Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3498
•28 September 2021
Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3498 (28 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/4663
Re:Gordon James Metcalfe
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Date:28 September 2021
Place:Perth
The Reviewable Decision, being the decision of the Delegate dated 5 July 2021, not to revoke the mandatory cancellation of the Applicant’s class BB–Subclass 155 Resident Return Visa pursuant to 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.........[Sgd]...............................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – possession of child exploitation material – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 76-year-old man who came to Australia as a 27-year-old – extent of impediments if returned to UK – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(6B), 500(6L), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501G
Migration Regulations 1994 (Cth) – reg 1.05A, 2.43
CASES
DGBK and Minister for Home Affairs [2019] AATA 243
Edwards and Minister for Home Affairs [2019] AATA 4260
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Webb v Minister for Home Affairs [2020] FCA 831
Wu and Minister for Immigration and Citizenship [2012] AATA 834
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
ZKYX and Minister for Home Affairs [2019] AATA 1414
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.2, 8.2(2)(b), 8.4, 8.4(1), 8.4(2), 8.4(2)(c) 9
REASONS FOR DECISION
L M Gallagher
28 September 2021
INTRODUCTION
This is an application for a review of a decision made by a delegate of the Respondent
(the Delegate) on 5 July 2021 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s class BB–Subclass 155 Resident Return Visa (the Visa) under s 501(3A) of the Act (the Reviewable Decision).
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 13 July 2021,[1] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.
[1]R1, G1.
BACKGROUND FACTS
The Applicant is a 76-year-old man who was born in, and is a citizen of, the United Kingdom (UK).[2]
[2]R1, G35.
The Applicant first arrived in Australia when he was 27 years of age.[3] On 25 August 2016, the Applicant was granted the Visa.[4] The Applicant has departed Australia on numerous occasions since his first arrival,[5] including holidaying in the UK in the 1980s.[6]
[3]R1, G35, pp 206-207.
[4]R1, G36, p 211.
[5]R1, G35.
[6]Transcript, p 31 [25].
The Applicant’s wife (Wife), two adult children and two minor grandchildren reside in Australia.
Applicant’s offending
On 8 December 2020, the Applicant was convicted in the District Court of Western Australia under s 220 of the Criminal Code (WA) of Possessed child exploitation material (the Offence).
The Applicant received a sentence of 12 months imprisonment for his offence, which was partially suspended, such that the Applicant served four months in prison.[7]
[7]R1, G3, p32.
Following his release from prison, the Applicant has been detained at a detention centre.
Present proceedings
On 19 January 2021, the Visa was cancelled by the Delegate under s 501 (3A) of the Migration Act (Cancellation Decision).[8] The Visa was cancelled on the basis that the Applicant did not pass the character test in s501(7)(c) of the Migration Act, by virtue of his having been sentenced to a term of imprisonment of 12 months or more.
[8]R1, G36.
On 16 February 2021, in response to the Delegate’s invitation to do so,[9] the Applicant made representations in support of his request for the Cancellation Decision to be revoked.[10]
[9]R1, G36, p212.
[10]R1, G8.
After considering the Applicant’s representations, the Delegate made the Reviewable Decision on 5 July 2021.[11]
[11]R1, G2.
On 13 July 2021, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[12] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[12]R1, G1.
ISSUES
The Applicant does not dispute that he does not pass the character test.[13] The Tribunal, in any event, so finds: s 501(6)(1)(a) of the Migration Act precludes a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more.[14]
On the basis that on 8 December 2020, the Applicant was sentenced to a term of imprisonment of 12 months,[15] he has a substantial criminal record as defined and therefore does not pass the character test.
[13]A1 [4.1]; Transcript p 9 [15].
[14]Migration Act s 501(7)(c).
[15]See [6] and [7] above.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[16] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason” why the decision to cancel the visa should be revoked,[17] having regard to the primary and other considerations in Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 90).[18]
[16]Direction No. 90 para 5.1(3).
[17][18]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 28 September 2021.
THE HEARING
The hearing was held on 8 September 2021 at the Tribunal.
The Applicant was represented by Ms Briony Chen, instructed by Ms Sophie Manera, both of Tang Law and the Respondent was represented by Mr Arran Gerrard of the Australian Government Solicitor. The Applicant appeared by videoconference. Ms Chen, Ms Manera and Mr Gerrard appeared in person. The Applicant’s remaining witnesses appeared by telephone.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses:
(a)Dr Phil Watts (Clinical Psychologist); and
(b)Mr Peter Dunlop (Clinical Psychologist).
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) filed on 10 August 2021, with attachments 1 to 11 (A1);
(b)Applicant’s hospital and International Health and Medical Services Records filed on 3 September 2021 (A2);
(c)A 241-page set of documents provided under s 501G of the Migration Act numbered G1 to G37 and filed on 27 July 2021 (R1); and
(d)Respondent’s SFIC dated 24 August 2021 (R2).
The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s family and friends, previously provided and contained within R1 and the attachments to A1.[19] These lay witnesses did not give oral evidence at the hearing.
[19]Namely, A1: Attachments A2, A3, A9 –A11.; R1: G14–18, G30–33.
The Tribunal has reviewed all of the evidence before it and refers to relevant materials below.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Act
Section 501(3A) of the Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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 a Territory.
The character test
Section 501(6) of the Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90) under s 499 of the Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[20]
[20]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[21]
[21]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[22] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[23]
[22]Direction No. 90 para 5.1(4).
[23]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[24]
[24]Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[25]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
[25]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No. 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant
In his statements,[26] and orally at hearing, the Applicant gave the following evidence regarding his early life and his family:
[26]A1, Attachment 1; R1, G11, G12 and G13; R1, G6 and G20.
(a)He was born in the UK in 1945.[27]
[27]A1 [3].
(b)He is estranged from his younger brother,[28] who lives in the UK.[29] He has no other family in the UK.[30]
[28]Transcript, p 32 [5].
[29]A1 [3]; R1, G6 and G11.
[30]A1 [4]; R1, G6 and G11; transcript, p 31 [35].
(c)He worked with the Ford Motor Company[31] from the age of 17 until he travelled to Australia in 1972.[32]
[31]Transcript, p 35 [10]–[15].
[32]A1 [58]-[61]; R1, G6, p 86.
(d)Since he first arrived in Australia at the age of 27, he has travelled once to the UK in 1984 with his family to visit his parents, for about six or seven weeks.[33] Once his parents passed away, there was no point going to the expense of returning to the UK with his young family.[34] He did not attend his parents’ respective funerals in the 1980s, given the expense involved with travelling to the UK at that time.[35]
[33]Transcript, p 31 [25] and p 67 [10]-[20]. The Tribunal notes the Applicant’s movement records indicate the Applicant did not travel in 1984, however there is a record that the Applicant travelled for a six-week period in 1983 (R1, G35 pp 208-210)..
[34]Transcript, p 31 [30].
[35]Transcript, p 67
(e)In Australia, he worked in pest control,[36] and ran a number of small businesses[37] until his retirement in 2016.[38] He had great trouble handling his retirement and became miserable.[39]
[36]A1 [62]; Transcript, p 35 [30].
[37]A1 [63]–[67]; R1, G6, pp 86-87; Transcript, p 35 [30]–[45] and p 36 [5]–[20].
[38]A1 [68].
[39]A1 [68].
(f)Outside of work he has always been involved in badminton, as a player and until recently in committee positions in various badminton clubs.[40] These clubs will not run as smoothly without his involvement.[41]
[40]R1, G6, p 87. See also R1, G26–29.
[41]R1, G6, p 88.
(g)He has been married to his Wife for almost 48 years,[42] who is also retired.[43] Since retiring, he and his Wife spend most of their time together at home or our on trips together.[44]
[42]A1 [5].
[43]A1 [11].
[44]R1, G6.
(h)His Wife’s caring nature and emotional support has been most important in helping him overcome four separate bouts of depression he suffered over the last 15 years.[45]
[45]A1 [8], [9].
(i)He has an overwhelming fear of being forced to leave Australia to return to a country where he doesn’t know anyone.[46] This includes fears for his health in the context of his respiratory conditions and in relation to COVID-19.[47] While his Wife would want to join him there,[48] medical reasons may prevent her from doing so[49] and he would have to live the rest of his life in isolation.[50] Returning to the UK would totally destroy his life.[51]
[46]A1 [14]. See also R1, G6, p 90.
[47]R1, G6, p 90. See also Transcript p 34 [40]–[45];p 35 [5].
[48]See Transcript, p 17 [45]; p 18 [30]; p 69 [30];A1, Attachment 9 [18].
[49]See also R1; G6; G13; Transcript, p 34 [10]–[15].
[50]A1 [15],[16].
[51]R1, G6. See Transcript, p 34 [5]–[10].
(j)He is close with his adult children:[52]
(i)a son (the Son), who lives in Melbourne[53] and whom he would visit regularly until recently;[54] and
(ii)a daughter (the Daughter), who lives from 20 minutes from him and his Wife.[55]
(k)The Daughter is a single mother whole relies heavily on him and his Wife to assist with the care of her two children,[56] child one (13 years old) and child two (11 years old) (the minor grandchildren).[57]
(l)He and his Wife are very close with their grandchildren, who would regularly visit, stay over, and go out to various places together with them.[58] He would also assist with the grandchildren’s school activities such as fundraising.[59]
(m)The Daughter would suffer financially if he were to return to the UK and be unable to continue to assist with the care of her two children, as the Daughter runs her own business and needs to work whenever possible.[60]
(n)His children and grandchildren would be unable to visit him in the UK for financial reasons.[61]
(o)If his Wife did return with him to the UK, it would be catastrophic to their grandchildren.[62] His Wife would be extremely lonely in the UK.[63] All of his Wife’s friends and family, including her elderly siblings, are in Australia.[64]
[52]A1 [21].
[53]A1 [20].
[54]R1, G6.
[55]A1 [19]. See also R1, G6.
[56]A1 [19], [42]. See also Transcript, p 32 [45]; p 33 [5].
[57]A1 [44].
[58]A1 [46]–[55]. See also R1, G6 p 68; Transcript, p32 [20]–[30];p 33 [5]–[25].
[59]A1 [56].
[60]A1 [42], [43].
[61]Transcript, p 69 [35]–[40].
[62]A1 [57]. See also R1, G6p 68, G11
[63]R1, G6.
[64]Transcript, p 34 [15]-–[20].
As to the circumstances surrounding his offending conduct, the Applicant stated he suffered a series of life changing events which caused him to suffer episodes of depression, which cumulated as each event occurred, and for which he engaged in a number of what he claims to be ‘self-treatment’ measures:[65]
[65]A1 [69]–[94]. See also R1, G6, G11,G12.
(a)1st episode: 2005 – Death of a close friend, closure of his business of 20 years, cessation of a 15-year ex-marital partnership and acceptance of having turned 60 years old.[66]
[66]Transcript, p 38 [20]–[40].
(i)The Applicant consulted his GP, who prescribed him with Zoloft, which he tried with some success regarding his mood.[67]
[67]R1, G13; Transcript, p 38 [40]–[45].
(ii)However, he and his Wife, together,[68] were unprepared to accept his suffering from sexual impotency as a side effect from Zoloft and he discontinued use.[69]
[68]Transcript, p 38 [45].
[69]See also R1, G11; G13.
(iii)He and his Wife did not return to the GP after he discontinued using Zoloft,[70] because he and his Wife thought they had a solution to the problem.[71] Namely, they devised an alternative approach from the Applicant’s own thinking and research.[72]
[70]Transcript, p 39 [10]; p 70 [20].
[71]Transcript, p 70 [30].
[72]Transcript, p 39 [5]-–[15].
(iv)He and his Wife, together, decided that instead, he would generate a strong positive mental attitude about the future, by, for example, playing sports, venturing out with his Wife[73] and:[74]
[73]Transcript, p 38 [45]; p 39 [5], [20]–[25].
[74]A1 [77]–[83].
77.An additional part of this approach was for me to view interesting, bright, smiling, happy images. I started searching the internet for interesting positive happy images of many subjects, such as scenes from parks, beaches, sports events, Christmas scenes, holidays etc.[75]
[75]A1 [78].
78. On one occasion while searching the net for more lifting images I found a most delightful cheering site showing a range of young ladies having fun and enjoying themselves in parks, on the beach, dancing etc.[76] They had their whole lives ahead of them. None of the images were in any way sexual. The site described them as “Lovely Lolitas having fun.” So using the term Lolitas that the site had used, I went looking for more of these cheering delightful images.
[76]See also R1, G13.
79.Over time I built up a library of interesting cheerful happy images of many subjects which I would look through at least twice a day, in addition to my other mind untangling activities that I was also undertaking as detailed above.
80. It is true that during my searching I would on occasions be sent CEM material, but seeing those types of sad or exploited images was certainly not going to assist overcome [sic] my depression, so when I found them, I just deleted them.[77]
[77]See also R1, G13.
81. As was mentioned by Peter Dunlop, if you break a leg on a Friday, you do not expect to be back playing football the following Monday and he stated that the same applies to a broken mental attitude, you must allow time for it to heal.
82. Fortunately, I found that by using the positive outlook mental approach several times every day, after a period of three to four months I felt that I had returned to my normal mental state, at which time I deleted all the files from my computer that had related to this process.[78]
[78]See also R1, G13.
83. After this first really serious depressive attack, had I been aware that I was going to periodically suffer similar depressive episodes over [sic] coming years I would have kept all the happy cheerful images I had located to help with my corrective processes on those future times, but I didn’t.
(Emphasis added).
(b)2nd episode: 2011 – closure of his online business and brother-in-law passed away from malignant melanoma:[79]
[79]A1 [85]-[88].
87. I felt like the black cloud of depression again gathering over me, so immediately again implemented the steps detailed above. This attack was less serious than my first one and I managed to get out of it within a couple of months.
88. Once again when searching[80] I did have a few cases of CEM presented to me but as before I just deleted them.
[80]The Applicant gave evidence at hearing that at this time he was just using general images he found on the internet using Google and it was not until years later, from 2016 onwards, that he used search terms such as ‘Lolita’ and other terminology (Transcript, p40 [40]-[45]; p41 [5]-[25]).
(Emphasis added).
(c)3rd episode: 2016 – his retirement:[81]
[81]A1 [89]–[90].
89. In 2016, I decided to retire, I became very morose and miserable. Of course, understanding the depressive condition that was again settling on me, I again set about the same approach that I had used before.
90. Unfortunately, I changed one aspect of my approach that has resulted in my current situation. As this also applies to my forth [sic] more serious bout of depression in 2019, I will give some information about that first, then detail how my approach on these last two cases varied from previous times.
(Emphasis added).
(d)4th episode: 2019 – diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and emphysema.[82]
[82]A1 [91]–[103]; Transcript, p 48 [5]–[30].
92. Suddenly I had to face the fact that I now had only a limited life expectancy.
93. I was devastated.
94. My black cloud came rolling straight back over me. I was again suffering almost as badly as I had during my first attack 14 years earlier.
95. In both of the two cases above [sic] I again returned to the procedure that had helped me handle the mind controlling condition.
96. However, by this time the peer-to-peer site that I had previously used, WinMX, was no longer available, but I had already switched to an alternative peer-to-peer site by then to download music, movies, and TV, radio programmes. This new site is called Shareaza.
97. When you first install the software to use this site, you are required to specify a folder into which the site will place all new files once they have completed downloading. Fortunately on my Lenovo computer I specified that the folder to be used for this purpose be named after the site, that being Shareaza. All files in this folder were placed there by the download site. I never placed any files into this folder.
98. Because of the nature of peer-to-peer sites the complete downloading process can take anything from hours to months to complete. Until that process is complete you do not know the contents of the file.
99.The site offers what I believed was a great advantage over the earlier peer-to peer site that I had used in that at any subsequent time you searched the site for new files it would show on the site any files that you already had in this ‘library’ which was directly connected to the site.
100. Unfortunately it turned out to be my downfall. After randomly selecting files to download, I checked all downloads for suitability. Any that I felt could be used to overcome my depression, I transferred out of this folder. After checking new files for suitability, watching them for about 10 to 15 seconds, if I found their content unhelpful or acceptable, particularly involving children, I would leave them in this folder, so that the site would not offer them for downloading again in future. It effectively became my ‘reject’ folder. I never placed files into this folder, nor changed the names of the files, as the site would not then have recognised them.
101. Although it was my intention, as before, to totally delete all files associated with my correction process on the Dell computer after I felt that I had recovered, I totally forgot the offensive files were on there and consequently neglected to delete them, while with the Lenovo computer I was still in the process of trying to correct my mental imbalance.
102. The approach worked as before with my 2016 depressive attack and was helping to overcome my 2019 bout when I received a visit from the police.
103.Of course, had I realised how serious and repugnant the material in those “reject” folders was I would have deleted them immediately, but I had seen the first 10 to 15 seconds of these files and was not aware of their total content.
…
106….The current meaning of ‘Lolita’ is different from the old conception of the word ‘Lolita.’ It is a [sic] very clearly a case of equivocation, whereby I was using the term to search for nice examples of the current Lolita culture but the judge and prosecution were using the term in the form it was used in the 1950s.
107. The pictures I was searching for by using the word ‘Lolita’ were the types of lovely and happy ladies who appeared to be in an age group of between about 19 and 24 years old. To see the types of images that I was really looking for, it is only necessary to put the search term ‘Lolitas’ into Google image. You will find plenty of examples of what I was really looking for there.
108. It is true that during my early searching I would infrequently be sent inappropriate material, but when that happened, I just deleted them.
(Emphasis added).
As to what came of the “interesting, bright, smiling, happy” non-sexual images the Applicant located over the years, the Applicant stated:[83]
Had I been aware of the situations that would develop [sic] over future years I would have kept all the happy cheerful [sic] images I had located to help my corrective processes, but unfortunately I didn’t.
[83]R1, G6, pp 83-84.
As to his remorse over his offending conduct, the Applicant stated:[84]
…I was at fault for allowing those pictures and videos to download onto my computer and was totally selfish and thoughtless in not removing the images, not ever thinking at the time that those files could have been later taken from my computer over the internet by others to use elsewhere and thereby possibly causing those poor kids even more harm through their future use.
I was certainly a total blockhead in allowing these matters to have occurred as they did and am totally remorseful for any hurt and injury, either physical or mental, that those unfortunate children, or any others in the future, were forced to suffer through any action or inaction on my part.
…
MS CHEN: Mr Metcalfe … do you feel remorseful for what you did?
APPLICANT: Totally. I made such wrong decisions. I made wrong actions. It was - I may not have been seeking them, but I allowed them to come down onto my computer. I appreciate particularly since doing Peter Dunlop’s course, the harm that it could do to these poor kids. I’m totally remorseful for those actions. And if only I could eliminated [sic] (indistinct) now, but I can’t. I feel totally - I mean - I feel totally upset for myself for having not been aware of what was happening. And I don’t know - see, it’s difficult to put into words just how bad I felt about it. But I didn’t realise it at the start. And the realisation gradually came to me, and that’s why - I know that it was my fault.[85]
(Emphasis added).
[84]R1, G13 p 119.
[85]Transcript, p 52 [5]–[15].
The Applicant gave evidence that there was no possibility he would reoffend:[86]
There is absolutely no possibility that I could repeat the procedures that resulted in the offending material being placed on my computer. Although this only occurred on those occasions [sic] that I was attempting to correct my mental problems of deep or threatened deep depression, and I was not at the time thinking clearly or logically, I learned through my long course with Peter Dunlop just how harmful my actions could have been for others.
[86]R1, G6, p 85.
At hearing, the Tribunal made a number of attempts to have the Applicant articulate the nature of what he thought his problem was at the time of his offending conduct, being the problem that he says was successfully treated by participating in the rehabilitation course offered by Mr Dunlop, in the broader context of his evidence that he would not reoffend:[87]
[87]Transcript, pp 49 [20]–[45] – 51 [45].
MS CHEN: …My next question is: how do you feel about your actions, your offence? Do you think you will reoffend?
APPLICANT: I was looking for, as you know, pictures and images all bright and shiny. Contrary to what - and this was - I commented a little while ago where someone had actually said that they were claiming that I had actually been downloading child material ‑ ‑ ‑
MEMBER: Sorry, Mr Metcalfe, Ms Chen has asked you a question of whether you think you would reoffend or not?
APPLICANT: Of course not. I mean, the items only came down when I was looking for bright, happy images. They came onto my computer and I left them in the (indistinct) file. See, it appeared to be a site - the one I was using, Shareaza, had this connection between one folder on my computer and the site. If I left any files in that folder it would not try to download them again. I found when I was getting the images that I did want, that that’s when I found I was actually getting child images coming down. When I was notified that I had a new file come down, I would check the first 10, 20 seconds of that file. If I found that it involved children, then - in a sexual connotation, I was not interested. It was not going to help me correct my mental attitude, my depression. So I ‑ ‑ ‑
MEMBER: Sorry, Mr Metcalfe, so really ‑ ‑ ‑
APPLICANT: ‑ ‑ left it on the computer, this is where ‑ ‑ ‑
MEMBER:‑ ‑ ‑ so in a roundabout way, then, is your answer - I’m just trying to understand your answer to the actual question - is it you say that no, you wouldn’t reoffend because now you have a better understanding of how to avoid the files of that particular nature on the computer that find their way to your computer ‑ ‑ ‑ ?
APPLICANT: Of course I would, yes. I mean, I don’t ‑ ‑ ‑
MEMBER: ‑ ‑ ‑ without any positive action from yourself?
APPLICANT: No. Yes. I mean, I totally understand what caused the problem. I obviously would never do that again. I mean, it has caused - not only has it caused so many problems for me, I appreciate now, which I really didn’t appreciate till I did the Peter Dunlop course, his course really instilled in me an understanding of the problems there were for possibly - for the children that were involved in making and distributing these sort of videos. And it was horrific. I mean, I know when I was sitting in the court and the judge read out what some of the videos were that were on my computer, I was horrified ‑ ‑ ‑
MEMBER: So, Mr Metcalfe - Mr Metcalfe, just before ‑ ‑ ‑
APPLICANT: I didn’t know ‑ ‑ ‑
MEMBER:Mr Metcalfe, this is Member Gallagher here. Just before you were giving a description of what was contained in some of the modules that were part of the course that was run by Mr Dunlop, and you said that they - in essence that they provided a series of strategies that people could learn to assist them, you know, if they were the sorts of people who needed those sorts of strategies. So are you saying really that you don’t identify yourself as a person who is in need of assistance and to learn those strategies; rather, you learned how horrific this type of offending was for children, and that really it was just getting a better grasp of how files would reach your computer that was the solution to the problem, as you put it?
APPLICANT: I had a problem. I mean, I appreciate there was a problem developed for me, and the course is - through understanding the course that I really understood the problem, which I really - I know I didn’t really understand beforehand. I didn’t have the ‑ ‑ ‑
MEMBER: So when you’re talking about the problem ‑ ‑ ‑
APPLICANT: the course, I didn’t have any sympathy ‑ ‑ ‑
MEMBER:‑ ‑ ‑ Mr Metcalfe, when you’re talking about the problem, [are] you talking about the problem of child exploitation in society, or are you talking about the problem of not having a sophisticated understanding of computer systems as you do now? What’s the problem?
APPLICANT: Sorry, can you say that again, please.
MEMBER:I just asked you before…
APPLICANT: What problem?
MEMBER:Yes. Perhaps if you can just answer the question yes or no, it might help me. You just said before that when you engaged in the course and the modules that were offered by Mr Dunlop, that you said that those courses offered strategies and things that people could learn to help them if they were - you said if you were someone who needed that kind of help. But what I think I’ve heard from the evidence you’ve just given is that you’re saying that you’re not someone who fell into that category of having to adopt those strategies, but rather you had just gained a more sophisticated understanding of how these files reach your computer, so you can avoid that in future. So when you’re talking about the problem just now, I’m just trying to determine what you’re saying the problem is: the problem is that these files came to your computer and that was very unfortunate; or the problem is one of the kind that would need to be assisted by the strategies that [were] offered by Mr Dunlop, so how to not find yourself in situations where that type of content that you’re searching for?
APPLICANT: I was never seeking the images that came down. I pleaded guilty because I knew they were on my computer ‑ ‑ ‑
MEMBER:Sorry, Mr Metcalfe, are you able to answer the question?
So you don’t see yourself as someone who actually needed assistance in the course that was offered by Mr Dunlop; rather are you saying that you participated in it and you learned about how horrifically awful that these circumstances are? Is that correct?APPLICANT: Yes, I did.
MEMBER: Yes?
APPLICANT: I mean, I - the trouble is I then - I had an understanding that it was my actions that allowed that to happen. I had made wrong decisions in allowing certain things to happen, which I should never have done so, and it is ‑ ‑ ‑
MEMBER: But the fact that ‑ ‑ ‑
APPLICANT: And it is ‑ ‑ ‑
MEMBER: But that was ‑ ‑ ‑
APPLICANT: ‑ ‑ ‑ I did that ‑ ‑ ‑
MEMBER:Sorry, Mr Metcalfe. But you’re saying that that was because these files made their way to your computer and you didn’t know how to stop them from reaching folders that you didn’t search for quite a number of years? Yes or no?
APPLICANT: I was not looking for years ‑ ‑ ‑
MEMBER: Sorry, Mr Metcalfe ‑ ‑ ‑
APPLICANT: ‑ ‑ ‑ it was only two occasions that I only ‑ ‑ ‑
MEMBER: ‑ ‑ ‑ Mr Metcalfe - Mr Metcalfe, could you please answer the question?
APPLICANT: Yes.
MEMBER: Yes or no?
APPLICANT: Can you ask the question again, then, please.
MEMBER:I will ask it one more time. I’ve asked it four times, I believe. So Mr Dunlop offered a course that you completed, a rehabilitative course. There were a number of modules that offered ‑ ‑ ‑
APPLICANT: Correct.
MEMBER:‑ ‑ ‑ how to develop certain strategies so that you wouldn’t be looking to engage with this type of content in future. But what you seem to be saying is the problem, the problem that you became aware of was one that there was a lack of understanding of your part as to how these images reached your computer, rather than the fact that they were viewed by you, and that that [sic] being the problem. So what I’m hearing you say is that now you have a better understanding of how these images reached your computer, therefore it won’t happen again, so you won’t reoffend. That’s how you’ve seemed to have described the problem.
APPLICANT: Right. Correct.
(Emphasis added).
The Applicant said if he were to find himself in a state of depression in future he would organise to see Mr Dunlop straight away.[88]
[88]Transcript, p 52 [20]–[25].
During cross-examination by Mr Gerrard, the Applicant stated:
(a)He grew up, went to school, and worked in the UK.[89]
(b)His estrangement from his brother was borne out of their having grown apart and his brother not contacting him since he left the UK.[90]
(c)He has not taken out Australian citizenship even though he has lived in Australia since 1972 because he felt that he was an Australian citizen, so he didn’t bother obtaining it.[91]
(d)He has no superannuation, but his Wife does.[92]
(e)He and his Wife’s house is paid off[93] and he has a small amount of savings held in a bank account.[94]
(f)Regarding his 15-year extra-marital affair, despite his various statements about his closeness with his Wife he was not always a faithful husband.[95] His Wife never knew about the affair and he had lied to his Wife about this, but she had stood by him regardless.[96]
(g)He connects his offending to the bouts of depression he has suffered over the years.[97]
(h)He never thought to use Zoloft to treat his subsequent bouts of depression.[98]
Rather, he revered to his “old methods” of treatment.[99](i)When he was arrested in December 2019, he was about 74 or 75 years old and his sexual performance was not particularly an issue for him at that point in time.[100]
[89]Transcript, p 66 [45].
[90]Transcript, p 66 [25]–[30].
[91]Transcript, p 68 [15]–[40].
[92]Transcript, p 67 [45].
[93]Transcript, p 68 [5].
[94]Transcript, p 68 [10].
[95]Transcript, p 68 [45].
[96]Transcript, p 69 [10]–[20].
[97]Transcript, p 69 [45].
[98]Transcript, p 70 [30].
[99]Transcript, p 70 [30].
[100]Transcript, p 70 [35]–[40].
When it was put to the Applicant that while he had stated that sex had not been any sort of driving force in his life for the past 20 years,[101] he had stopped using Zoloft precisely because it was affecting his sex life, the Applicant said:[102]
APPLICANT: Yes. Well, it’s still a factor with my wife. We still – we still had sex together and that’s why we didn’t want that to continue but it wasn’t something that was driving me. It was just something that we did because we were together.
MR GERRARD: Right. And at no time did you bother going to your doctor and say, ‘I’m having recurring depression. I don’t like Zoloft. Is there anything else?’? [sic]
APPLICANT: No. I did tell the doctor it presented a problem and he just seemed to accept that as he expected it virtually, I think.
MR GERRARD: You never went to counselling or even asked about going to counselling?
APPLICANT: No, because I was – we believed we found a solution which did gradually work. That is it brought my head back into normal level again.
MR GERRARD: So this solution was you - - -
APPLICANT: But it didn’t happen straight away. It took several months.
[101]A1, Attachment 1 [118].
[102]Transcript, p 71 [20]–[30].
The following narrative ensued between the Applicant and Mr Gerrard regarding the Applicant’s search techniques and related matters:[103]
[103] Transcript, pp 71 [35] – 84 [10].
MR GERRARD: …This solution was you – was what you have said, ‘Looking for bright and shiny things on the internet to brighten you mood.’?
APPLICANT: That’s right, yes.
MR GERRARD: Now, you’ve said that on a number of occasions but what exactly do you mean? What kind of images did you think were bright and shiny?
APPLICANT: Well, any people in the park. People on the beach. People dancing. Football games. Places with picture galleries. Museums. Anything that there’s people enjoying themselves.
MR GERRARD: So you found those images on the internet?
APPLICANT: Yes. And anything uplifting.
MR GERRARD: So you found all those images on the internet?
APPLICANT: Well many of them, yes. Yes, that’s why I was looking.
MR GERRARD: And of course there’s probably millions of those pictures on the internet, aren’t there?
APPLICANT: Well, there are, yes. Of course.
MR GERRARD: Why did you have to download them?
APPLICANT: And you just – because I’ve – I was – I discovered Lolita’s which I found particularly appealing to me.
MEMBER: So, Mr Metcalfe - - -
APPLICANT: Lolita’s is - - -
MEMBER: Mr Metcalfe? Mr Gerrard’s asked you?
APPLICANT: Yes.
MEMBER:Why – if there were millions of those types of images just by conducting the search why – why did you need to download them?
APPLICANT: Because I found they were images that really appealed to me. So I downloaded them.
MEMBER:So what is the answer then? That you wanted to retain a copy of them? Is that the answer to why you chose to download them?
APPLICANT: Because I downloaded them on to the computer and I would then reference them two or three times a day, looking at them.
MEMBER:So is the answer that you downloaded them so that you could look at them, that you would have them for future reference?
APPLICANT: Correct, yes. I had easy access to them.
…
MR GERRARD: You said you came across a site which had pictures of young females having fun in parks on the beach and dancing and it described them as enjoy all of our Lolitas having fun?
APPLICANT: Correct.
MR GERRARD: And that is why you started using that as a search term?
APPLICANT: Correct.
MR GERRARD: And you have objected to the finding by the Judge that you used that term because you knew it would lead to sexualised images of women, or under-age women?
APPLICANT: Yes.
MR GERRARD: In your - - -
APPLICANT: Because it wasn’t - - -
MR GERRARD: Well, in your statement you said – or your recent statement at 106 – you said, ‘The current meaning of Lolita is different from the old conception of the word Lolita. It is very clearly a case of equivocation whereby I was using the term to search for nice examples of the current Lolita culture but the Judge and Prosecution were using the term in the form it was used in the 1950’s?
APPLICANT: Correct. Yes. That’s right.
MR GERRARD: And you base this current usage of the term ‘Lolita’ on what? Because you haven’t said there. What is the word – where did you get this current idea of what a Lolita is?
APPLICANT: Because they run – I’ve – they were – that’s what I was looking at on the internet. And that’s what I saw what they were.
MR GERRARD: Did you look the definition up?
APPLICANT: Oh, yes.
MR GERRARD: You did?
APPLICANT: I mean I have looked at – if you go on Google image – and put Lolitas – you will see a whole range of what I was looking for.
MR GERRARD: Well you were talking about the current meaning of the term. Did you look up the definition of Lolita?
APPLICANT: Yes. Of course I did. Yes. The current – I was looking up what currently is the terminology used.
MR GERRARD: All right. Let’s look at what the current definition of Lolita is. Wikipedia defines it as ‘young girls who attract adult sexual desires when right is implied that the young girl is precociously seductive and therefore to blame for the adult’s desire.’ Is that the current meaning of Lolita you were using?
APPLICANT: That’s the 1950’s version.
MR GERRARD: No. It’s on a current page now (indistinct)
The urban dictionary defines Lolita as a term used to describe a prepubescent or adolescent girl who was attracted and sexually responsive. She lusts after older men and is lusted [sic] by them in return. Is that the current meaning you’re talking about?
APPLICANT: No. It’s not.
…
MR GERRARD: The online dictionary simply defines it - - -
APPLICANT: Oh, right.
MR GERRARD: - - -as a nymphet. And that’s another search term you used?
APPLICANT:Sorry. Can you say that again?
MR GERRARD: The online dictionary simply describes a Lolita as a nymphet. And that’s another term you used, isn’t it?
APPLICANT: What is?
MR GERRARD: Nymphet?
APPLICANT: What was another term I used?
MR GERRARD: Nymphet?
APPLICANT: I’m sorry. I’m not getting that word.
MR GERRARD: Nymphet?
APPLICANT: Nymphet?
MR GERRARD: Yes?
APPLICANT: Again – all right. Again, 1950’s terminology.
MEMBER: Mr Metcalfe, my understanding is Mr Gerrard’s giving these definitions from online searches he has conducted in very recent times reflecting current day, definitions of those terms. So that’s in the context of the broader question he is asking is that your understanding of what a modern day – the definition of Lolita in the modern day where the source of that definition, given that the definitions that he is describing from his searches all have a similar theme?
APPLICANT: Well, it’s not the definition as I found them.
MR GERRARD: Well where did you - - -?
APPLICANT: Because I was working on them.
MR GERRARD: Where did you find this definition?
APPLICANT: I just mentioned if you look in Google images and search for Lolitas you will find the definition there.
MR GERRARD: So is your answer that you haven’t looked up the definition. You have just looked up images?
APPLICANT: That’s right. Yes, it was images I was looking for.
MR GERRARD: So when you talk about the current meaning of Lolita it’s what you have come up with, having looked at these images?
APPLICANT: Right. Correct.
MR GERRARD: And what about nymphet? Is that the same?
APPLICANT: I wouldn’t – I don’t know. I mean I’m not – I haven’t looked that up.
MR GERRARD: What about pre-teen hard core? Is there a current definition of that term you can enlighten us about?
APPLICANT: That was a term – can I explain – that was a term that was on the search site and it was – I had no idea what those letters stood for to start with. I did eventually find out but initially I had no idea at all. And I just – it was a search term that I used thinking I might find more images that I wanted.
…
MR GERRARD: So you didn’t know what the acronym PTHC stood for initially. That’s right, isn’t it?
APPLICANT: That’s correct. Yes.
MR GERRARD: But you did know when you used it again, didn’t you?
APPLICANT: Eventually I found what it was but that was not significant because the files were not related to the search term.
MR GERRARD: You were looking up pre-teen hard core, Lolitas, and nymphet. And that’s what you thought would give you positive uplifting images of young girls playing on the beach or having picnics or something?
APPLICANT: It did do. That was the way it was. That’s the way it worked. That’s the way the peer to peer site worked.
MR GERRARD: Mr Metcalfe, it is just simply not credible or plausible that you thought that using the term ‘pre-teen hard core’ would get you anything than exactly what it says?
APPLICANT: Yes, it is. Because if you use the peer to peer site that’s what happens. That’s the way they work. They’re random numbers. They’re just random searches. The files often are just not at all related to whatever the search term is. It has 10 search terms. It doesn’t have a file name.
…
MR GERRARD: Well, you had come across this material over a significant period of time so you - - -
APPLICANT:Well, it was only three months on one’s case and two months on the other. Someone’s saying 15 years. There’s no – but that’s – sorry, that’s total rubbish. I was two months in one case and three months in another. So that’s why there weren’t many files on the computer.
MR GERRARD: Well, Mr Metcalfe, it’s not total rubbish. It’s precisely what the sentencing Judge found and it’s what you told to Ms Suen [Zuin]. The police asked you what PTHC meant and you said ‘pre-teen hard core’?
APPLICANT: I knew by then what it was, yes.
MR GERRARD: Right. And you were asked by the police if you had watched any of the files you had downloaded and you said, ‘Yeah, on occasions. Soon after downloading.’?
APPLICANT:I watched the start of them. I didn’t watch the movie – the whole movie or videos. I watched the first 10 to 15 – 20 seconds.
MR GERRARD: And you were asked when – well - - -
APPLICANT: So my son was correct. I did watch them but only for a brief time to determine what they were.
MR GERRARD: All right. And when the police asked you what your interest was in child exploitation material you said you started getting it just out of interest and you said you kept downloading some more to see?
APPLICANT: Right. Well, that’s what came off the site. I mean I would be searching and then checking the files when they came down. I wasn’t interested in actually seeing the child exploitation material, that never appealed to me in any case.
…
MR GERRARD: You were asked then if there was a sexual interest in children, and you said,
“an interest, yes, but not really a turn-on, but I thought it looked interesting” -
And that you were looking for something which looked interesting?
APPLICANT: That's right, I was looking at the children. I mean children were interesting, not sexually. And - - -
…
MR GERRARD: Mr Metcalfe, that was specifically rejected by the judge, wasn’t it?
APPLICANT:Well – but I don’t – I mean I wasn’t allowed to say anything in the court, was I? I couldn’t question them at all.
MR GERRARD: Well, the judge said,
“I don’t accept this. I have watched and listened to the recording of the search”. You answer questions clearly and concisely, you don’t ask the questions to be repeated because you do not hear them.
APPLICANT: Right. That was his opinion. I was different – I know how I was being affected. I know the confusion I was in at the time. He couldn’t see that, by the looks of it. But he had never heard me speak.
MR GERRARD: You were also asked by the police if you kept stuff in – sorry, you said to the police that you were never interested in small kids, which you clarified to mean kids under 13?
APPLICANT: Correct.
MR GERRARD: All right. And you were asked if you had an interest in other pornography, and you said that you did?
APPLICANT: I wasn’t really interested in – sexual interest, as I said already a short while ago, had diminished, I was really not that interested. I mean there was some – I mean obviously it was on – you know, everybody sees it and it comes down onto my computer all the time but I wasn’t chasing it.
…
MR GERRARD: Mr Metcalfe, you went and saw or spoke with a Ms Cinzia Zuin?
APPLICANT: Yes.
MR GERRARD: And she’s a psychologist?
APPLICANT: I know, yes.
MR GERRARD: Yes. But you disagree with what she said about you, don’t you?
APPLICANT:Well, you read out the comments you made to my wife, didn’t you.
MR GERRARD Yes?
APPLICANT: I think she actually was thinking of somebody else.
MR GERRARD: Seriously, your evidence is that you think that she was thinking of somebody else in the report that she prepared for the court?
APPLICANT: Well, how could – the report – comments she was making really didn’t seem to relate to me at all.
MR GERRARD: The psychological report from Ms Zuin described your experiences with depression and confirms that consultation notes revealed that you were prescribed Zoloft for depression in 2005. That relates to you, doesn’t it?
APPLICANT: It does, yes.
MR GERRARD: You said this medication made you impotent and you stopped taking it. That relates to you, doesn’t it?
APPLICANT: That's right, yes.
MR GERRARD: You told Ms Zuin there have been four periods in your life when you felt depressed with coincided with the deaths of friends and relatives, retirement, and the onset of health issues. You said those periods were 2004/5, 2011 to 2012, 2016 and 2019. That relates to you, doesn’t it?
APPLICANT: That's correct, yes.
MR GERRARD: So the report of Ms Zuin clearly relates to you, doesn’t it?
APPLICANT: Well, those sections do anyway.
MR GERRARD: But you told – but you disagree where it’s reported that you told Ms Zuin that you had been accessing child pornography for the last 15 years and said that this occurred at the same time you were accessing other pornography?
APPLICANT: Well, that’s totally incorrect. That does not relate to me.
MR GERRARD: And that your primary sexual interest seems to be in adult women, but you have also developed a sexual interest in underage girls?
APPLICANT: That’s not correct either. That’s no – there’s no way that’s true.
MR GERRARD: You’ve not - - -
APPLICANT: It’s some interpretation of it.
MR GERRARD: All right. What about that you have been overly preoccupied of matters of a sexual nature since you were an adolescent?
APPLICANT: Could you explain that, that expression.
MR GERRARD: Mr Metcalfe, you’re an intelligent man, you know what it means?
APPLICANT: Well, then it doesn’t – I mean overly interested? What is overly interested. I had interest in it, yes, and sex obviously, throughout most of my life. But overly interested, of course not, what does that mean?
MR GERRARD: Mr Metcalfe, the comments of Ms Zuin seem to be entirely in line with the admissions you made to the police when they [sic] were arrested. That you knew that you were downloading child pornography, you knew it was on your computer, and you did it because you thought it would be interesting?
APPLICANT:No, no, I didn’t think – now, that’s where I didn’t say I thought it would be interesting. Certainly your first two comments were correct. The third comment you made is someone’s interpretation of a comment I made to my wife, and which is totally incorrect. My wife said to me – do I continue? I mean I’m not – am I answering a question, I don’t know.
MR GERRARD: No. You can continue?
APPLICANT: My wife said to me, “Why did you do it?” And I said, “I thought it might be interesting.”But I was not referring to anything specific, it was just to the process of getting movies down - - -
MR GERRARD: So you said it to your - - -
APPLICANT:: That was not specifically related to the child pornography.
MR GERRARD: You said it to your wife, you said it to the police, and you said it to Ms Zuin?
APPLICANT: I said to them there when they were there. That was – I was never interested in it.
MEMBER: … So, Mr Metcalfe, if you’re saying that what you’re interested in when your wife asked you why did you do it, that “it” you’re saying now is referring to the process of downloading happy, shiny images?
APPLICANT: Correct.
MEMBER:Well, then wouldn’t that be a question that your wife wouldn’t need to ask you because the evidence you gave earlier when Mr Gerrard was asking you questions was – when you were talking about that you conducted your own research into your self-treatment that led you down this path with the downloads, you used the word “we” a lot, which suggests that it was something that you and your wife decided together. So if that’s the case, she wouldn’t have needed to ask you, “Why did you do it?” If “it” was referring to engaging in that treatment method, when she already would know why you did “it” because the evidence that you gave was that, “We decided that would be a form of treatment to try.” So it really doesn’t square up?
APPLICANT: Well, she did know what I was talking about. When she said, “Why did you do it?” And I said, “Because I thought it might be interesting, they might be interesting.” And that was – I didn’t know at that time. I mean it was an open statement, “They might be interesting.”
MEMBER:Mr Metcalfe, do you take my point, it doesn’t stack up? Or not really? Would you like me to line it up all again and you tell me how it falls? So you’ve given evidence earlier that when you and your wife decided that the side effects of the Zoloft were too high a price to pay, that you went down this path of looking into how to lift your mood and then you decided that looking for the bright shiny images of museums and sports games and people at the beach would be something that you thought would be of a form of self-treatment. When you gave that evidence, Mr Metcalfe you said “we” a lot, “we decided”, “we looked into it” and “we thought it would be a good idea.” So Mr Gerrard has just asked you now, he said that your wife said, “Why did you do it?” And you said that, “It looked interesting” and him proposing to you that that was in the context of, “Why did you do it?” Why did you look at” - - -
APPLICANT: I didn’t say I thought it looked interesting.
MEMBER:No, I’m not finished, Mr Metcalfe. I’m not finished.
He asked why, when your wife asked, “Why did you do it?” And suggested that that was in the context of why did you access the child pornography, you’re saying no, you’re saying that “it”, “Why did you do it?” Being, “Why did you go ahead and engage in that form of self-treatment by looking up the bright shiny images?”
Well, that couldn’t possibly be, could it, Mr Metcalfe, because you’ve given evidence just now that your wife was already on notice that she was on board that that’s what you were doing?APPLICANT:Well, my wife knew that I was searching, yes.
MEMBER: Yes. So then why would she ask you - - -
APPLICANT: Though she didn’t know specifically - - -
MEMBER:Well, I would say to you that on the evidence that you’ve given she would have known specifically why because she said that she was across the fact that the Zoloft wasn’t helping the situation and that together you went down this path of trying to access the images because you’ve said, “We did this” and “We did that”?
APPLICANT: We did, yes.
MEMBER:Well, I will leave it that then. I will leave it at that. Sorry, Mr Gerrard, please continue.
MR GERRARD: Just on that vein, as soon as the police turned up,
Mr Metcalfe, and you were with your wife, the police told you and your wife that they were investigating the possession of child exploitation material. Your wife asked you, in the presence of the police, if you had been downloading child pornography, and you said you had, and it was on the computer?APPLICANT: Right. Correct.
MR GERRARD: So you knew you were - - -
APPLICANT: I knew it was coming down, yes.
MR GERRARD: You knew the child pornography was being downloaded?
APPLICANT: Because it was on the computer, I knew that.
MR GERRARD: And in fact at the time the police turned up you were downloading child pornography?
APPLICANT: I wasn’t actually downloading it, the site was sending it to me unrequested. They were random files, that was all. I wasn’t requesting those files, they were randomly selected.
MR GERRARD: Using the terms - - -
APPLICANT: And I didn’t know what they were until they came down.
MR GERRARD: Well, except that you used the terms, “Lolita’s PTFC [PTHC] and nymphets” and that that – those search terms, you knew, had garnered child exploitation material in the past, so you knew what was coming down, and you knew what was on your computer?
APPLICANT: Of course I knew what – I knew what could come down, but my objective then was to sort through to pick out the files that I did want and the files that I didn’t want, which were the child ones, just to leave them on the reject files so they didn’t come down again.
MR GERRARD: And the other pornography?
APPLICANT: I knew they would probably - - -
MR GERRARD: And the other pornography?
APPLICANT: Sorry?
MR GERRARD: The other pornography that you were accessing that you told the police that - - -
APPLICANT: What pornography - - -
MR GERRARD: Well, you told the police and you told Ms Zuin that you accessed other pornography, not just child exploitation material?
APPLICANT: Well, rather not – I mean it came onto my computer on occasion. It’s not something I used. It was on my computer. I was 70-whatever it was, 76 at the time, I was no longer really interested. What was (indistinct) turn-ons at that age? I wasn’t chasing it. I would be on that.
…
MR GERRARD: So you gave these fairly frank admissions to the police when they turned up at your door, and you gave similar sort of admission to Ms Zuin later on, and then you talked to Mr Dunlop and you give a completely different version. That’s when you start saying that this was just inadvertent obtaining of this material?
APPLICANT: Well, it was all inadvertent, yes.
MR GERRARD: And that was completely rejected by the judge, wasn’t it?
APPLICANT: So he says, yes, that's right, he did it.
MR GERARD: The judge rejected your claim that you were confused and your answers may have been misconstrued when you were talking to the police, didn’t he?
APPLICANT: He did, yes.
MR GERRARD: And the judge found that after watching and listening to the recording that you understood the questions that were asked and you had answered clearly and concisely, didn’t he?
APPLICANT: He said that.
MR GERRARD: The judge also - - -
APPLICANT: But that doesn’t mean it’s true.
…
MR GERRARD: The judge also rejected your claim that the child exploitation material was simply an innocent biproduct [sic] of downloading more uplifting images?
APPLICANT: I know he did, yes. He did, yes.
MR GERRARD: And that is supported by your own answers to the police which indicate that you did download this material consciously?
APPLICANT: I didn’t download it consciously, I knew that it possibly would come down, and with the intention I would sort it out afterwards, run through it and keep the files that were good, and leave the other ones in my reject folder.
…
MR GERRARD: It’s supported by your answers to the police, and it’s supported by your own answer to your wife when asked if you had been downloading child pornography and you said to her that you had, and it was on your computer, and when she said, “Why”, because you found it interesting?
APPLICANT: No, that – the answer that I found it interesting wasn’t a response to the child pornography, it was that I might find interesting pictures or videos. It wasn’t specifically to child pornography and never was.
MR GERRARD: And you had, on two - - -
APPLICANT: It was a general comment.
MR GERRARD: And on two computers you had 234 videos and over 100 images of child exploitation material?
APPLICANT: Correct.
MR GERRARD: You used search terms like Lolita, nymphet, and pre-teen hardcore, and you’re making a claim that it was just to find uplifting images which you could find easily on the internet without using this?
APPLICANT: I couldn’t find – I specifically was looking for the 21st century Lolita which I found very appealing and that was - - -
MEMBER:Mr Metcalfe, this is an example of the yes or no I was talking about before, and I really would like to hear if it’s yes or no. So I will trouble you, Mr Gerrard, just to ask that again?
APPLICANT: All right.
MR GERRARD: You were found with 234 videos and over 100 images of child exploitation material on your computers?
APPLICANT: Correct.
MR GERRARD: You gathered that using terms like Lolita, nymphet, and pre-teen hardcore, and your claim is that that was all to locate these uplifting images which you could find on the internet?
APPLICANT: Well, I hadn’t done. I was looking - - -
MEMBER: So, Mr Metcalfe, yes or no?
APPLICANT: No. I presume. I think I’m reading your question correctly.
MEMBER: Do you need the question put one more time?
APPLICANT: No, I couldn’t find - - -
MEMBER: Do you need the question put one more time?
APPLICANT: All right. Please. All right. Put me the question again.
MR GERRARD: You had these videos and images of child exploitation material on your computer and you gained them from using the terms Lolita, nymphet and pre-teen hardcore, and you claim that you did this to try and get uplifting images of young people?
APPLICANT: Correct, yes. Yes.
MR GERRARD: And you couldn’t get it from just looking on the internet?
APPLICANT: Well, I might have done, but I searched elsewhere.
MEMBER: Yes or no? Yes or no?
APPLICANT: No, I couldn’t find them elsewhere.
MR GERRARD: Mr Metcalfe, that is an inherently implausible claim and I put it to you that you’re lying?
APPLICANT: Well, (indistinct) might do anyway.
MEMBER:I beg your pardon? You thought?
APPLICANT: I though [sic] that he may claim that anyway. And no I’m not, I’m telling you the truth, that’s exactly what I was doing.
MR GERRARD: And the court has comprehensively rejected that explanation and made clear findings of fact in that respect?
APPLICANT: They found – is that a question?
MR GERRARD: You accept that the court rejected your claim?
APPLICANT: The court rejected my claim? I do reject [sic] they rejected my claim, yes.
MR GERRARD: Now, Mr Metcalfe, I will trouble you with a legal proposition, which is – I think it’s important to disclose, and that is this [T]ribunal is bound by the essential findings of fact that are made by a court?
APPLICANT: Right.
MR GERRARD: So this [T]ribunal – it takes a lot for this [T]ribunal to [not] accept the findings of fact that are made by a court. Knowing what the court found about you - - -
APPLICANT: I know.
MR GERRARD: This is perhaps your last chance to stop pedalling what is a deceitful narrative. Did you knowingly download this material?
APPLICANT: I knew – I knew it was coming down.
MEMBER: Sorry, yes or no - - -
MR GERRARD: Did you knowingly - - -
APPLICANT: Yes, I did.
MR GERRARD: So you knew you were downloading child pornography?
APPLICANT: No, but I knew I could be.
…..
(Emphasis added)
When asked by Mr Gerrard, the Applicant accepted that Australia and the UK are similar countries, that he didn’t know whether healthcare in the UK was as good as that in Australia and that he has been receiving a part pension from the UK.[104]
[104]Transcript, p 84 [15]–[30].
The Applicant also accepted that as he and his Wife’s house is fully paid off and his Wife has superannuation, he would not be completely without means if he were to return to the UK.[105]
[105]Transcript, p 84 [35].
When asked, the Applicant said that if he and to access the Prisoner’s Abroad organisation in the UK to access assistance should he return, then he would certainly look into it.[106]
[106]Transcript, p 84 [40]–[45].
During re-examination, Ms Chen asked the Applicant to provide his opinion on the meaning of the word ‘Lolita.’[107] The Applicant delivered a pre-prepared definition[108] he claims to have found on Google,[109] as follows:[110]
It is part of the 21st century Lolita fashion movement described as a cooky [sic], quirky, or visually dazzling fashion trend representing cuteness, elegance, and modesty, having nothing to do with the sexual connotations linked to the novel of the same name. That’s what I was looking for. That’s the Lolita for me.
[107]Transcript, p 85 [10]–[15].
[108]Transcript, p 85 [15]–[20].
[109]Transcript, p 85 [30]–[35].
[110]Transcript, p 85 [20]–[25].
Dr Phillip Watts, Clinical Psychologist
In his report dated 5 August 2021,[111] Dr Watts gave the following opinion regarding the Applicant’s offending:[112]
[111]A1, Attachment 5, including letter of instruction from Tang Law dated 2 August 2021.
[112]A1, Attachment 5, [27]-[33].
27.The facts of the matter in regards to [sic] the offending are that Mr Metcalfe was downloading material off the internet using peer-to-peer software. Peer-to-peer software works along the lines of a person finding a title which looks interesting then downloading it. The peer-to-peer software downloads it over time and then sends a message to say that the material is downloaded. The person downloading it has no way of knowing what is inside until they open it. In other words, it is like going to the library and taking books randomly off the shelf based solely on one or two words of the title. Once the material is downloaded, people then shift through the material.
28. It is also an agreed fact that some of the material downloaded included child exploitive [sic] material, and it was this material which was the subject of the charges which resulted in a 12-month jail sentence, which was partially suspended.
29. At the time of sentencing, the Court had access to a Pre-Sentence Report prepared by the Department of Corrections (Ms Zuin’s report) and a Treatment Report prepared by Peter Dunlop, who spent an extended period of time both individually and running group programs for Mr Metcalfe. In my discussions with Mr Metcalfe, his description of the circumstances of the offence was consistent with the version put forward by Mr Dunlop; namely, at times of depression, downloading material to make himself feel better and that some of that material captured child exploitative material. When he looked at the material, he initially tried to delete it, but found that the peer-to-peer software would recreate it and download it. In the end, he said that he would leave it in the deleted file folder. He also said that there were four broad periods where he engaged in this behaviour, associated with periods of depression. That depression related to life issues. I note that Judge Massey, on page 11, acknowledges the depressive periods, but disagrees with the explanation for a number of reasons, but essentially arguing that an intelligent man such as Mr Metcalfe would have realised that the search terms he was looking at may have been used innocently on a first occasion, but when the child exploitative material was found did not explain why the searches were repeated. He also had some concerns that the type of search terms were suggestive of deliberate searching. Ultimately, it is not my place to dispute the findings of the Judge against the information provided. What is important, however, is that the Judge, on reviewing the evidence, was satisfied that “there are a number of factors which suggest you are able to rehabilitate yourself and the risk of reoffending is low.” I note that both the Zuin and Dunlop reports rate Mr Metcalfe as low risk.
30. I further note that the Judge sends quite considerable time recognising that remorse was a considerable factor, for which he gave credit to Mr Metcalfe, noting, however, the Judge has some hesitancy around the fact that Mr Metcalfe did not make a full and frank admission (page 13).
31. It is not uncommon that offenders’ versions and explanations have some difference to what a Judge may find and, in my opinion, it does not hold much relevance, in that Mr Metcalfe clearly recognises that child exploitive material was wrong, that he erred in the decisions he made, and that he is not seeking to re-offend.
32. Further, the use of stimulating material as a way of dealing with depression and trauma are quite common occurrences, in my experience, and are certainly consistent with the information available.
33. As stated earlier, in terms of actuary risk, Mr Metcalfe would be rated as low risk. In terms of how the Sentencing Judge viewed Mr Metcalfe at the time of offending, he was seen as low risk. Mr Dunlop, after an extensive treatment program, saw his risk as “as low as it could possibly be.” My own clinical review similarly finds Mr Metcalfe’s risk of reoffending as currently low and likely to remain that way. There are no particular provisos in regards to [sic] maintaining a low risk, although I would recommend he continues individual psychological therapy to ensure that he has better coping skills in the case of further episodes of depression. I am of the opinion that further sex offender treatment is not necessary.
(Emphasis added).
At hearing, Mr Gerrard emphasised to Dr Watts that the Applicant’s story about his offending conduct changed from what he told the WA Police and what he told Ms Zuin, to what he then told Dr Watts and Mr Dunlop.[113] When asked whether this inconsistency would change his view in relation to his risk assessment of the Applicant or whether or not the Applicant was engaged in effortful distortion, Dr Watts said that he didn’t think it changed his overall risk assessment, but it changed to some degree the effortful distortion.[114]
[113]Transcript, p 59 [5]–[10].
[114]Transcript, p 59 [10]–[15].
Dr Watts said, in the context of his library analogy,[115] that while a lot of people wouldn’t necessarily know that ‘Lolita’ is one of the most common search terms for child pornography, a term like ‘pre-teen hard core’ is “a pretty obvious term of what you’re going to get[116] and in that case the Applicant knew what he was searching for.[117]
[115]See Dr Watts’ report at [27], extracted above at [51].
[116]Transcript, p 60 [10]–[20].
[117]Transcript, p 60 [25].
As to Ms Zuin’s finding that the Applicant had an interest in child pornography,[118] together with the Applicant’s evidence that he does not have such an interest and he did not access the child exploitive material deliberately:[119]
MR GERRARD: … if there is an interest there – not necessarily his primary interest – but if there is an interest there and he is continuing to be untruthful about that, that’s an unmet treatment need, isn’t it?
…
Dr WATTS:As I have put in my report I thought that each continuing individual therapy to improve for coping skills because I see one of the key components being to do with ability to deal with emotional regulation at times of distress. And that would be what I would have considered his biggest treatment need. And I think, you know, Ms Suen [sic] – even with her comment – she still found him, if I remember correctly to be low risk despite the factors she identified. So, as I say, I’m not sure there’s other treatment needs to be met.
[118]R1, G4, p42.
[119]Transcript, p 62 [40]–[45]; p 63 [5]–[10].
As to the ‘low’ risk rating that Dr Watts assigned to the Applicant:[120]
[120]Transcript, p 63 [10]–[25].
MR GERRARD: … but given the application of Static-99[121] it’s almost inevitable that you’d have to have at least a low risk for an applicant that committed any kind of – what could be described as sexual offending. That’s my understanding?
DR WATTS:Well, low risk is the bottom category. You can’t be lower than a low risk …
MR GERRARD: And that’s - - -because you’ve offended already. Is that right?
DR WATTS:Yes. Exactly. Because it’s – yes, the way it’s structured is – yes, basically that’s the way it’s constructed. In risk assessment you can’t say someone is no risk because if someone is breathing there’s still some degree of risk but they rate these things on low risk or above.
MR GERRARD: And this is in comparison to people who have committed similar offences. So it’s not compared to the general populace?
DR WATTS:It’s not compared to the general population.
[121]Dr Watts described Static-99 as an actuary tool for predicting risk of sexual reoffending (A1, Attachment 5 [16]).
Mr Peter Dunlop, Clinical Psychologist
In his report dated 20 November 2020,[122] Mr Dunlop gave his opinion that the risk of the Applicant reoffending is “as low as it is possible to be.”[123] Mr Dunlop added:[124]
From a psychological viewpoint, the main problem he has is the one he nominated himself, namely his tendency to be unaware of the feelings of others. In my opinion, this is linked to the way he ended up dealing with his feelings of loss as a child…
To overcome these he needs to be able to open up to his own buried feelings of distress…via a little more one on one psychotherapy.
[122]R1, G24.
[123]R1, G24, p 176.
[124]R1, G24, p 176.
At hearing, Mr Dunlop stated that he believed the Applicant’s accounts of how the child exploitation material came to be downloaded onto his computer,[125] and that he gained a proper understanding on why this material is illegal and indecent from his rehabilitation course.[126] Mr Dunlop also stated that he was not privy to the sentencing Judge’s remarks regarding those explanations,[127] as those remarks came after he had submitted his report.[128]
[125]Transcript, p 89 [5].
[126]Transcript, p 89 [20]–[30].
[127]Nor was Mr Dunlop privy to Ms Zuin’s report (Transcript, p 92 [5]).
[128]Transcript, p 89 [35]; p 90 [5].
During cross-examination, Mr Gerrard drew Mr Dunlop’s attention to the inconsistencies in the Applicant’s narratives as follows:[129]
[129]Transcript, p 92 [20]–[45].
MR GERRARD: Are you aware that there is an inconsistency between his initial version that he gave to the police and to others and the version that he presented to you?
MR DUNLOP: No, I'm not aware of that.
MR GERRARD: In particular, the applicant had told the police that he was aware that the search terms he was using included, "Lolita, Nymphet and PTHC" and that he understood that PTHC meant "Pre-teen hard core". Were you aware of the search terms he was using to access this material?
MR DUNLOP: I'm not aware of that one, but I was aware that he was using the term "Lolita".
MR GERRARD: It's a little different, wouldn't you say, to look for - you might give some credence to an applicant saying he was using terms like "Lolita", but it's difficult to - would you agree that it's difficult to say there's any ambiguity to the term "Pre-teen hard core"?
MR DUNLOP: No. No, I wouldn't have thought there was. Had I been aware of that, I would have certainly asked him a lot more about that.
MR GERRARD: All right. Now, the applicant was also asked whether he watched the files once he had downloaded and he said to the police, "Yeah, on occasion, soon after downloading". Is that consistent with what he said to you?
MR DUNLOP: No. My - no, not completely, no.
MR GERRARD: When he was first arrested, his wife asked him, in the presence of the police, if he had been downloading child pornography, and he said that he had and it was on his computer. Then when his wife asked why he said he thought it might be interesting. Then he was asked by the police what his interest was [in] child exploitation material and he said he started getting it just out of interest and that he kept downloading some more to see. Is that consistent with the narration he gave to you?
MR DUNLOP: That's not, no, although knowing Mr Metcalfe and the response, I can imagine that he may have had a curiosity like that, but he certainly didn't acknowledge that.
MR GERRARD: What he then was asked later was if he had a sexual interest in children, and he said, "Probably an interest, yes, but not really a turn‑on, but I thought it looked interesting," and that he was looking for something which looked interesting. Is that consistent with the narration he gave to you?
MR DUNLOP: Yes, that part of it would be, although not in the context of child exploitation material.
MR GERRARD: Let me ask you this: is it possible to have an interest in child exploitation material, but not to have a sexual interest in child exploitation material, so along the lines of a morbid curiosity?
MR DUNLOP: Yes, I believe it is, and just knowing Mr Metcalfe's sort of personality and character, I can recognise that he might have had that, like, have a kind of almost technical interest in it, with not much APEC. That's why I think that the empathy modules and the other parts talk about the impact on victims and so on. He reports that as being the thing that had the most impact on him in the course - in the program.
MR GERRARD: All right?
MR DUNLOP: I don't - based on his history - and he's very open about things that people may not particularly want to admit normally, things that socially would be disapproved of, he's very open in that way, and it wouldn't surprise me - I mean, it doesn't surprise me the suggestion that maybe he was looking at this material, but not in a kind of sexual way, or not from the point of view of sexual arousal or sexual interest in that way.
MR GERRARD: You say that he was very open to you, but one of the things he was open to you about was being deceitful to his wife, wasn't it?
MR DUNLOP: Yes, extraordinarily.
MR GERRARD: That presents something of a difficulty in terms of assessing whether he's a credible or truthful witness, doesn't it, if he's - you might find that he's being open with you, but one of the things he's open about is engaging in a 15‑year deceit?
MR DUNLOP: Yes. Sorry, go on.
MR GERRARD: So is that a fair comment, that it's difficult to assess the credibility of somebody who admits to lying for 15 years?
MR DUNLOP: I suppose in the context of the work we do in charity and - I mean, part of judging honesty is not necessarily about how people behave in the community and then their personal lives, but whether there's consistency in what they say and credibility in what they say and so on.
MR GERRARD: Did Mr Metcalfe talk to you about accessing other kinds of pornography?
MR DUNLOP: No, he didn't particularly, no.
MR GERRARD: It's difficult for you to not have the material before you, and
I am aware that you haven't seen the reports of Ms Suen [sic],but there are extracts in the sentencing report and that indicates that the applicant told Ms Suen [sic] that he had been accessing child pornography for the last 15 years and said that this occurred at the same time he was accessing other pornography. Again, that's inconsistent with what he said to you, isn't it?
MR DUNLOP: Yes, that is inconsistent with what he said to me, definitely.
…
MR GERRARD: But Ms Suen [sic] found that his primary sexual interest seems to be in adult women, but he had also developed a sexual interest in underage girls, and that he was overly preoccupied with matters of a sexual nature since he was an adolescent. That's different to your findings, isn't it?
MR DUNLOP: Yes.
MR GERRARD: But do you think that would be in part based on the fact that there was a different narration given to Ms Suen [sic] than was given to you?
MR DUNLOP: Yes.
(Emphasis added).
DISCRETION TO REFUSE TO GRANT THE VISA
Having determined the Applicant does not pass the “character test,” the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No. 90, there is another reason why the Cancellation Decision should be revoked.[130]
[130]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
The Applicant contends that his low risk of reoffending, the best interests of his minor grandchildren, the extent of the impediments if he were removed from Australia and the strength, nature and duration of his ties to Australia weigh in favour of revocation.
The Applicant also contends that the expectations of the Australian community also lie in favour of revocation.[131]
[131]Transcript, pp 9–20.
The Respondent is of the view, however, that having regard to the principles and considerations in Direction No. 90 and the evidence and material before the Tribunal, the correct and preferable decision is to refuse to revoke the Cancellation Decision.[132]
[132]R2 [9].
The Tribunal notes at the outset:
(a)While the parties agree that the nature of the Applicant’s offending was serious:
(i)The Applicant contends that his conduct was inadvertent and does not reflect on his character in general.[133]
(ii)The Respondent contends that the serious nature of the Applicant’s conduct weighs heavily against revocation of the Cancellation Decision.[134]
(b)While the parties agree that the Applicant’s risk of reoffending is low, they disagree on the rationale behind this rating; what the Respondent contends is the Applicant’s false narrative in this context and what these matters ought to indicate to the Tribunal.[135]
(c)While the parties agree that the best interests of the Applicant’s minor grandchildren weigh in favour of revocation, the parties disagree on the weight that ought to be attributed to that consideration relative to the other primary considerations.[136]
(d)The parties disagree not only on whether the expectations of the Australian community weigh against revocation, they also disagree about the weight that should be given to this primary consideration. In particular, the parties disagree about the extent to which this consideration should be informed by the very serious nature in which the commission the serious crimes against children, must be viewed.[137]
(e)The parties agree that the extent of the Applicant’s impediments if removed from Australia and the strength, nature and duration of the Applicant’s ties to Australia lie in favour of revocation. However, the parties disagree on the weight that ought to be attributed to these considerations.[138]
[133]A1 [4.7.11].
[134]R2 [31].
[135]A1 [4.7]; R2 [30]–[39].
[136]A1 [4.9]; R2 [43].
[137]A1 [4.10]; R2 [44]–[50].
[138]A1 [4.12], [4.13]; R2 [52]–[55].
Therefore, the main issues in dispute between the parties are:
(a)the nature and seriousness of the Applicant’s offending in terms of what it ought to indicate to the Tribunal;
(b)the Applicant’s narrative at various points in time regarding his conduct, particularly in the manner it relates to his risk of reoffending; and
(c)the correct interpretation of Direction No. 90 in the context of the expectations of the Australian community.
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
In relation to the expectations of the Australian community, the Applicant made a number of contentions that the Tribunal struggles to grapple with in light of the norms established by Direction No. 90, namely:
(a)Members of the Australian community who are aware of the Applicant’s conviction and circumstances would expect the Applicant be given a final opportunity to remain in Australia.[236]
(b)Mature members of the Australian community would consider the Applicant’s offences were related to his depression.[237]
(c)The Applicant has been a permanent resident of Australia for almost 50 years[238] and hence the Australian community may afford a higher level of tolerance to his offending conduct.[239] This demonstrates that, in the Applicant’s view, it is the expectation of the Australian community that he would remain a permanent member of the community.[240]
(d)A “reasonable judgment” ought to be applied to the Applicant, as it was in Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693, such that this consideration does not weigh against revocation.[241]
[236]A1 [4.10.1].
[237]A1 [4.10.2]; Transcript, p 11 [35].
[238]A1 [4.10.3].
[239]A1 [4.10.5], citing Direction No. 90 para 5.2(4); Transcript, p 11 [35]–[40].
[240]A1 [4.10.3].
[241]A1 [4.10.4].
At hearing, the Tribunal explored the Applicant’s use of the word “mature” in the context of this consideration:[242]
[242]Transcript, pp 13 [30]–[45] – 15 [5].
MEMBER:…I’m just trying to be clear on what you’re saying so I understand. … So I’m just looking at your 4.10.12 in your SOFIC where you say:
It's contended that mature members of the Australian community would consider the applicant’s offences were related to his depression.
And we’ve talked about the word mature, and that’s something, an idea, that you’d like the [T]ribunal to adopt even though it’s not specifically part of the relevant paragraph. And then you’ve also asked the [T]ribunal to take into consideration the circumstances of Mr Metcalfe’s life and the context leading up to his convictions, of the circumstances surrounding his conduct. So the milestones in his life, the depressive attacks, and things like that. So I’m just trying to understand how you say the [T]ribunal should do that. So you’re saying you’d like the [T]ribunal to do that even though you appreciate that it doesn’t specifically appear in the paragraph.
MS CHEN: Yes.
MEMBER: All right.
MS CHEN: Yes.
MEMBER: Can the [T]ribunal do that?
MS CHEN: That’s our contention.
MEMBER: How can the [T]ribunal do that?
MS CHEN:We will leave it to the [T]ribunal to make a decision, but that’s our contention.
MEMBER:So you’d like the [T]ribunal to work out how it could exercise that discretion?
MS CHEN: We go with Direction 90.
MEMBER: All right. Okay.
MS CHEN:So given Mr Metcalfe has virtually lived in Australia for approximately 50 years, we contend that the Australian community expects that Mr Metcalfe would remain a permanent member of the community.
MEMBER:Is that solely on the basis you say that he’s lived here from a very young age? Because certainly there’s the paragraph that you mention about there being a higher level of tolerance for someone who’s lived in the community, Australian community, for most of their life. Are you saying that that of itself is sufficient that Mr Metcalfe ought to remain, even in the face of these other aspects that are part of the Direction?
MS CHEN:There are other aspects, and this is one of the considerations we would like the [T]ribunal to consider.
MEMBER: Yes.
MS CHEN:And also given the heavy costs incurred in removing Mr Metcalfe, we contend that it is not within the Australian community’s expectation that the government would incur so much costs in removing Mr Metcalfe, who effectively is an Australian citizen.
MEMBER:I don’t mean to go on about it, Ms Chen, but the costs of removing him, are they ‑ where does that come into that particular consideration?
MS CHEN: It’s not in the Direction.
MEMBER: It’s not in the Direction.
(Emphasis added).
Also at hearing, the Applicant appeared to contend in closing that the expectations of the Australian community could actually not weigh in favour of the Applicant:[243]
[243] Transcript, pp 105 [25]–[45] –106 [5]–[15].
MEMBER:Just where Mr Gerrard has put at paragraph 49, 'Whilst it must be true the community may have afforded the applicant a greater level of tolerance given his (indistinct) in this country, it is equally the case that the inherent nature of some conduct is so serious that even strong counter-(indistinct) considerations may be insufficient. Even though the non-citizen does not pose a measurable risk.' So the minister contends any involvement - any involvement - with child exploitation material very clearly falls within this category.
So just being clear that that's something that the applicant doesn't accept. They are saying that the [T]ribunal should look at it to say well, the tolerance that the [T]ribunal should have should exceed that [aspect of the] consideration about a person being involved with child exploitation material because he has been in the country for a very long time.
MS MANERA: Well, I think we are submitting that our submission should override the fact that some offences are considered so serious.
MEMBER:And is there a basis for that or any authority or it's just something that you would like the [T]ribunal to accept?
MS MANERA: Yes, that's right.
MEMBER: All right.
MS MANERA: But we do have to concede that according to the authorities this consideration will be weighed either neutral or negatively.
MEMBER:So then I will read the written submissions in that regard to that effect. I won't seek to amend particular lines or anything like that but I do understand what you're saying.
MS MANERA: All right, thank you.
(Emphasis added).
The Respondent, however, contends that the expectations of the Australian community weigh heavily against the Applicant.[244] The Respondent’s supporting submissions on this consideration address the inconsistency between the Applicant’s submissions at para 115 above and Direction No. 90 and the Full Court in FYBR:[245]
(a)Direction No. 90 specifies that people who have breached the Australian community’s trust, or where there is an unacceptable risk that they will breach that trust should expect to have their visas cancelled and forfeit the privilege of remaining in this country. This is effectively a deeming provision[246] and the Tribunal should find that the expectations of the Australian community lie with the Applicant’s visa remaining cancelled.[247]
(b)Referring to the stated principles in para 5.2 of Direction No. 90, in particular to the principles that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia. Whilst it may be true that the community may have afforded the Applicant a greater level of tolerance given his lengthy tenure in this country it is equally the case that the inherent nature of some conduct is so serious that even strong countervailing considerations may be insufficient even if the non-citizen does not pose a measurable risk of causing physical harm. Any involvement with child exploitation material very clearly falls within this category.[248]
[244] R2 [50].
[245] R2 [45]-[50]
[246] As noted by the Full Court in FYBR.
[247] R2 [46].
[248]R2 [49].
Due to the application of the “norm” in para 8.4(1) of Direction No. 90, [249] and the deeming operation of the corresponding direction as found by the Full Court in FYBR, this primary consideration weighs strongly against revocation of the Cancellation Decision. Plainly, the language of Direction No. 90 and the authorities set out above make it very clear that there is no scope to form an independent view of what the expectations of the Australian community are from case to case.
[249]As it is now referred to. See Wightman above at para [114].
Further, there is a clear presumption where non-citizen has been involved in crimes against children and/or crimes of a sexual nature, which clearly includes any involvement with child exploitation material, that is conduct so inherently serious that even strong countervailing considerations may be insufficient (even if the non-citizen does not pose a measurable risk of causing physical harm). In such cases, the norm is that their visa should remain cancelled.[250] As such, the Tribunal agrees with this presumption, notwithstanding the fact that the Applicant has been living in Australia for most of his life.[251]
[250]Direction No. 90, para 8.4(2)(c).
[251]Direction No.90, para 5.2(4).
Other considerations (para 9 of Direction No. 90)
Paragraph 9 of Direction No. 90 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
International non-refoulement obligations (para 9.1 of Direction No. 90)
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal.
Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2 of Direction No. 90)
Paragraph 9.2 of Direction No. 90 states:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
In relation to the extent of impediments if removed, the Applicant submitted that this factor weighs in favour of revocation of the Cancellation Decision because:
(a)He is advanced in age, is in fragile health[252] and is “extremely fearful” of his medical conditions.[253]
(b)He would be permanently separated from some of, if not possibly all of, his family.[254]
(c)He would face difficulty in establishing a support network in a foreign country where he does not know anyone.[255]
(d)While he may have access to health and welfare services, treatment and public assistance in the UK to the same extent as other UK citizens and to a standard comparable to that in Australia, the Applicant would be highly unlikely to seek medical treatment or counselling services in the UK, “increasing his risk of regression.”[256]
(e)Should he return to the UK, given his age and COPD and emphysema conditions, he would face a higher chance of becoming severely ill from COVID-19.[257] His lung disease prohibits him from wearing face masks, making it impractical to remove him by air travel.[258]
(f)His Wife would return to the UK with him if he were removed, although her thrombosis renders her unsuitable for long distance flights.[259] His Wife would be a source of social support for him, however she herself would have no social support outside of this.[260]
(g)Neither the Applicant nor his Wife have a pension or superannuation in the UK.[261]
[252]A1 [4.12.3].
[253]A1 [4.12.5].
[254]A1 [4.12.1]; Transcript, p 15 [20].
[255]A1 [4.12.4]; Transcript, p 17 [25]–[30].
[256]A1 [4.12.3], [4.12.6]; Transcript p 15 [15]; p 18 [10].
[257]A1 [4.12.8], [4.12.9]; Transcript p 17 [35]–[40].
[258]Transcript, p 17 [40].
[259]Transcript, p 17 [45].
[260]Transcript, p 18 [10].
[261]Transcript, p 18 [5].
The Respondent’s position with respect to the extent of impediments is that it accepts the Applicant is likely to experience some hardship as a consequence of returning to the UK (given his advancing age and health conditions), however, these impediments are not insurmountable.[262]
[262]R2 [53]; Transcript, p 112 [20].
The Respondent submitted that the UK is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security.[263] The Respondent emphasised that the Applicant would be entitled to, at the least, a part UK pension, which he is already currently receiving.[264]
[263]R2 [53]; Transcript, p 112 [30].
[264]R2 [20]–[25].
The Respondent noted to the Tribunal organisations such as Prisoners Abroad,[265] who provide limited assistance and support with resettlement in the UK.[266] The Respondent also noted that the Applicant has a house he could sell and access to his Wife’s superannuation, putting him in a far better position than most.[267]
[265]
[266]R2 [53].
[267]Transcript, p 112 [30].
In response to the Applicant’s submissions regarding the impact of COVID-19,[268] the Respondent submitted at hearing:[269]
It’s very difficult to predict anything in those situations. The longer the period the applicant remains here, the more chance he is of being vaccinated. Of course there’s a very strong vaccination program in the United Kingdom. The costs of removing an applicant would be… an irrelevant consideration. Obviously there are difficulties in removing anyone at this point in time. It would not be impermissible for this [T]ribunal to have regard to the fact that that could extend or prolong an applicant’s detention if affirming the decision. Not in the sense of indefinite detention that you might get in other non-refoulement cases. That would be permissible to take into account in that respect, but it’s clearly not one that would probably factor into the final analysis, in terms of being a significant matter.
[268]See [125(e)] above.
[269]Transcript, p 26 [20]–[30].
Having considered the available evidence and the parties’ submissions, the Tribunal considers that the Applicant would likely face emotional hardship at the prospect of returning to a country where none of his family members, other than his brother (from whom he is estranged), continue to reside.
The Tribunal has considered the Applicant’s advancing age, his current ailments[270] and matters raised by the parties regarding COVID-19, in the context of the practical difficulties involved with relocating the Applicant and the need for health care once he has resettled. However, the Applicant would not be without means or social support from his Wife and Prisoners Abroad, should he choose to seek such support. Further, he would be returning to a country where the language, culture, health care, education, welfare and housing support is comparable to that in Australia.[271]
[270]Direction No. 90, Para 9.2(1)(a).
[271]Direction No. 90, para 9.2(1)(b); 9.2(1)(c). This matter being one of common knowledge is a sufficient basis for this finding (Webb v Minister for Home Affairs [2020] FCA 831 at [100] per Anastassiou J).
The Tribunal considers that any difficulties the Applicant would face in re-establishing himself in the UK would be temporary such that this factor weighs only slightly in favour of revocation.
Impact on victims (para 9.3 of Direction No. 90)
Neither party made any submission on this consideration and the Tribunal is satisfied that it is not a relevant consideration in this matter.
Links to the Australian community (para 9.4 of Direction No. 90)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
Paragraph 9.4.1 of Direction No. 90 states:
(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.
The Applicant referred to an extensive body of lay evidence regarding his family ties and community involvement, in support of his contention that the strength, nature and duration of ties consideration should weigh in favour of revoking the Cancellation Decision.[272]
This evidence focuses on his relationships with various family members including his Wife, adult children and his contribution to local badminton clubs over the years.
[272]Referred to in A1 [4.13.3] to [4.3.13] (inclusive).
The Tribunal does not seek to summarise this evidence here and notes it has considered in its entirety the various letters, statements and statutory declarations from the Applicant and his family members in the context of this consideration.[273] In particular:
(a)His support for local badminton and other community events such as fetes and fairs.
(b)His deep love and care for his beloved Wife and vice versa.
(c)The fact his Wife would return with him if he were removed from Australia and the hardship this would cause for their daughter and grandchildren.
[273]Referred to in A1 attachments A2–3, A6–11 (inclusive); R1, G26–29 (for evidence of the Applicant’s contribution to his badminton club).
The Applicant’s submissions on the strength, nature and duration of the Applicant’s ties to Australia are:
(a)The Applicant has spent a significant amount of time in Australia.[274]
(b)His Wife, children and grandchildren would be adversely impacted emotionally, practically and financially if he were to be removed.[275]
(c)If the Applicant were removed, his children and grandchildren would be unable to visit for financial reasons,[276] which would have a devastating effect on all of them.[277]
[274]Transcript, p 18 [20].
[275]A1 [4.13.9]–[4.13.11].
[276]A1 [4.13.12].
[277]A1 [4.13.13].
As to the Applicant’s ties to Australia, the Respondent submitted that it accepts the Applicant has spent a significant amount of time residing in Australia[278] and that his Wife, children and other family members reside here.[279] The Respondent concedes that, in this sense, the Applicant has reasonably strong ties to Australia,[280] albeit not to the extent that they should outweigh the protections and expectations of the community in the final weighing exercise.[281]
[278]R2 [55]; Transcript, p 20 [25]; p 112 [35].
[279]R2 [55]; Transcript, p 112 [35].
[280]Transcript, p 112 [35].
[281]R2 [55].
At hearing, the Respondent added the caveat that, to the extent that it is a curiosity, rather than a relevant consideration per se, the Applicant has lived in Australia for 50 years without feeling a strong enough connection to become an Australian citizen.[282]
[282]Transcript, p 112 [40]–[45].
The Tribunal has considered the evidence and the parties’ related submissions in the context of para 9.4.1(2) of Direction No. 90 and considers it uncontroversial that the Applicant’s ties to Australia, particularly with familial ties, are reasonably strong and have endured over the lengthy time he has resided in Australia. As such, the Tribunal finds that the present consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
Neither party made any submission on this consideration and the Tribunal is satisfied that it is not a relevant consideration in this matter.
CONCLUSION - THE WEIGHING EXERCISE
As to how to apply the primary and other considerations in Direction No. 90, the Tribunal in guided by Deputy President Boyle in Wightman:
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted).
The Tribunal follows the approach directed by the above cases.
As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 90), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [65]-[97] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(b)the “very serious” nature of the harm and the low, yet in the present circumstances, entirely unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs very strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 90), family violence is not applicable to this application.
With respect to the third primary consideration, the best interests of minor children in Australia (para 8.3 of Direction No. 90), the Tribunal has found that for the reasons set out in paras [99]-[110] above, the best interests of the Applicant’s minor grandchildren weigh moderately in favour of revocation.
The fourth primary consideration, the expectations of the Australian community (para 8.4 of Direction No. 90), as it must and as is the “norm,” weighs strongly against revocation of the Cancellation Decision. For the reasons set out at paras [111]-[120] above, significant weight should be given to this primary consideration.
In relation to the “other considerations” identified in para 9 of Direction No. 90:
(a)International non-refoulement obligations are not relevant in this matter (para 9.1 of Direction No. 90).
(b)The extent of impediments if the Applicant were removed from Australia is a factor weighing slightly in favour of revocation (see paras [124]-[132] above) (para 9.2 of Direction No. 90).
(c)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 90).
(d)The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i)the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh moderately in favour of revocation of the Cancellation Decision (see paras [135]-[141]); and
(ii)the impact on Australian business interests (para 9.4.2 of Direction No. 90), which has no relevance to the present matter,
indicate that this consideration overall weighs moderately in favour of the revocation of the Cancellation Decision.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, greater than those weighing against revocation.
There is factual material, which is moderately in the Applicant’s favour, in relation to interests of his minor grandchildren, the effect on his Wife, children and grandchildren should he be deported and his reasonably strong familial ties to Australia. The Tribunal also recognises the initial difficulties the Applicant would face in re-establishing himself in the UK; these impediments it considers weigh slightly in favour of revocation given that the Applicant has could overcome these with his available means, the support of his Wife and the available support services.
Despite the considerations weighing in the Applicant’s favour, and the consequences of the Applicant being removed from Australia and returned to the UK, the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a)the entirely unacceptable risk to the Australian community; and
(b)the grave seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way;
the protection of the Australian community from future harm (from either the Applicant’s future offending, or other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community, outweighs any considerations weighing in the Applicant’s favour.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 5 July 2021, not to revoke the mandatory cancellation of the Applicant’s class BB–Subclass 155 Resident Return Visa pursuant to 501CA(4) of the Act is affirmed.
I certify that the preceding 154 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
......[Sgd]..................................................................
Associate
Dated: 28 September 2021
Date of hearing: 07 September 2021 Solicitors for the Applicant: Ms B Chen, Tang Law Solicitors for the Respondent: Mr A Gerrard, Australian Government Solicitor
The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.
See s 501CA(4)(a) of the Migration Act and [10] above.
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