Marsh and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 386

Marsh and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 386 (17 April 2025)
Applicants:MARSH, Jeremy
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/0931

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date of Decision: 17 April 2025

Decision: The decision under review is affirmed.
Date of Statement of Reasons: 17 April 2025

Statement made on 17 April 2025 at 11:01am
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – decision under review is affirmed.
Legislation
Migration Act 1958 (Cth) ss 5AB, 15, 189, 196, 197C, 197C(1), 198, 499(1), 499(2A), 501(1), 501(2), 501(3A), 501(6), 501(7). 501(7)(c), 501CA, 501CA(4), 501E, 501F, 503, 5001, 5001(c).
Criminal Code (Western Australia) s 204B
Cases
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.1(4), 5.2, 5.1(8), 6, 7, 8, 8.1(1), 8.1(2), 8.1(2), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.3, 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.1.2, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3.
Statement of Reasons
Summary
Mr Marsh’s visa was cancelled as a consequence of his conviction for a single count of using electronic communication to expose a child under 16 years to an indecent matter. I have decided not to revoke that cancellation decision after considering the matters provided for in Ministerial Direction 110. In particular, and in summary only, although I have placed weight on the impact of the decision on Mr Marsh’s immediate family in Australia, I consider the offence to be very serious and the Australian community would expect the visa to remain cancelled.
Background

Mr Marsh is a 57-year-old citizen of the United Kingdom.[1] He first arrived in Australia on 7 September 2022 as a visitor, and then moved to Australia from 4 April 2003 with his wife,[2] Mrs “KM” (an Australian citizen) and son. From 14 July 2016, and at the time of his offence, he held a Class BB Subclass 155 Resident Return visa.
[1] Hearing Book (‘HB’) 113.
[2] HB, 52, 55, 56 – noting Mr Marsh declared he was visiting Australia and resided in the United Kingdom in his incoming passenger card of 4 April 2003, but did not depart again until 10 February 2007.
At some time shortly prior to 15 August 2024, Mr Marsh was found guilty by a jury of one count of using electronic communication to expose a child he believed to be under the age of 16 to indecent matter, and a conviction was entered. On 15 August 2024 Mr Marsh was sentenced to 12 months in prison by the District Court of Western Australia.[3]
[3] HB, 57.
On 30 August 2024, Mr Marsh’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (‘the Act’) on account of his substantial criminal record.[4] At that time Mr Marsh was serving his sentence on a full-time basis in a custodial institution for an offence against the law of Western Australia.
[4] HB, 84.
On 8 September 2024, Mr Marsh made representations to have that decision revoked under section 501CA of the Act.[5]
[5] HB, 94.
On 6 February 2025, a delegate decided not to revoke the decision to cancel Mr Marsh’s visa.[6]
[6] HB, 21.
On 12 February 2025, Mr Marsh applied to the Tribunal for review of that decision.[7]
[7] HB, 5.
LEGISLATIVE FRAMEWORK
Under subsection 501(3A) of the Migration Act 1958 (‘the Act’), the Minister must cancel a visa that has been granted to a person if, among other things:
(a)the person does not pass the character test because of a substantial criminal record; and
(b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
A person has a substantial criminal record in the circumstances set out in subsection 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (paragraph 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (section 5AB of the Act).
If a visa is cancelled under subsection 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[8] If the person makes representations in accordance with the invitation, then under subsection 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[8] The Act s 501CA(3).
Ministerial Direction 110
Under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (subsection 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Tribunal in making a decision under section 501 or section 501CA of the Act, and the Tribunal must comply with the Direction.
An objective of the Direction is to guide decision-makers in exercising powers under sections 501 or 501CA of the Migration Act.[9] In exercising the power under subsection 501CA(4), the Tribunal must have regard to the primary and other considerations set out in the Direction where relevant to the decision.[10]
[9] Direction No 110 para 5.1(4).
[10] Direction No 110 para 6.
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[11]
[11] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[12]
[12] Ibid cl 7.
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
ISSUES
The issues before the Tribunal are therefore:
(a)whether the Applicant passes the character test, as defined by subsection 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the decision to cancel the visa should be revoked.[13]
[13] See subsection 501CA(4) of the Act.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in subsection 501(6) of the Migration Act. Paragraph 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by subsection 501(7). Relevant to Mr Marsh’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.
Mr Marsh was sentenced to a term of imprisonment of 12 months. I find he has a substantial criminal record and he does not pass the character test. Mr Marsh, who was represented by counsel in the proceedings, concedes he does not pass the character test.[14]
[14] HB, 201.
IS THERE ANOTHER REASON WHY THE DECISION TO CANCEL THE VISA SHOULD BE REVOKED?
Clause 8 of the Direction contains five primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Clause 9 of the Direction contains other considerations, which are:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
I have considered each one in turn, keeping in mind the principles in clause 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[15]
[15] The Direction cl 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[16]
[16] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[17]
[17] Ibid cl 8.1(2).
Nature and seriousness of the conduct
Prior to Mr Marsh’s offending resulting in his imprisonment, Mr Marsh has minor offences on his criminal antecedent report from the United Kingdom, including offences committed when he was under the age of 18 years. All were dealt with by way of fine.[18] Mr Marsh also had a traffic offence in Australia, dealt with by way of fine, which is marked as a spent conviction on his Australian criminal antecedent report.[19] These matters pertaining to Mr Marsh’s criminal and other conduct are of no significance in the overall evaluative task with which I am engaged and attract no adverse weight of themselves.
[18] HB, 47.
[19] HB, 45.
I must consider the nature and seriousness of Mr Marsh’s criminal offending or other conduct to date.[20] In doing so, paragraph 8.1.1(1) of Direction No 110 provides that, without limiting the range of conduct that may be considered to be either very serious or serious, certain types of crime and conduct are viewed very seriously or seriously by the Australian Government and the Australian Community. Among the crimes or conduct viewed very seriously by the Australian Government or Australian Community are crimes of a sexual nature against children regardless of the sentence imposed.
[20] Direction No 110 para 8.1(1).
I reproduce extracts from the sentencing remarks of Judge Zempilas of the District Court of Western Australia setting out the circumstances of the offence:
“On 14 November 2022, using the username Mondayblues, you engaged with another person on a text chat room called Chatiw. The person you engaged with was a WA police online operative, CO1094, who had assumed the identity of a 14-year-old female child. During the chat, the covert operative said that she didn’t go to school that day because she didn’t feel well and she was sitting in the sun. You asked for a picture or a “pic” and then asked if she had Kik, another platform. The covert operative responded yes and provided a Kik username. The covert operative said she was 14 years old and asked:
Hope you don’t mind.
And you said, “No worries”. Later the same day using the username of jezmarsh on the platform Kik, you engaged in a conversation with that same covert operative. She confirmed you were the same person as mondayblues from the earlier Chatiw conversation. You engaged in general conversation with the covert operative and discussed where you both lived. You said that you lived in Busselton and you asked for a photo of her. The covert operative said that she had just put a photo as her profile picture. You said, “Looking hot”. The covert operative said:
Hope you don’t mind that I’m only 14.
You said, “No worries”. The covert operative asked for a picture and you sent a selfie of your face. You asked the covert operative to send a live photo of herself using Kik and she replied that she was at school and that conversation then ended. On the following day, 15 November 2022, the covert operative sent a message on the Kik platform to you saying, “Hello again” and you did respond. On 16 November 2022 at 10.32 pm, you sent a message to the covert operative saying, “Hi”. On the following day, 17 November 2022, you sent another message to the covert operative at 6.48 again saying, “Hi”. A conversation commenced between you in which you said you were having a beer and the covert operative said she was too young for beer. You asked if you could resume the chat at 8.30 pm when you got home from a bar. When the conversation resumed you asked the covert operative to send a photo and she replied:
Do you care that I’m only 14, though?
You said:
Look, it’s chatting, that’s it.
The covert operative told you she was watching TV and you asked again for a picture. The covert operative then sent a picture. You said:
Wow, is that really you?
And:
Well, you look gorgeous.
And:
Can’t believe you’re 14.
You then said:
Show me a better pic.
And the covert operative sent a further picture. You commented again about her appearance and said:
You look older than 14.
And the covert operative said:
I only turned 14 at the end of September.
You and the covert operative discussed where you lived during which she said she goes to [B] for holidays, you asked:
When are you down here again?
You asked why she wanted to chat with an older guy and she said that her friend told her it could be funny. You said:
It can be naughty.
You asked if she had a boyfriend and the covert operative said no. You asked her to take a live photo using the camera on the Kik application and you then asked her to send a PJ photo. When the covert operative said she was not yet in her PJs, you said, “That’s even better” with a love heart eyes emoji. You sent another photo of yourself and then said:
You in bed yet? I am.
The covert operative said she was going to sleep, and you said:
Oh, I was enjoying our chat, and I can send naughty photos.
You said it was up to her, but she had to send pics, too, and then you said:
Not naughty ones.
You then sent a shirtless photo of yourself taken by another person, a view from behind, in which you were sunburned, which showed part of your exposed buttocks. You said:
Your turn.
You said:
Want another?
And the covert operative said:
I dunno. Haha.
And you said:
Yes or no?
And:
Don’t go to sleep.
You then sent a photograph to the covert operative of your erect penis, to which the covert operative replied:
OMG.
You said:
You send me one in your PJ.
And then you sent to the covert operative a 10-second video of yourself masturbating your erect penis. The covert operative did not respond.
On 24 November 2022, police attended your home in [G] at 10.50 am. After speaking with your son, and then wife, who advised you were on a phone call, you were spoken to and arrested. Your mobile phone was seized and subsequently downloaded. The download revealed you had deleted the Kik application on that same day of your arrest. The same photographs that you had sent to the covert operative were stored on your mobile phone. In the background of the photograph and the video depicting your penis was a doona with a distinct pattern on it, and this doona cover was also found at the house.
You later participated in an electronic record of interview at [B] Police Station in which you made a number of admissions. You said that you were chatting to a person called Tessa, who said she was 14 years old. You said that you sent pictures and a video to her. You said that you had not taken the videos or photographs that night, but they were ones saved on your phone. You said that you deleted the Kik application that day, and said you had probably had Kik for a month.
You said that Tessa had said she was at school and that she was 14 years of age two or three times. You said that she had not asked you to send pictures or videos of your penis, but you had sent them, because you thought this might be what she wanted to see. When you were asked why a 14 year old would want to see a 55 year old man’s penis, you responded that you did not think much about it at the time. You said that you had been drinking, but that you were not drunk, and said that you had been bored, because your wife and children were out and there was nothing on TV. You said you deeply regretted it.”[21]
[21] HB, 58-64.

As to the aggravating features of Mr Marsh’s conduct, the sentencing court observed:
“Now, in respect of the aggravating features of this offending – and these are the features which I consider would increase your culpability or criminal responsibility – they are the following. Firstly, the covert operative identified themselves on a number of occasions as being 14 years of age. There were numerous opportunities by you to withdraw from that conversation in light of that, but instead, you requested that it be moved to another platform after you had been told she was just 14 years of age.
There was obviously a significant disparity between your age at the time and the age of this child persona with whom you were communicating. The next factor is that the pattern of communication between you and the child persona demonstrates your persistent efforts to introduce an element of sexualisation into the communication. For example, you commented on her appearance as being hot during one of the earlier conversations. You then suggested the chat would be naughty. You asked if she had a boyfriend. You asked why she wanted to engage in conversation with an older man.
You asked for a photo in her PJs, and then said, “That’s even better,” when she said she was not in them yet. You then suggested that you could send naughty photos, which you then progressed to do, culminating in this offending. You were clearly the instigator of the sexualised direction that this communication took. These conversations occurred over a period of days over two different platforms, and demonstrate an attempt by you to groom or manipulate this child persona into sexualising these conversations or communications with you.
You provided a photograph of your erect penis and then a 10-second video of you masturbating your erect penis. These were photographs and videos that you already had on your phone and they were clearly explicit in nature. The. only inference open and available to me to draw is that you did this for your own sexual gratification. I note there was only one persona involved in this offending and I note you did not try and make physical contact with her. You did, however ask:
Do you come down here?
And then:
When are you down here again?”[22]
[22] HB, 70-72.
As to seriousness, it was submitted on behalf of Mr Marsh that while the Direction indicates that crimes of a sexual nature against children are viewed very seriously, regardless of the sentence imposed, the applicant did not try to make physical contact with a real child, and hence there was no victim and no crime of a sexual nature against a real child ever occurred. It was submitted that paragraph 8.1.1(1)(a)(ii) of the Direction did not apply to the specific circumstances of the case, the offence was less serious if no victim was directly impacted and the circumstances surrounding the offence, said to amount to entrapment, significantly mitigated its seriousness.
It was submitted on behalf of Mr Marsh that there was no evidence that he was seeking a child sex opportunity, that he was vulnerable at the time having difficulty with a workers compensation situation with low mood and feeling isolated from family and disconnected from his wife. It was said that he had been diagnosed with mental health issues. It was said that entrapment may have facilitated or induced the commission of offence because Mr Marsh was vulnerable to impulsive and irrational decisions, and it was unclear how much the covert police operative knew about Mr Marsh’s personal circumstances.
The submissions regarding entrapment were challenged by the Respondent in the Statement of Facts and Contentions, and those submissions and the suggestion that I might view the offence as something other than a crime of a sexual nature against a child were challenged by me in the course of oral submissions at the conclusion of the hearing. I requested further explanation about how, in theory, such submissions could be accepted without going behind Mr Marsh’s conviction for the index offence contrary to the authority expressed in HZCP v Minister for Immigration and Border Protection.[23] with the following distillation of principle in mind (per Bromberg J)[24]:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
[23] [2018] FCA 1803 upheld by a majority on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
[24] At [78]
On behalf of Mr Marsh, it was submitted that I was not being asked to impugn the conviction, but instead the submissions were put so that the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
It is useful to reproduce extracts of the text of section 204B of the Criminal Code of Western Australia, being the provision creating the offence with which Mr Marsh was convicted.
204B Using electronic communication to procure, or expose to indecent matter, child under 16
(1)…
(2)An adult who uses electronic communication —
(a)…
(b)with intent to —
(i) …
(ii)expose a person the offender believes is under the age of 16 years to any indecent matter,
either in Western Australia or elsewhere,
is guilty of a crime and is liable to imprisonment for 5 years.
…
(8)For the purposes of subsection (2) or (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.
…
As can be seen, the key elements of the offence relevantly require that an adult use the electronic communication with intent to expose a person the offender believes is under the age of 16 years to any indecent matter, and the statute establishing the offence expressly and specifically provides that it does not matter that the victim is a fictitious person represented to the accused person as a real person.
It is clear from the sentencing remarks that Mr Marsh attempted to argue that he did not believe the person with whom he was corresponding was under the age of 16, but it was rejected by the jury in finding him guilty:
“This was in contrast with your evidence at trial, in which you maintained that you knew she was not, or did not believe she was 14 years old. You said, in evidence, that you had been introduced to Chatiw and Kik, on a work site about five years earlier, but had not really used it until November 2022, when you got into a rut due to a workplace injury. You said, in evidence, that you had had Kik for five years or more. You said that you thought she looked 18, or 17 at a push, and that she seemed to be trying too hard. It seemed to be a bit of an act. The jury, in convicting you, clearly rejected this version, and I also reject this version of events.”[25]
[25] HB, 64.
I reject Mr Marsh’s contentions that I may view his offending as being other than a crime of a sexual nature against children, or that the circumstances in which the crime was committed and detected amount to entrapment, or quasi-entrapment, that in any way reduces the inherent seriousness of the offending.
In circumstances where the statute creating the offence expressly establishes that it does not matter for the purpose of the offence that the victim is a fictitious person represented to the accused person as a real person, I consider that I would be in error to accept a submission that the fact that Mr Marsh sent the image and video to a police officer and not a real child reduces the seriousness of the offence or re-characterises the offence as something other than an offence of a sexual nature against a child. I view that aspect of the offence as amounting to an essential fact on which the conviction was based that I may not impugn, in that it is a key component in establishing the offence that it does not matter that the victim was a fictitious person. The instruction of the Federal Court and Full Federal Court in HZCP binds me in this regard.
Furthermore, even if it was open for me to take into account the fact that the recipient of Mr Marsh’s indecent electronic transmissions was a police officer and not a real child as a circumstance of the offence potentially going to the seriousness, I would not in fact view that feature of the circumstances as a matter as a feature that reduces the seriousness of the offending. While it is true that there was not in fact a child victim of Mr Marsh’s conduct it is perfectly clear why Parliament has established offences of this nature in terms that expressly permit such offences to be policed through the method used in relation to Mr Marsh, given the nature of the potential harm to children who are the victims of sexual offending of this kind, and the anonymity introduced by electronic communications. It is clear that Parliament has identified a clear need to deter persons from using electronic communications to transmit indecent matters to children, and authorised from the outset in establishing the offence the form of policing that detected Mr Marsh’s conduct. This, in my view, simply reflects the gravity of the conduct and potential harm the offence seeks to guard against. I do not view the fact that the transmission of indecent matter by Mr Marsh was received by a police officer rather than a real child is relevantly exculpatory, mitigatory or reduces the seriousness or nature of the conduct as a sexual offence against a child.
I note the evidence in the material before me suggesting Mr Marsh had an inclination towards impulsive behaviour and had symptoms of depression and anxiety at the time of the offending. I have considered whether an inclination towards impulsiveness, or committing an offence of this nature in the context of depression and anxiety reduces the culpability of Mr Marsh and the seriousness of the conduct. While I accept the conduct is not repetitive or calculated to any degree, I nonetheless consider the conduct remains very serious even though it was committed by a perpetrator with an inclination towards impulsivity. I consider that Mr Marsh’s depression and anxiety at the time is a context and not an explanation for the offending. I am not satisfied that these features reduce the inherent seriousness of the conduct.
I view Mr Marsh’s offending as very serious.
Turning to the other relevant matters in considering the nature and seriousness of Mr Marsh’s offending, clause 8.1.1(c) provides for an exception for crimes of a sexual nature against children in taking into account the sentence imposed by the court, and I am therefore directed not to do so. In any event, I note that the court remarked that the seriousness of the offending was such that the only appropriate disposition was a sentence of imprisonment, being positively satisfied that the offence was too serious for the sentence to be suspended in any capacity.[26] I further note the court observed:
“The maximum penalty for the offence reflects both Parliament and the community’s views to t (indistinct) he gravity of this offence. The maximum penalty for this offence is one of five years imprisonment. Now, in addition to the oral sentencing submissions that have been made today, I have been provided with and considered other materials. That includes materials provided by your lawyer, Mr Laurino, in the form of references and medical information. I’ve also received a pre-sentence and psychological report. Now, as you pleaded not guilty and proceeded to trial, it is necessary for me to make findings of fact, being the basis upon which I sentence you and I make those findings of fact only when they’re adverse to you if I’m satisfied with those facts beyond a reasonable doubt.”[27]
[26] HB, 77.
[27] HB, 58.
The nature of the offending did not involve the offending impacting on a specific victim. While that does not re-characterise the offending or reduce its seriousness, it is the case that there has been no impact on the offending on an identifiable victim to be taken into account for the purposes of cl. 8.1.1.(d) of the Direction.
This is the only significant matter on Mr Marsh’s criminal antecedent reports, there is therefore no trend of increasing seriousness, and nor is the seriousness of the offending increased through the cumulative effect of repeat offending. I take that into account.
I am to take into account whether there is evidence that Mr Marsh has provided false or misleading information the Department, including by not disclosing prior criminal offending. Mr Marsh failed to disclose the minor criminal matters appearing on his United Kingdom criminal antecedent report by answering in the negative the question on his incoming passenger declarations ‘do you have any criminal convictions’.[28] This matter is not addressed in the Respondent’s statement of facts issues and contentions and were not raised with Mr Marsh during the hearing. Mrs KM did however respond on Mr Marsh’s behalf to an invitation from the Department to comment on that information. The response was that Mr Marsh did not know he needed to disclose those convictions because he considered them to be ‘spent’.[29]
[28] HB, 53, 55.
[29] HB, 164.
While it would appear that the statements Mr Marsh made on his incoming passenger cards were false, and in that regard do not reflect well on Mr Marsh at the time the declarations were falsely made, given the low-level nature of the convictions imposed, as demonstrated by the penalties imposed, I do not consider this feature of the evidence impacts on my overall assessment of the nature and seriousness of Mr Marsh’s offending and other conduct.
There is no evidence Mr Marsh has previously been warned or otherwise been made aware, in writing, about the consequences of further offending on his migration status, and nor was the offence committed outside Australia requiring an assessment as to whether it is also criminal in Australia.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[30]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[30] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[31] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[32] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[33]
Nature of the harm
[31] The Direction, cl 8.1.2(2)(a).
[32] Ibid cl 8.1.2(2)(b).
[33] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Ovshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Mr Marsh’s criminal offending was very serious, as it was a crime of a sexual nature against a child. Should Mr Marsh engage in further criminal conduct of a similar nature, the nature of the potential harm would likewise be very serious. In rejecting the submission that the absence of a real child as a victim of Mr Marsh’s offending reduces the seriousness of the offending, and as discussed above, I have reflected on the purpose in making specific provision that it does not matter that the victim is a fictitious person, and why police have adopted policing methodology of a kind demonstrated in Mr Marsh’s case. It is clear that these measures are taken out of recognition of the potential for very serious harm on children of the kind of conduct proscribed.
I have had regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I consider the potential harm arising from sexual offending against children of this kind is very grave, and I take into account that the Australian community’s tolerance for any risk of future harm would be very low, indeed unacceptable.
I am confident to conclude that any real risk, in the sense of likelihood, that Mr Marsh might repeat similar conduct is unacceptable.
Likelihood of the conduct being repeated
I have taken into account the observations of the sentencing judge as to the likelihood of Mr Marsh engaging in further criminal conduct of a similar nature. The sentencing judge was prepared to treat the offending as being out of character, found there were factors suggesting Mr Marsh was capable of rehabilitating himself and that his risk of reoffending is low.[34]
[34] HB, 73.
In arriving at this view, the sentencing judge had the benefit of a psychological report of Mr Steve Jobson, a forensic psychologist, dated 3 July 2024. Neither the report nor Mr Jobson was made available to the Tribunal. In the course of the hearing I observed that summonses had issued to the District Court of Western Australia and had been returned, but was informed that the report was not in the material provided by the court in response to the summons. Counsel on behalf of Mr Marsh submitted that they had attempted to obtain the report from Mr Jobson directly but had been told it could not be released to Mr Marsh. I am not aware of any objection having been made to the Tribunal’s summons, and am not aware of a request for a summon to issue against Mr Jobson having been received by the Tribunal.
In relation to the summons to the District Court, I do not know the circumstances in which such relevant material may not have been retained by the court or considered to fall outside the scope of the summons.
In this matter, both parties are represented by counsel, and in terms of the gathering of potentially relevant evidence I am essentially reliant on them to put relevant evidence before me. No requests were made of me to take further action to attempt to obtain what appears to be a relevant and recent expert opinion.
According to the sentencing judge, Mr Jobson diagnosed symptoms consistent with depression and anxiety, and characteristics suggesting Mr Marsh had a subtype of attention deficit hyperactivity disorder. It is not clear whether Mr Jobson was describing symptoms of depression and anxiety at the time of the offending or symptoms that have arisen as an adjustment to his then and current predicament, or both.
The sentencing judge attributed Mr Jobson to note that Mr Marsh’s work in a FIFO capacity had gradually but significantly increased his anxiety and emotional distress, resulting in feelings of loneliness and social isolation, potentially also having impact on Mr Marsh’s personal and intimate relationships. Mr Jobson is attributed to have remarked that Mr Marsh had used alcohol as a coping mechanism, and his workplace injury had resulted in further distress and feelings of inadequacy. I interpret the remarks attributed to Mr Jobson to therefore corroborate the submission made on behalf of Mr Marsh that he had depression and anxiety at the time of the offending.

Mr Jobson is attributed to have observed that Mr Marsh had used adult pornography during periods of working away, and turned to chat sites as an outlet as they offered a form of escape. The sentencing judge identified an inconsistency between Mr Jobson’s report mentioning Mr Marsh was significantly inebriated at the time of the offending, and Mr Marsh’s answers during a police interview to the effect that he was not. Mr Jobson is reported to have observed that people with ADHD, which Mr Jobson considered Mr Marsh to have, experienced difficulty with impulsivity and maintaining attention, leading to impulsivity and risky behaviours.
Mr Jobson considered Mr Marsh was a low risk of reoffending, noting him having maintained a strong pro-social and productive lifestyle, and finding no evidence of sexual attraction to children or adolescents. How that conclusion was reached, including the nature of any applicable psychometric testing or collateral history was not explained.
I do not know the extent to which Mr Jobson’s opinions were tested given the nature of sentencing in criminal matters, and certainly there is no indication that any further explanation or elaboration was requested in relation to the statement that there was ‘no evidence of a specific sexual attraction to children or adolescents’ despite the sentencing Judge’s other observations concerning Mr Marsh’s persistent attempts to introduce an element of sexualisation in the communication and the ultimate transmission that constituted the offence. I therefore have some reservations in accepting the statement attributed to Mr Jobson that ‘there is no evidence of a specific sexual attraction to children or adolescence’ particularly given the court was actually dealing with conduct that must be understood to constitute at least some evidence to that effect. I am conscious I have no evidence to the contrary.
Nonetheless, I recognise that the sentencing judge considered there to be a low risk of reoffending and this observation carries weight.
Other information available to me addressing the risk of reoffending are the two reports of Mr Wayne Macintosh. Despite Mr Macintosh being required for cross-examination by the Respondent, he was not produced by Mr Marsh. Counsel explained on behalf of Mr Marsh that a number of attempts had been made to arrange for Mr Marsh to be available to give evidence but he was not available, and the potential consequences of this were well understood. No procedural requests were made of me arising out of this situation. No requests to summons Mr Marsh was received.
There are two reports from Mr Macintosh, one dated 30 July 2024,[35] and the other dated both 30 July 2024 and 18 March 2025. Both reports are in substance the same, indeed the report of 18 March 2025 is essentially a copy of the report of 30 July 2024 which counsel for Mr Marsh told me had been done at his request. The reports document that Mr Macintosh had been consulted by Mr Marsh on 12 occasions between December 2022 and June 2024.
[35] HB, 135, 189.
Mr Macintosh documented that Mr Marsh had said that he felt entrapped into the situation and recorded that Mr Marsh had said he didn’t believe the girl was 13 years old (the persona was 14 years old), and was over 18. Mr Macintosh documented that Mr Marsh had said he had difficulty empathising or considering the impact on the other party because he now knows the girl was actually a police officer. Mr Macintosh documented that Mr Marsh had said that he felt he didn’t deserve a prison sentence.
Mr Macintosh documented that Mr Marsh had denied he had an attraction to children and had never searched for child pornography.
Mr Macintosh confirmed that Mr Marsh had attended psychotherapy, but noted it appeared that his conduct had been an isolated incident and that it was adversely impacted by Mr Marsh’s depressed mood and sense of boredom and isolation, and disconnection from family. Mr Macintosh observed there was no suggestion that Mr Marsh had ongoing deviant intent, noting the support of family, full time employment and the personal and financial loss that the experience had come with.
As I explained to Mr Marsh’s counsel, there were a number of matters I would have raised with Mr Macintosh had he been available to give evidence. First, I would have enquired whether he considered himself qualified to express opinions addressing criminogenic factors and the likelihood of reoffending, given he is not a forensic psychologist but rather a counselling psychologist. In this regard, I note that the sentencing judge was also aware that Mr Marsh had been undertaking counselling but this counselling had been focussed on immediate and practical issues rather than addressing more deeply rooted issues that may underpin the offending.
Second, I would have enquired whether, and to what extent, he had relied on information other than that given to him by Mr Marsh, noting that obtaining a collateral history before expressing an opinion as to criminogenic factors and the likelihood of recidivism might be considered by some to be important. In this regard, Mr Macintosh’s remarks regarding Mr Marsh’s belief that the recipient of the indecent transmission was 18 was not something accepted by the jury. Likewise, Mr Macintosh’s remarks that there is no suggestion of ongoing deviant intent does not engage with aspects of the offending identified by the sentencing judge pertaining to the multiple occasions where Mr Marsh was informed that the person he was chatting to was a 14 year old girl, and his persistent efforts to introduce an element of sexualisation into the communication. My concern is that Mr Macintosh has expressed recommendations and opinions based on information given by Mr Marsh that are amenable to contradiction once the circumstances of the offending are known, and he has not been able to take that information into account either by consulting Mr Marsh since his sentence was handed down, reviewing the sentencing remarks or indeed by attending the Tribunal for cross examination.
Ultimately, I consider that the expert opinion evidence before me identifying criminogenic factors and assessing the likelihood of re-offending does not, in my assessment, reach a standard that allows me to be confident to accept the opinions offered. While I am not confident to positively accept the expert opinions that the risk of reoffending is low given the reservations I have identified, I am conscious that this does not mean that there is evidence before me to support a finding that the risk is higher.
I place limited weight on the opinions of Mr Jobson and Mr MacIntosh in circumstances where I have identified real questions requiring justification and elaboration from these experts, but I have been unable to explore them. In relation to Mr MacIntosh, I do however emphasise that I recognise that he appears to have been engaged for a therapeutic purpose, not a forensic purpose, consistent with his professional expertise.
In relation to evidence of rehabilitation achieved by the time of this decision, I have not identified any evidence of any specific rehabilitative programs undertaken. I note again that both parties are represented in these proceedings, yet I have no information before me from the Western Australian Department of Corrections. I note and take into account that Mr Marsh received counselling from Mr McIntosh as referred to above, but Mr McIntosh’s report does not suggest this counselling was directed towards being rehabilitative of the offending behaviour per se.
In relation to the likelihood of reoffending, Mr Marsh submits that I should find that it is more likely than not that he will not reoffend.[36] This submission is based on the fact that this is Mr Marsh’s only offence, he has expressed remorse for his offending, he has undertaken psychological counselling, the sentencing judge had remarked that Mr Jobson had found no evidence of a specific sexual attraction to children or adolescents, Mr McIntosh had found that there is no suggestion he has ongoing deviant intent and no obvious behaviours or evidence to suggest that there is a risk of reoffending, that he has support from his family and friends, and the court accepted the offending was out of character. Mr Marsh also submits that the punitive measures he has already faced render it highly unlikely that he would engage in such behaviour again.
[36] HB, 209.
The Respondent notes that there is evidence that the Applicant’s mental health issues and alcohol misuse contributed to his offending, but also observed that Mr Marsh is no longer taking any medication for his mental health and has not recently had any counselling or treatment. The respondent draws attention to the remarks attributed to Mr Marsh regarding difficulty empathising given he knows the victim was a police officer, and that I should find that the expressed remorse is more a remorse about the consequences of the offending for himself. The respondent submits there is no evidence of Mr Marsh having participated in any rehabilitative courses while in prison.
Both parties submit that I should find the risk of the applicant reoffending, in the sense of likelihood, is low. I am prepared to make that finding, but not with a high degree of confidence given the limitations I have identified with the expert opinion evidence before me, and the absence of evidence of Mr Marsh participating in any rehabilitative courses. I accept the offending is a single instance, and in that sense appears to be out of character. I accept the submission of Mr Marsh that it is more likely than not that he will not engage in criminal or other serious conduct.
Overall as to the protection of the Australian community, I consider that Mr Marsh’s offending is very serious, the harm to the Australian community should it be repeated is very serious and the likelihood that it would be repeated is low, and that it is more likely than not that he will not reoffend. I am not satisfied the likelihood is nil or so remote as to be trivial.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence that Mr Marsh has perpetrated family violence. This consideration is therefore not relevant.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
Mr Marsh’s spouse, Mrs “KM” and his adult children Mr “L” and Ms “K” constitute as his immediate family.
The Applicant’s Wife: Mrs KM
Mrs KM provided written statements to the Department,[37] and gave oral evidence to the Tribunal.
[37] HB, 123, 128.
Mrs KM is an Australian citizen.[38] She explains that she and Mr Marsh met in 1999 in Holland where they were working for the same company. They married in 2001 and lived for a time in Sheffield in the United Kingdom and had their first child. They then moved to Australia where Mrs KM’s family would support them, mentioning that Mr Marsh’s family in the United Kingdom were not supportive.
[38] HB, 115.
Mrs KM explains that she and Mr Marsh set up their life in Busselton and made many close friends. She mentions that Mr Marsh had physical and mental issues in the lead up to the offending. Mrs KM states she loves Mr Marsh and will struggle without him.
In her oral evidence, Mrs KM confirmed that she could access a British passport and could live and work in the United Kingdom if she wished. However, she said she does not intend to join Mr Marsh in the United Kingdom as her work and children are in Australia. She considers she would be likely to visit him. Mrs KM confirmed that she and the children supported Mr Marsh and wanted him to be able to return to Australia.
In his evidence, Mr Marsh expressed concern that Mrs KM would lose the home in which they had resided because his income had been needed to meet the payments, and this topic was also raised with Mrs KM. In his further evidence, Mr Marsh explained that he had operated a business which had foundered during the global financial crisis and he had gone bankrupt. His mother-in-law had secured a mortgage for his and Mrs KM’s family home as he was unable to do so, and the payments he and Mrs KM had referred to in evidence as ‘rent’ were in fact the mortgage payments paid to his mother-in-law. Mr Marsh said that his mother-in-law owned the home, but in her will it has been left to him and Mrs KM.
In her evidence, Mrs KM had explained that she paid $600 per week to her mother in rent and earned about $1300 per week from her full-time work as a nurse. She had also taken in a boarder who pays $200 per week. Her daughter Ms K had recently returned to live in the three-bedroom home with her and the boarder. In her evidence, Ms K had said she contributes to household food and would contribute more when she obtains employment.
In his evidence, Mr Marsh predicted that if the decision was to refuse to revoke the visa cancellation, he and Mrs KM would divorce. Mrs KM was less emphatic in her evidence, but ultimately considered that would be likely if they could not be together.
I find that the impact on Mrs KM of a decision not to revoke the decision to cancel the visa will be significantly adverse. I consider such a decision will introduce financial difficulty for Mrs KM in Australia, although I do not accept it will be such that her accommodation is at risk, having regard to her own income, the financial evidence she gave and the nature of the arrangement with her mother’s ownership of the house. I accept that the impact such a decision would be aversive emotionally on Mrs KM, and is likely to result in divorce from Mr Marsh.
The Applicant’s Daughter: Ms K
Ms K provided a written statement to the Court,[39] and Mr Marsh provided a series of letters his daughter had sent to him.[40] Ms K provided a further statement to the Department.[41] In her statement to the court, Ms K said she and her father have been close and are still very close, and she had never felt awkward or uncomfortable in his presence. She explained her father had been supportive during her university degree, and the criminal case had put a lot of pressure on her family.
[39] HB, 126.
[40] HB, 154-155.
[41] HB, 149.
In her statement to the Department, Ms K identified distress at the prospect of her father not being present at any wedding and not being able to see any grandchildren growing up.
In her oral evidence to the tribunal, Ms K elaborated on her statement by explaining that a consequence of her father’s absence had been that she had withdrawn from her secondary teaching degree. She said she was unable to remain in Perth to continue her studies without the financial support her father had offered. In elaborating on this, Ms K said she had lived with her grandmother and paid rent and had been both working, receiving social security support and studying, but felt she needed to return to Busselton to be with her mother and was unable to study her course there. She considers she may return to her course at a later time.
In both Mr Marsh’s evidence and Ms K’s evidence it was recognised that Ms K would be able to acquire a British passport and live and work in the United Kingdom. Mr Marsh said his daughter had the travel bug, and he anticipated she may wish to spend some time with him in the United Kingdom. In her evidence, Ms K agreed that she may travel to the United Kingdom to visit her father.
I accept that Ms K will be adversely impacted by a decision to refuse to revoke the visa cancellation. I accept that she was reliant to a degree on financial support from her father for her study, and the circumstances of his incarceration necessitated her return from Perth to Busselton and has rendered continuing her study more difficult than it would otherwise have been. I do not accept that Ms K’s continued study turns on whether or not her father’s visa remains cancelled however. Nonetheless, I accept that emotionally and practically, a decision to refuse to revoke the visa cancellation will impact upon Ms K adversely.
The applicant’s son: Mr L
Mr L provided a statement to the court,[42] and to the Department.[43] Mr Marsh was born in the United Kingdom but migrated to Australia as an infant and acquired Australian citizenship on 27 August 2016.[44]
[42] HB, 127.
[43] HB, 151.
[44] HB, 117.
In his statement, Mr L recounts his close bond with his father during his childhood, describing his father as one of his best mates. Mr L also describes the impact on his mother and his sister of his father’s absence. He said he did not take up a FIFO job opportunity due to his father’s absence and his need to remain close to his mother. He told the Tribunal that he works locally as a concreter.
In his oral evidence, Mr L confirmed he was a dual citizen but had not travelled to the United Kingdom since arriving in Australia as an infant. He said he would visit his father in the United Kingdom, but explained he was trying to set himself up in Australia with his fiancé. He would travel when he had the finances to do so.
I accept Mr L will be adversely impacted by a decision to refuse to revoke the visa cancellation. The nature of the adverse impact is primarily emotional as I accept he and his father are close.
Overall, I consider the impact of the decision of Mr Marsh’s immediate family members in Australia will be significantly adverse, with some limited amelioration available through the capacity of his immediate family members to travel to the United Kingdom and visit him. I accept there is some financial adversity, particularly for Mrs KM and Ms K. I accept all members of Mr Marsh’s immediate family will be adversely impacted emotionally by his absence. I place significant weight on this consideration as part of the overall evaluative task with which I am engaged.
I must also consider the strength, nature and duration of other ties Mr Marsh has to the Australian community. In doing so I must have regard to how long Mr Marsh has resided in Australia, including whether he arrived as a young child, with more or less weight being given depending on whether the non-citizen began offending soon after arriving in Australia and where the non-citizen has spent time contributing positively to the community, and the strength nature and duration of any family or social links with Australian citizens, permanent residents or people with an indefinite right to remain in Australia.
Mr Marsh migrated to Australia as an adult. He resided in Australia for a significant period of time and raised his family prior to his offending. He contributed positively to Australia through his work and operating his business. I take all these matters into account, demonstrating and confirming that Mr Marsh has strong ties to the Australian community.

I also accept Mr Marsh’s evidence that during the period receiving workers compensation, he volunteered at St Vincent de Paul helping sort donations. I also accept that in his local community, he was involved in sporting activities, playing soccer himself and coaching his son’s soccer team, and also assisted establishing the local rugby team for school children. I also take these matters into account and consider they demonstrate considerable social links with the Australian community.
I received and considered evidence from a range of other witnesses. Generally speaking, this evidence has demonstrated both Mr Marsh’s social links and corroborated the adverse impact a decision not to revoke the cancellation of his visa will have on his immediate family:
·Ms BR: Ms BR provided statements explaining that she is Ms K’s best friend and had never felt uncomfortable around Mr Marsh.[45] She said that Mr Marsh always treated her like a member of the family and she always felt safe and welcomed. Ms BR says that not having Mr Marsh in the country will cause stress on his children as the family is very close. Ms BR was called for cross examination.
·Ms NP: Ms NP provided statements.[46] In her statements, she explains she is a family friend, believes Mr Marsh is hardworking, has shown remorse for his conduct and that she has seen first hand the impact of his absence on the family. In her oral evidence she emphasised that she had found Mr Marsh to be very welcoming, outgoing and approachable.
·Ms GB: Ms GB provided a statement stating Mr Marsh has been a supportive family man and good husband.[47] She states he has expressed remorse, and his deportation would have a detrimental effect on his family. Ms GB was called for cross examination but she did not take the Tribunal’s phone calls.
·Mr PB: Mr PB provided a statement to the court in advance of Mr Marsh’s sentencing.[48] He states he was a school friend of Mr Marsh and they keep in touch. He considers Mr Marsh’s offending is out of character.
·Mr TC: Mr TC provided a statement to the court in advance of Mr Marsh’s sentencing.[49] He has been a friend of Mr Marsh for approximately 6 years, meeting him on a mine site and becoming friends when they realised they had mutual friends in the UK. Mr TC speaks positively of Mr Marsh’s character. He did not give oral evidence in the hearing.
·Ms NB: Ms NB has provided a statement.[50] She is Mr Marsh’s mother in law. She expresses support for Mr Marsh in her statement. She was unavailable to give oral evidence to the Tribunal.
·Mr AG: Mr AG provided a statement.[51] He was Mr Marsh’s neighbour from March 2013. He describes Mr Marsh’s family relationships as excellent. He did not give oral evidence to the Tribunal.
·Mr MS: Mr MS has provided a statement.[52] He has known Mr Marsh for 12 years through Mr Marsh’s wife working in his shop. He has observed Mr Marsh to be a loving father and husband, and mentions Mr Marsh’s ties to the community through sport. He believes Mr Marsh has nothing to go back to in the UK, and says he does not see why deporting Mr Marsh would be any advantage to Australia as Mr Marsh has informed him that the underlying factors that caused his offence have been addressed. Mr MS did not give oral evidence to the Tribunal.
·Ms MB: Ms MB provided a statement.[53] She is Mr L’s partner. She speaks of a great relationship with Mr Marsh, and describes the big impact of Mr Marsh’s absence on the wider family. Ms MB gave oral evidence to the Tribunal.
·Ms PF: Ms PF is Mr Marsh’s aunt, who has also migrated to Australia. She has not provided a statement but was mentioned by Mr Marsh and Mrs KM. I understand from Mr Marsh that he has been close with his aunt in circumstances where he is estranged from his parents in the United Kingdom. I am told that she is supportive of Mr Marsh, but in the absence of any evidence from her I place little weight on this evidence or on the strength nature and duration of Mr Marsh’s ties with her as a family link.
[45] HB, 129, 162.
[46] HB, 132, 156.
[47] HB, 154.
[48] HB, 130.
[49] HB, 131.
[50] HB, 153.
[51] HB, 155.
[52] HB, 163.
[53] HB, 193.
I consider that the strength, nature and duration of Mr Marsh’s ties to Australia are very substantial. In particular, considering the adverse impact of a decision to refuse to revoke the visa cancellation on Mr Marsh’s immediate family, I consider this primary consideration weighs strongly in favour of revoking the decision to cancel the visa. The weight of this consideration is further reinforced by recognising that Mr Marsh has established substantial social and family links in Australia, and has contributed positively to the Australian community through his work and involvement in local sport.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.
No specific children whose interests may be affected by the decision have been identified by Mr Marsh in his evidence or submissions. When asked during the proceedings whether there may be any such children, Mr Marsh suggested there may be children of his friends who he had once babysat who will be impacted by the decision as they would not be able to see him anymore. I have taken into account Mr Marsh’s remarks in this regard but find that any such children, who remain unidentified and described only by a vague class, are not in fact children affected by the decision.
This consideration is therefore not relevant.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction No 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of Direction No 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached.
I have found that Mr Marsh’s conduct is viewed very seriously under the Direction, and it falls within the conduct identified in paragraphs 8.5(2)(c) of the Direction as an offence of a sexual nature committed against children.
I find that the Australian community would expect that Mr Marsh’s visa would remain cancelled on the basis of the expressed norms provided for in the Direction. I consider that the expectation of the Australian community weighs heavily against revocation in the context of the overall evaluative determination I am undertaking.
Other considerations
Paragraph 9 of Direction No 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[54]
[54] Direction No 110 para 9.1.
While this consideration in Direction No 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[55]
·Refusal of other visa applications and cancellation of other visas;[56]
·A prohibition on applying for other visas;[57] and
·Periods of exclusion and special return criteria may apply.[58]
[55] Migration Act ss 189, 196, 197C, 198.
[56] Migration Act s 501F.
[57] Migration Act s 501E.
[58] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[59] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198 of the Act.
[59] Migration Act s 15.
Mr Marsh however has already elected to depart Australia and is now in the United Kingdom. The legal consequences of a decision to (affirm the decision) to refuse to revoke the cancellation of his visa will not therefore include unlawful status in Australia, mandatory immigration detention or being subject to a removal process.
Similarly, as Mr Marsh is not in Australia, he cannot engage any non-refoulement obligations. He has not, in any event, made any such claims.
The legal consequences of a decision not to revoke the visa cancellation do however, for all practical purposes, involve permanent exclusion from Australia. In this regard certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for ‘permanent’ exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.
At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, I mention the decision of Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003.
I understand that Rano has been appealed by the Respondent, but at the time of my decision it relevantly binds me. In that matter, the Court concluded that the applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa…and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.
As the practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account.
Extent of impediments (if removed)
Paragraph 9.2 of Direction No 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
(a)The Applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the Applicant in their country.
Again, it must be observed that Mr Marsh is not amenable to removal from Australia as he has taken that matter into his own hands and departed already.
As submitted by the Respondent, as Mr Marsh has returned to the United Kingdom, the relevance of this consideration is questionable. The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked, and I consider it appropriate to consider the evidence available to me addressing any impediments Mr Marsh faces in establishing himself and maintaining basic living standards in the United Kingdom, notwithstanding that those circumstances will not now arise as a result of a future act of removal.
Mr Marsh is 57 years old. He is generally of good health to my knowledge, although I have taken into account that he was identified to have mental health conditions and had previously received counselling and psychotherapy in that regard. I am also aware that at the time of his offending, Mr Marsh had experienced a workplace injury involving his groin, which he elaborated upon at the hearing. I note that by the time of his sentencing, he had returned to work. I understand from Mr Marsh’s evidence that the condition he described has not fully resolved, and may not fully resolve, but as he had been able to return to work I consider any functional incapacity arising from that condition has essentially resolved. Mr Marsh told the Tribunal that he no longer takes any medication for his mental health.
Although Mr Marsh said in his evidence that he has been unable to see a doctor in the United Kingdom because many doctors have closed lists, I consider his capacity to access health care, including mental health care, is consistent with that generally available to other citizens of the United Kingdom in the United Kingdom. I have no basis to consider that if Mr Marsh requires health care in the United Kingdom he will not be able to access it. Furthermore, I proceed by taking on notice that the nature and quality of the public health system in the United Kingdom is comparable and similar to that available in Australia.
Mr Marsh described his current living arrangements as living in a share house in Sheffield. He indicated he intended to look for work in transport in the coming week, explaining that he would be prepared to move anywhere work was available in the United Kingdom, noting that salaries may be higher closer to London. Mr Marsh said he had enquired about public housing in Sheffield, but been told he did not yet have sufficient connection to the local area to be eligible. He is currently making ends meet using a charitable grant, but I note he spoke about his capacity to secure employment in the near future with confidence.
As for social support, Mr Marsh would be entitled to social security from the United Kingdom (if he needs it) consistently with that generally available to other citizens of the United Kingdom in the United Kingdom.
In relation to family support however, Mr Marsh described circumstances where he is estranged from his parents and adult children in the United Kingdom. I accept from Mr Marsh’s description of the circumstances and nature of the estrangement that it is substantial, but it is unnecessary to relate the details. He has not seen his family in the United Kingdom them but he understands his parents, for example, are aware he has returned. In these circumstances, I consider Mr Marsh is likely to be socially isolated and potentially struggling to adjust to his new circumstances without family or social support.
In relation to the impediments Mr Marsh is currently facing therefore, I accept that being isolated from his family in Australia is no doubt distressing and requires adjustment, and that amounts to an impediment. I give some weight to this consideration in favour of revoking the visa cancellation. However, in terms of Mr Marsh maintaining basic living standards, and accessing such medical and economic support he may require, I do not consider he faces any impediment.
Impact on Australian business interests
Paragraph 9.3 of Direction No 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Marsh did not advance a case in this regard at hearing. I have noted correspondence from Destec dated 4 April 2024 confirming Mr Marsh’s employment as a Leading Hand,[60] and the information Mr Marsh provided in his request for revocation as to h is employment history, but it was not argued that any of the businesses identified would be impacted if Mr Marsh were not permitted to enter or remain in Australia. I am not satisfied that any Australian business interests would be impacted by a decision not to revoke the decision to cancel Mr Marsh’s visa.
[60] HB, 133.
CONCLUSION
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said:
‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[61]
[61] [2023] FCAFC 138, [23].
I find the guidance from the Court at paragraph [38] is particularly instructive:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.

In my evaluation, I have placed significant weight on the nature, extent and duration of Mr Marsh’s ties to Australia, and in particular the impact of a decision not to revoke the visa cancellation on his immediate family members.
However, contrary to the submissions advanced on Mr Marsh’s behalf, I have formed the view that his offending is very serious, and while low I consider that any risk of Mr Marsh repeating such conduct is unacceptable. I have also formed the view that the Australian community would expect the visa to remain cancelled, particularly as I have formed the view the offending is very serious.
Ultimately, I have not identified other factors of sufficient weight, as part of the overall evaluative process, that amount to another reason to revoke the cancellation of Mr Marsh’s visa given my conclusions about the protection of the Australian community, including the very serious nature of the offence, and the expectations of the community.
I have therefore decided that the result of the overall evaluative exercise I have undertaken is that there is not another reason to revoke the decision to cancel Mr Marsh’s visa.
The decision under review is affirmed.

143. I certify that the preceding 142 paragraphs are a true copy of the reasons for the decision herein of Senior Member Kennedy.

........................[SGND]................................
Associate

Dated: 17 April 2025

Date of hearing: 7 April 2025

Applicant’s Representative: Mr Ismail Rasheed of IR Legal

Respondent’s Representative: Ms Jessica Schults of Mills Oakley

Date of hearing:	7 April 2025
Applicant’s Representative:	Mr Ismail Rasheed of IR Legal
Respondent’s Representative:	Ms Jessica Schults of Mills Oakley