round trip.
The Applicant claims that he was functioning at work and leading a largely solitary existence at this time. The Applicant had some interaction with his daughter and stepdaughter during this period. The Applicant claimed that his methamphetamine use warped him from reality. The Applicant stated that he spent time engaging in online chat rooms and that people misrepresented themselves in these chat rooms and that people lived in what he described as a “fantasy world”. The Applicant referred to the report by Dr Lim which indicated that methamphetamine use was often equated with a psycho-sexual element and that the drug affected people in a psycho-sexual way. The Applicant stated that his ex-wife Ms SP was promiscuous when she used methamphetamines. The Applicant claimed that he was able to eat and sleep despite his use of methamphetamines.
The Tribunal noted that the Applicant’s statement indicated that his methamphetamine use devolved into engaging in online chat rooms. The Applicant claims that he felt that he was led down a pathway in those chat rooms. The Applicant stated that he was cognizant of the fact that police masqueraded in these chat rooms. The Tribunal asked the Applicant whether he believed his moral compass was broken at this time. The Applicant stated that he had raised his children and that he had never acted inappropriately. The Applicant stated that when the police raided his premises after his discovery in online chat rooms, his house was tested for DNA, his computers and laptops including his work laptop were seized by the police, and that there was no child-abuse material contained on any of those devices. The Applicant stated that he was merely engaging in conversations in a chat room.
The Applicant stated that when he was arrested with respect to the offending that he briefed a solicitor. The Applicant stated that it was his intention to plead not guilty to the offending behaviour for which he was charged. The Applicant stated that after a conversation with his representative he changed his plea at the last minute to a guilty plea on the basis that concessions with respect to sentence would be able to be tapped into if he pled guilty. The Applicant further stated that to ‘appear guilty’ he was told that he needed to ‘act guilty’.
The Applicant was cross-examined by Mr Chan for the Minister. Reference was made to the Applicant’s criminal history referable to page 42 of the Respondents hearing bundle.
Mr Chan asked the Applicant about his sentence for a breach of a District Court bail agreement on 6 October 2022 and the Applicant stated that he could not remember how he breached his bail condition. Mr Chan referred to an incident on 20 February 2022 at which time the Applicant was driving whilst disqualified and that he had breached his District Court bail conditions by being found in the company of a child and being engaged on social media platforms. The Applicant was warned about the risk of self-incrimination and chose not to answer questions with respect to this incident.
Mr Chan made reference to the Applicant’s index offending that led to his imprisonment. The Applicant stated that he was using social media apps and the internet, particularly an app called Kik. The Applicant described this chat room as a social chat application where you could discuss a range of issues from the mundane, such as how to fix a car, to chat rooms that are ‘left of centre’. The Applicant stated that it is widely known that this chat room was policed. The Applicant stated that the name that he used in the chat room was predominantly Tyler K, and a number of variations thereupon. The Applicant stated that he found the Kik app most likely by an online search and that he was not actively looking for child-abuse material and stumbled upon it. The Applicant was asked what he meant by online police operatives in the chat room. The Applicant stated that these people would start chatting to you for no apparent reason and then lead you in particular directions. The Applicant claims that he was aware that police had an online presence. The Applicant was asked why he would engage in sexually explicit conversations about minors in a chat room that had a police presence in it. The Applicant claimed that he was affected by methamphetamines at the time. The Applicant stated that he did not derive sexual gratification from these encounters.
Mr Chan noted that the Applicant gave evidence that he did not want to plead guilty to the child abuse offending and the Applicant confirmed that this was the case. The Applicant stated that his defence with respect to the offending was that people misrepresented themselves in the online chat rooms and he was just going along with it, and he described it as “fantasy” and “bullshit”.
Mr Chan asked the Applicant whether he regretted pleading guilty, and the Applicant stated “I regret pleading guilty I did under pressure I wanted to expedite the matter. I talked about it with my barrister, and he said that I would get discounts from the court if I pled guilty and would not be sentenced as a repeat offender”. The Applicant stated that he spoke to his daughters and to his mother after speaking with his barrister and was told to get back to his barrister as soon as possible. The Applicant stated that he rang his representative and signed documents and was told that he should act as though he was guilty. The Applicant stated that his barrister Ben Armstrong, withdrew his representation from him and that the Applicant had to find a legal aid lawyer to handle sentencing submissions on his behalf.
Mr Chan made reference to page 43 of the Respondent’s tender bundle. This indicated that on several dates between October 2019 in January 2020, the Applicant engaged in chats via the Kik and WhatsApp applications regarding sexual interest in underage children. Mr Chan noted that the sentencing comments referred to page 43 indicated that on 6 November 2019 the Applicant committed an offence by chatting and recording fantasies of observing a woman engaging in penetrative sexual acts with a 10-year-old. Further to this that the Applicant was communicating with a police officer purporting to be a 13-year-old girl with the intention of making a child amenable to sexual activity. The Applicant was invited to comment on this. The Applicant stated that he had been found guilty and pled guilty to this offence. The Applicant stated that he had spent more time in jail than anticipated and that he spent more time than his non-parole period in prison.
Mr Chan again made reference to page 43 of the tender bundle, namely the sentencing comments in the District Court which indicated that between 4 March and 19 March 2020 the Applicant requested photographs of the girl that he was communicating with and questioned her about her sexual experience, offered to engage in several sexual acts and offered to send the girl an image of vagina and said he would pick her up in order for her to try female masturbation. The Applicant stated that he did not ask for any photographs and that he wanted to ascertain whether the people and the girl in the chat room were real. Mr Chan asked the Applicant why he asked the girl to make out with him. The Applicant stated that the whole visa revocation was based on him pleading guilty to the offending. The Applicant stated that those conversations were engaged in and he had been sentenced with respect to this offending. The Applicant claimed that he received no sexual gratification from his contacts in the chat room and described his engagement with the chat rooms as being involved in a “fantasy world”.
Mr Chan noted that these incidents were not isolated accounts and there was evidence of the Applicant’s engagement in similar incidences between July 2018 and October 2019. The Applicant stated that he was unaware that he was speaking to the same person but confirmed again that he knew that police operatives had a presence in these apps. The Applicant described his behaviour as one based on ignorance and stupidity.
Mr Chan asked the Applicant whether he felt moral disgust about his offending and the Applicant stated that he thought it was people ‘masquerading’ in the chat rooms. The Applicant stated that he acknowledged that there were potentially real victims of his offending and that the conversations may have been with a real child.
Once again, the Applicant stated that he wanted to plead not guilty with respect to the offending and that the lawyer stated that if he wanted to expedite the proceedings that he should plead guilty. The Applicant stated again that he needed to appear to be guilty.
The Applicant stated that Dr Lim believed that he was not a paedophile. Further to this that he had a low risk of recidivism and that his engagement in such offending was heightened by his methamphetamine use. The Applicant was asked whether he used the Snapchat app and he advised not for this behaviour. Mr Chan asked the Applicant whether he was familiar with the ‘plenty of fish’ app, the Applicant stated that it was a dating app that adults used and that he had engaged under a number of pseudonyms with respect to this app such as Tyler and a number of iterations of this name.
Mr Chan noted that the Applicant was arrested around March 2020 and shortly after was released on bail. Mr Chan noted that one of the bail conditions applicable to the Applicant’s release in the community was not to use social media and asked whether there were any other conditions. The Applicant stated that he could not remember.
The Applicant was referred to page 46 of the Respondent’s tender bundle, which notes the Applicant’s failure to comply with a condition of his bail by using the Kik app on 7 April 2022. The Applicant conceded that he breached bail conditions. The Applicant was asked why he used the Kik app in breach of bail conditions and the Applicant stated that he went online, found someone online, and that he showed the person how easy it was to misrepresent themselves on the app.
Mr Chan noted that the Applicants bail conditions also included a requirement that he resided at a particular location and noted that the Applicant changed address without notifying police of the change of address. Further to this, the Applicant used methamphetamine whilst on bail. The Applicant confirmed these bail breaches and stated that he used methamphetamines at the time for his mental health. Mr Chan asked the Applicant whether there were any other bail breaches at the time and the Applicant stated being in the company of a minor. The Applicant stated that he did not wish to give evidence with respect to this episode and invoked the privilege against self-incrimination. The Applicant then added the charges with respect to this breach were thrown out. The Applicant stated that these allegations were unproven.
Mr Chan made reference to the Applicant being the subject of a violence restraining order in 2007 with his ex-wife Ms CB. Mr Chan asked the Applicant how the order came to be made. The Applicant stated that he and his wife Ms CB had separated and were making an attempt to put the relationship back together. The Applicant found that his ex-wife was with somebody else, and he got upset and was threatening towards his ex-wife and the police were called. The Applicant claimed that there was no violence but there was verbal abuse and threats. The Applicant also stated that he threw his ex-wife’s mobile phone in the spa. The Applicant claims that this was stupid, however, it came within the context of verbal and emotional abuse. The Applicant claimed that his ex-wife Ms CB was now a ‘big supporter of him’.
Mr Chan made reference to page 167 of the tender bundle an entry dated April 2007 from South Australian police indicating that Ms CB had been the recipient of 500 text messages from the Applicant including threatening text messages. The Applicant stated that his ex-wife at this time was probably using their daughter Ms ER as a weapon in their separation dispute. The Applicant stated that he could not recall threatening his ex-wife. Mr Chan asked the Applicant whether he was the subject of a violence order at this time around May 2007 and he advised that he could not remember. Reference was made by Mr Chan to a breach of the violence order with respect to the Applicant texting his ex-wife on 26 May 2010.
Mr Chan made reference to the Applicant’s traffic offences noting that he had driven whilst affected by alcohol, driven whilst disqualified and invited the Applicant to comment. The Applicant stated that his traffic offences were not that outstanding. Some of the offending happened around the time of his child abuse offending and he described his care factor at this time as being very low. With respect to driving over the alcohol limit the Applicant stated that he now does not drink, that he does not take drugs and that his consumption of alcohol and driving was both dumb and stupid.
Mr Chan asked the Applicant about his illicit drug use, namely methamphetamine use. The Applicant stated that he smoked 1 to 2 grams per week and that he used drugs on days that he was not around his daughters. The Applicant stated that most of his drug use occurred after work when he had nothing else planned and there were periods where he did not rely on drugs. The Applicant stated that he stopped using methamphetamine when he was taken to prison. The Applicant stated that prison was the best catalyst to get off methamphetamines and gave him his clarity of thought back that he had lost whilst using drugs.
Mr Chan asked the Applicant whether if released into the community he was on a sex offenders register. The Applicant stated that he was on a sex offenders register and that this factor should be considered highly with respect to risk mitigation.
At the resumption of hearing on 20 May 2025, the Applicant confirmed that he was on the sex offenders register, that it was a permanent order and noted that there are a range of conditions that included no contact with minors, work restrictions, computer and telephone details being provided along with social media details and that there was an internet monitoring component. The Applicant stated that all of his computer passwords had been provided. The Applicant noted that since he had been in immigration detention he had access to his own mobile device.
Reference was made to the sentencing comments in the South Australian Magistrates Court from Magistrate White dated 10 May 2023 at page 2, which suggested that the Applicant was using methamphetamines during his second marriage and not after the cessation of that marriage as he claimed in his evidence on day one of the hearing. The Applicant stated that “I dabbled slightly with speed during that marital relationship”.
The Applicant confirmed that he had not completed a sex-offenders program whilst in prison. The Applicant stated that he had no opportunity to do so. The Applicant stated that the course could be completed whilst in prison or in fact completed in the community. The Applicant stated that he had attended a number of SMART recovery programs whilst in immigration detention dealing with things such as coping techniques, why a person might engage in particular behaviours, dealing with addictive behaviours and coping with relapses. The Applicant stated that he was committed to total abstinence from both drugs and alcohol.
Discussion was had with the Applicant about the fact that he had abstained from drugs and alcohol whilst in prison and immigration detention and whether he would be challenged in this abstinence living in the community. (The Applicant advised that drugs and alcohol were available in prison and immigration detention and that he had not engaged in their use.) The Applicant stated that he had been randomly drug tested on a number of occasions in prison and detention with no adverse detections. The Applicant stated that he has very strong willpower and commitment to creating a better life for himself and the desire to be engaged with his family which outweighs any weaknesses.
The Applicant advised that with respect to strategies for maintaining himself in the community that he would like to continue to engage with a professional psychologist. The Applicant stated that the sex offenders register was a big deterrent from further offending. The Applicant stated that he wanted to get on with the rest of his life. The Applicant stated that he would like to maintain ongoing counselling and would like to engage in a sex- offenders course. The Applicant advised that in his sessions with a psychologist in detention that he had not been diagnosed with any particular mental health issues other than an ongoing struggle that he had experienced losing weight particularly during his period of imprisonment. The Applicant stated that he took no medication for mental health conditions and only took medication for blood pressure and arthritis.
The Respondent’s representative put a number of contentions to the Applicant with respect to a risk of reoffending in the future. Mr Chan noted that the Applicant’s index offending occurred over months even years with respect to child abuse offending. The Applicant refuted this and stated that this was not correct, and that his behaviour involved speaking to a police operative and that as a consequence he had lost four years of his life. With respect to his drug use history, the Applicant stated that he had used methamphetamines to self-medicate that he did not have a long history of drug use and that he believed that he would be able to abstain from drugs going forward.
With respect to the Applicant’s breach of bail conditions the Applicant stated that at the time of his offending and with respect to the breaches of bail conditions that his life was “off the rails” and contended that that part of his life is now over, and he needs to be allowed to reintegrate into the community.
Mr Chan put to the Applicant that he had exhibited in his evidence a lack of insight into his offending. This was evidenced by the Applicant’s oral evidence at hearing on 12 May 2025 when he advised that he regretted pleading guilty to the child abuse offending and described the offending as “just bullshit”. The Applicant stated that he understood the ramifications of his behaviour and the damage that his behaviour could cause. The Applicant stated that he would not wish to put anybody in that position.
Mr Chan made reference to the report of Dr Lim which stated that the Applicant appeared to get some sort of sexual gratification from engaging with children. The Applicant refuted this was the case and contended that Dr Lim formed the view that he was not a paedophile and that he had a low risk of reoffending going forward.
Discussion was had with respect to the Applicant’s elderly mother. The Applicant noted that his mother had peritoneal cancer, that she was currently in remission, that her health was fragile, that she was aware of the Applicant’s offending and was substantially impacted by that. The Applicant stated that he would do his best to provide his mother with support if he was living in the community.
The Applicant stated that he had a good relationship with his ex-wife Ms CB and that she provided support to him, and they were both focused on supporting their daughter Ms ER. The Applicant stated that he does not have a lot of contact with his second wife who suffers with type II diabetes. He noted that she had now abstained from drugs and was working in a law firm. The Applicant stated that with respect to his stepdaughter Ms XM that they did not talk to each other when he was in jail but have rebuilt their relationship since he had been in immigration detention. The Applicant stated that Ms XM had not been to visit him in detention and that they would text one another from time to time but did not speak over the telephone. The Applicant stated that with respect to his daughter Ms ER that their relationship is repairing well. He advised they did not speak during the time that he was in prison and that his daughter struggled with his incarceration. The Applicant stated that Ms ER has forgiven him and that they talked on the phone all the time and that if he was released into the community, he would re-establish a meaningful relationship with his daughter.
The Applicant advised that if he was released into the community, he believed that he had the skill set to obtain work going forward given his trade experience as a fabricator and machinist and his extensive experience in the car industry. The Applicant stated that he did not believe that this experience would translate well to the United Kingdom due to his age and his lack of familiarity with the car industry in the United Kingdom.
The Applicant stated that he did not own real estate since having sold his property in 2022 when he defaulted on his mortgage repayments. The Applicant stated that after the mortgage was extinguished, he paid a sum to his ex-wife Ms SP, retained some money to live on, and paid the balance on legal fees. The Applicant stated that if he was released into the community that he may well initially have to rely on Centrelink until he obtained employment. The Applicant expressed a desire to return to work. The Applicant hoped to be able to relocate into the community to be close by his children.
It was put to the Applicant that given that his family had not been able to influence his engagement in drug use and criminal offending in the past that it was unlikely that they would be able to stop it in the future. The Applicant stated that his offending had been a burden for everybody. The Applicant stated that if he is released into the community, he would commence a new life and wishes to rebuild his relationships.
Discussion was had with the Applicant about him not meeting parole requirements because of his failure to engage in a sex-offenders course in prison. The Applicant stated that a course was only available to him towards the end of his minimum term of imprisonment of 15 months and that the course was of 9-12 months duration. The Applicant stated that he believed that his good conduct record in prison along with a report from a psychologist would work in his favour with respect to parole. The Applicant stated that this was a misjudgement as the parole board would not consider his parole unless he had completed a sex-offenders course. The Applicant stated that as a consequence he served the full term of his period of imprisonment.
Witness statements
The Applicants former wife Ms CB, his biological daughter Ms ER, his step-daughter Ms XM and his mother Mrs S all provided statements to the Tribunal. The Applicant also provided a report from Ms Loretta Sassi a clinical psychologist dated 14 April 2023 which has been referenced in this decision. The statements of the deponents have all been duly considered by the Tribunal. The Tribunal also had regard to the report from Dr Lorraine Lim dated 9 September 2022.
CROSS-EXAMINATION OF WITNESSES
Indeed, Dr Lim at 3.7 of her September 2022 report (see Respondent’s tender bundle at page 88) noted that after the Applicant’s arrest in March 2020, he described his mental health as “really bad”. Because of this he consulted a general practitioner Dr Azis, from the Blackwood Family Medical Centre for support for suicidality.
The evidence indicates that after engaging with Dr Azis the Applicant was referred to a psychologist, Mr Franklin McCurdy, for management of his mental health issues. The Applicant engaged with Mr McCurdy for 4 to 5 sessions and described those consultations to be helpful. The sessions were described as involving supportive counselling with Mr McCurdy providing the Applicant with strategies to cope with the stress and anxiety associated with his legal predicament. The Applicant was not prescribed any medication for his mental health by his GP at the time.
The evidence indicates that despite these 4-5 psychological interventions undertaken by Mr McCurdy, they did not circumvent the Applicant from going on to breach his strict bail conditions and hence engage in further criminality.
The evidence indicates that after the Applicant was arrested with respect to his index offending, he was granted bail in the Magistrates Court of South Australia on 23 March 2020. Condition 5 of that bail agreement was that he would not access social media websites, including Kik. Yet the police affidavit of Detective Brevet, Sergeant of the South Australian Police Force dated 7 April 2020 (Respondents tender bundle page 230) shows that the Applicant continued to engage in social media use on Locanto on 6 April 2020 in contravention of these bail undertakings. As discussed, the Applicant went on to commit further bail breaches in February 2022.
Dr Lim concluded in her September 2022 report that was predicated on a range of factors that the Applicant’s current risk of online-based sexual recidivism was in the low ranges. This included his abstinence from methamphetamines. The Tribunal once again highlights that the Applicant’s abstinence from illicit drug use after a long period of addiction is yet to be tested in the community.
The evidence indicates that the Applicant’s offending is deep seated. Despite the seriousness of his index offending behaviour and despite being given an opportunity to reside in the community with Local Court bail and later District Court bail with strict conditions, the Applicant went on to commit serious breaches of his bail conditions that grounded convictions. The breaches went to the heart of his index offending in that he persisted in engaging in social media sites and he was found in February 2022 to be in the presence of a child without the supervision of another adult.
This evidence in the view of the Tribunal is a strong indicator of risk going forward, and it shows repeated contempt by the Applicant for the legal process. The Tribunal finds with respect to the serious nature of the Applicant’s index offending history that any risk of re-offending, even a low risk, is too great a risk to allow the Applicant to remain living in the Australian community.
The Tribunal accordingly finds that there are a number of significant risk factors in play with respect to the Applicant re-offending in the community. They are as follows:
The very serious nature of the Applicant’s offending behaviour which involved abuse of a sexual nature directed at children over an extended period of time.
The Applicant has not to date engaged in a sex offender’s programme despite his stated desire to do so. The absence of his completion in such a course means that the Applicant remains an untreated child sex offender.
The Applicant had a longstanding methamphetamine addiction. The Applicant continued to use methamphetamines in the community whilst on bail as demonstrated by the police facts with respect to his breach of bail conditions in February 2022. This is despite being the subject of serious criminal charges which shows the depth of his methamphetamine addiction at that time. It is difficult to form a view from the written and oral evidence of Ms Sassi that the Applicant’s addiction to methamphetamines has been sufficiently addressed by his post incarceration abstinence, or his engagement in nine, 45-minute cognitive behaviour sessions with her in immigration detention. The fact is the Applicant’s long-term addiction has not been tested in the community nor has the Applicant been the subject of a drug rehabilitation program to prevent relapse going forward.
The Tribunal, as discussed notes, the bail undertakings that the Applicant made to both the Magistrates Court in South Australia and to the District Court of South Australia, which he had no compunction to breach.
The Applicant breached Local Court bail conditions in April 2020, a month after he was arrested for his index offending, when he accessed social media websites whilst he was precluded from doing so. The breach was only picked up because this use was intercepted by a police covert operative.
The material with respect to the incident that grounded the Applicant’s breach of his District Court bail conditions on 20 February 2022 make it clear, that despite his protestations, his offending did involve real minors and did not occur as he claimed in the realm of online fantasy. The evidence indicates that the Applicant was found to be in the presence of a child without the supervision of an adult in contravention of his bail conditions.
There is a historical context to the Applicants persistent breach of bail conditions referable to his motor vehicle offending history. This is evidenced by the Applicant being convicted of driving a motor vehicle whilst disqualified from driving.
The drive whilst disqualified and the various bail breaches over time, particularly those breaches that occurred after the Applicant’s index offending, show a complete disregard for the rule of law.
The Tribunal further finds that the low risk of re-offending by Dr Lim in her report of 9 September 2022 was made without her having any reference to the Applicant’s bail breaches of 20 February 2022, and without regard to the police affidavit of 22 February 2022, pertaining to the circumstances surrounding the breaches. The breaches included contact with a child. Dr Lim stated that she was precluded from administering “a formal risk assessment tool on HWQY on this occasion because as at the time of this report writing, there are no empirically validated actuarial instruments for non-contact sexual offences available”. Hence her findings were based on an assessment of the Applicant’s criminogenic factors. The weight given to this report is tempered by the fact that no such testing was administered despite there being evidence of child contact that grounded a breach of bail conditions.
The Tribunal places limited weight on the report of Ms Sassi dated 14 April 2025, who opined a low risk of the Applicant re-offending, for the following reasons. The report was based on the self-reporting of the Applicant. The Applicant’s contact with Ms Sassi in detention was referable to psychological issues with respect to excessive overeating, obesity, and addictions. It was not referable to the Applicant’s index child abuse offending and no independent information with respect to that offending was provided to her. Ms Sassi described in her evidence at hearing that the offending related to online fantasy chats. Ms Sassi conceded that she was not aware of the Applicant’s bail breaches including contact with a child, and had she been aware this was a relevant consideration with respect to the risk of re-offending. There was no evidence of Ms Sassi administering any diagnostic testing to determine the risk of the Applicant engaging in future child abuse offending. Overall, the Tribunal finds the report is unreliable in addressing the risk of sexual recidivism.
For the above reasons 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.
With respect to family violence, the submission from the Respondent notes that the Applicant had not been convicted of family violence however, there was evidence of a violence restraining order in or around May 2007 with the Applicant’s ex-wife Ms CB. It was noted that the Applicant attended the victim’s home causing property damage and had sent over 500 nuisance and threatening text messages to Ms CB. The submission makes reference to a further incident in around February 2008, in which Ms CB felt intimidated and threatened by messages sent by the Applicant, with respect to the Applicant removing photos of their daughter on a site linked to porn, bondage and drug use.
Mr Chan has argued that this tranche of offending comes clearly within the ambit of family violence as envisaged by the Direction. Mr Chan argues that this consideration weighs in favour of non-revocation.
There is no evidence before the Tribunal that the Applicant has committed acts of family violence against any other person.
There is evidence that the Applicant’s behaviour during the aftermath of his first marital breakdown was not behaviour that fits within societal norms and expectations and did traverse into the realm of family violence. The victim of this behaviour Ms CB described in her evidence at hearing the behaviour as coming within the ambit of domestic violence, she described the period as a not a pleasant time in her life. She confirmed the Applicant sending her multiple text messages which were not pleasant and were threatening. She also recalled an incident of the Applicant throwing her mobile phone into a spa. Ms CB stated that at the time she was concerned for her welfare and for that of her daughter Ms ER. Ms CB stated that she and the Applicant had worked on repairing their relationship for the sake of Ms CB and that their relationship, many years after the domestic violence issues, is now cordial.
The Tribunal finds that the Applicant has engaged in family violence which was directed at his ex-wife Ms CB and occurred during the period that their marriage had failed, and they were engaged in a bitter custody dispute. The surrounding facts do not exonerate the behaviour. The Tribunal notes this incident grounded a restraining order. The Tribunal notes that the Applicant and Ms CB were divorced in 2005 and that this is a historic incident.
The Tribunal finds that despite the incident being an isolated one it did cause fear in the victim at the time and resulted in the imposition of a restraining order. The Tribunal finds given that fact and bearing in mind the passage of time since the family violence, that some weight should be given to this consideration with respect to the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary consideration 2 is given some weight against revocation.
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 migrated to Australia from the United Kingdom in 1971 when he was three years old.
The evidence before the Tribunal indicates that the Applicant is now 57 and has spent 54 years resident in Australia.
The evidence indicates that the Applicant’s mother Mrs S is an Australian citizen with whom the Applicant is close. The evidence indicates that Mrs S is in remission from stage IV peritoneal cancer, she is 79 years old and lives on her own in a retirement village. The evidence indicates that the Applicant prior to his imprisonment and detention assisted his mother with gardening, cleaning her motor vehicle had also assisted her with shopping from time to time. Mrs S gave evidence that because of her fragile health that in the event that the Applicant was to be deported to the United Kingdom, that she would not be medically fit to visit him in that country.
The evidence indicates that the Applicant has two Australian citizens sisters, resident in South Australia. The evidence indicates that since the Applicants offending, he has been estranged from his sisters. The Applicant expressed in his evidence to the Tribunal that in if he is able to return to live in the Australian community that he hoped that he would be able to repair those relationships going forward.
The evidence before the Tribunal indicates that the Applicant has a biological daughter Ms ER who is an Australian citizen and with whom he has maintained a close relationship. The evidence indicates that Ms ER resides with her mother and stepfather. The evidence indicates that Ms ER has a boyfriend who resides with his parents and the evidence of Ms CB was that Ms ER and her boyfriend intend to engage in travel together. Ms CB advised that Ms ER had recently found employment. Ms CB provided evidence that Ms ER wants to re-build her relationship with her father and that it had been difficult to do so whilst he was incarcerated. Ms CB further advised that Ms ER was upset by her father’s offending but believed he had paid his dues. Ms ER provided evidence that her relationship with her father had been fractured by his offending and that she was working on repairing it. Ms ER gave evidence that in the event that her father was returned to the United Kingdom that she would communicate though e-mails and video calls.
The Applicant has submitted that his daughter Ms ER had suffered with fragile mental health in the past but no independent medical evidence corroborative of this assertion has been provided to the Tribunal. The evidence of Ms CB is that her daughter resides with her and her husband, she is now employed, she is in a relationship and intends to travel with her boyfriend and that she is working on repairing her relationship with her father.
The Applicant’s stepdaughter Ms XM described having a close relationship with her stepfather, who had raised her from when she was an infant.
The Applicant’s evidence to the Tribunal was that prior to his offending he had a solid work history. The Applicant had completed an apprenticeship as a young man as a fitter and machinist. The Applicant had then moved towards employment in the car industry and sales and that over many decades worked his way up to being the principal of a number of dealerships. It is evident that the Applicants offending had an adverse impact on that employment due to the nature of his offending conduct.
The evidence indicates that the Applicant has a number of friends in Australia that he has formulated friendships with over the course of his life.
The evidence before the Tribunal when cumulatively considered indicates that having regard to the strength, nature of and duration of ties to Australia that this primary consideration is given significant weight by the Tribunal with respect to the revocation of the cancellation of the Applicant’s visa.
Having regard to the evidence before it with respect to this consideration, the Tribunal finds that significant weight should be apportioned to this consideration in favour of revocation given the Applicant’s strong ties to Australia.
Conclusion: Primary Consideration 3
The Tribunal finds that significant 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 relevant.
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 serious 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 very serious conduct, namely very 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 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.
Unlawful non-citizens in accordance with s 198 of the Act are liable to be removed from Australia as soon as reasonably practicable. In the meantime, they are subject to detention under s 189 of the Act. Other legal consequences of the decision include a prohibition on applying for other visas (except for a Protection visa or Bridging R visa) under s 501E and a permanent exclusion from Australia for visas subject to Special Return Criteria 5001(c).
The Tribunal acknowledges that, if the Applicant’s visa was cancelled, he would remain in immigration detention until such time as the Australian immigration authorities removed him to the United Kingdom.
The Applicant has raised the fact that “the cumulative impact of his imprisonment and detention has been grossly disproportionate and fundamentally unfair”. The Tribunal finds that Applicant’s immigration detention has occurred as a legal consequence of the decision not to revoke the cancellation of his Subclass 155 Resident Return visa.
The Respondent suggested that the Applicant’s ongoing immigration detention would not be for an extended period of time. As discussed, 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 history this would be an unlikely scenario.
(b) Extent of impediments if removed
The Applicant is 57 years old. The Applicant has a number of age-related health conditions that are medically managed including hypertension and arthritis. The evidence before the Tribunal indicates that the Applicant has extensive experience as a fitter and machinist and even more extensive experience in the automotive industry in sales and in the oversight and operation of car dealerships. As a British citizen the Applicant would be able to avail himself of the British medical system which is comparable to that which is available to the Applicant in Australia. In terms of the Social Security system there are similarities between the Social Security supports available in Australia and the United Kingdom and the Applicant would be able to avail himself of the United Kingdom Social Security system until such time as he was able to find employment and establish a life for himself in the United Kingdom.
(c) Impact on Australian business interests
There is no evidence that Australian business interests would be compromised were the Applicant removed to the United Kingdom. Accordingly, the Tribunal this consideration is not 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 given some weight against the revocation of the Applicant’s visa.
(c)With respect to Primary Consideration 3, the Tribunal finds that significant weight should be apportioned to this consideration in favour of revocation.
(d)Primary Consideration 4 is not relevant in this case as the Applicant does not have minor children in Australia.
(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.
The Tribunal as part of its overall evaluative exercise has determined that there is not another reason to revoke 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.
DECISION
The Tribunal affirms the Reviewable Decision not to revoke the cancellation of the Applicant’s Subclass 155 resident Return visa.
Date of Decision: 4 June 2025
Dates of Hearing: 12, 20 and 21 May 2025 Representation for the Applicant: Self-represented Representation for the Respondent: Mr A Chan, Special Counsel Sparke Helmore Solicitors
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