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

NTCV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4092 (10 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6502
Re:NTCV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of decision: 10 November 2023
Date of reasons: 8 December 2023
Place:Brisbane

On 10 November 2023, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal set aside the decision dated 4 September 2023 made by the Respondent's delegate and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.
...................................[SGD].....................................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – revocation of mandatory cancellation of a Class Subclass 155 Resident Return visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – intentionally sexually touching two children between 10 and 16 years old – no other offending history – low risk of re-offending – over 50 years of positive contribution to Australian community – elderly and in poor health – disabled adult child – decision under review set-aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (6 May 2015)
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
8 December 2023

The Applicant is a 77 year old citizen of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) who came to Australia in 1972 when he was 26 years old. The most recent visa held by him was a Class Subclass 155 Resident Return visa (“visa”). His visa was recently cancelled due to his criminal offending, and he asked the Tribunal to revoke that cancellation.
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister 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 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.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In August 2022, the Applicant was sentenced to 12 months imprisonment with a non-parole period of six months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[1] Further, that sentence was imposed following a conviction for a sexually based offence involving a child which meant the Applicant also failed the character test because of paragraph 501(6)(e) of the Act.
[1] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
In February 2023, the Applicant was sentenced to imprisonment for six months for separate offending. In March 2023, while he was serving that sentence, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa because:
· he did not pass the character test due to having a substantial criminal record (due to the earlier sentence); and
· he was serving a full-time custodial sentence.
The Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
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.
In September 2022 the Respondent decided not to revoke the cancellation. That day, the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act within the permitted timeframe and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[2]
[2] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 8 and 9 November 2023. The Applicant and Dr Jacquie Yoxall gave evidence via video link. The Applicant’s daughter gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Dr Yoxall’s report, dated 6 November 2023, was provided to the Respondent on that date. Relying on Uelese v Minister for Immigration and Border Protection[3], and without objection from the Respondent, Dr Yoxall’s report was admitted into evidence on 9 November 2023 and Dr Yoxall gave oral evidence that day. I am grateful for the Respondent’s co-operation on this.
[3] [2015] HCA 15 (6 May 2015).
On 10 November 2023, I issued my decision in this matter with my reasons to be provided in writing at a later date. While it is normally desirable to issue reasons with a decision, I thought that in this case is was preferable to issue my decision as soon as I had made it and not wait until I was in a position to provide my reasons in writing. That is because the Applicant is in very poor health which he has found more difficult to manage in custody, and he has a disabled son for whom he normally fulfils the role of carer, so the sooner he could return home, the better. I apologise to the Respondent for the time it has taken to issue these reasons.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·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.
·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.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·Australia generally may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraphs 8 and 9 of the Direction sets out Primary Considerations and Other Considerations that the Tribunal must take into account. It was agreed between the parties, and the Tribunal accepts, that the mandatory considerations that are relevant in this matter are:
Primary Considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence
(3)strength, nature and duration of ties to Australia;
(4)…
(5)expectations of the Australian community.
Other Considerations
b)extent of impediments if removed;
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
FACTS
The Applicant is an only child who was born in Scotland. His father died when he was a child. He married an Australian woman and they both moved to Australia when he was 26 years old. His mother died when he was 27 years old. He and his wife had three children. When his wife was in her forties and the children were still young, she passed away from cancer. That was 35 years ago. Around 30 years ago the Applicant formed a relationship with Mrs A.
The Applicant worked in Scotland from his teens and he always worked in Australia, never relying on social welfare, until after he retired. He worked in the steel works and at an abattoir. He owned and operated a grocery store, he worked as a farm hand, and he was a handyman at a hotel.
The Applicant’s eldest son, Mr G, has had a cognitive disability since childhood. Before the Applicant’s wife died, he promised her he would aways look after Mr G. Mr G always lived with the Applicant, until the Applicant’s incarceration. The Applicant and Mrs A established a business in the rural district where they lived. They operated it together until, due to his poor health, the Applicant had to retire in 2012 at the age of 65. He employed both his sons in the business with Mr G being supervised.
A few years after he retired, the Applicant did some volunteer work at a local museum, setting up displays, collecting entrance fees and showing people around. During his time in Australia, he did other voluntary work, including planting over 200 trees in his local community. After retiring he did not access the age pension until he had exhausted the proceeds of the sale of his business.
Through Mrs A, the Applicant had some step-grandchildren. He had a close relationship with the step-granddaughter who was the victim of his first offence (“Victim 1”). He considered them to be “mates” and he denies ever having had any sexual attraction to her.
Around the time of the offending, he had experienced some health problems and a cancer scare that required extensive testing. Until cancer was ruled out, the Applicant thought he was going to die and it brought up emotions and grief that he had “blocked away”. He was unable to stop thinking about the deaths of his parents and his wife. He became overwhelmed with sadness and he felt extremely lonely. This was not put forward as an excuse for his offending, however it is the only thing he can think of that might go some way to explain it. As unbelievable an explanation as it may seem at first blush, Dr Yoxall thought it most likely did contribute to the offending, and I will come to her evidence about that later in these reasons.
Victim 1 was 10 years old when the first offence occurred. On a weekend between July 2021 and January 2022, she and her two younger brothers had a sleepover at the home the Applicant shared with Mrs A. The children were watching television in the lounge room. Mrs A left to go to the chemist and Victim 1’s brothers went to play in another room. The Applicant entered the lounge room. He sat next to Victim 1, lent in towards her, touched and rubbed the top of her legs above her knees, her stomach and her chest using his hand for around a minute. She could not recall if he touched her under or over her clothing. He stopped when one of her brothers entered the room.
The Applicant now claims that he felt terrible after what he had done. Yet, he did something almost identical some months later. On an afternoon in March 2022, the Applicant collected Victim 1 from basketball practice and drove her to his home. She sat on the lounge watching TV. The Applicant sat next to her, lent in, and touched and rubbed her legs above her knees and on her stomach under and over her clothing, and her chest over her clothing. He asked her “Do you like it?” and she said she did not. He then stopped.
Later in March 2022, Victim 1 was at a friend's sleep over birthday party. There, she told her friend that the Applicant had tried to have sex with her and that as a result she was having nightmares. This was reported to the police and in early April 2022, the Victim 1 was interviewed and disclosed both episodes of offending.
On 8 April 2022, the Applicant was arrested and interviewed but he did not make any admissions. (He subsequently pleaded guilty and does not dispute Victim 1’s account)
The Applicant was granted bail which he breached by moving from his home to another house he owned around 20km away. He claimed he was not told what his bail conditions were and that he did not realise he was not allowed to move to his other house. The day after being granted bail the Applicant moved to the other house and Mr G also moved there. The Applicant later pleaded guilty to breaching bail.
In relation to Victim 2, there is a document entitled Agreed Facts on Sentence. It was neither sighted nor signed by the Applicant, but it appears to have been accepted by the court when he pleaded guilty to an offence against Victim 2. This is one of the offences that triggered the mandatory cancellation of the visa, which had the ultimate effect of enlivening the Tribunal’s jurisdiction in this matter, and as such I must accept the court’s findings about the Applicant’s guilt and the facts giving rise to the finding of guilt (the facts of the offending).[4]
[4] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
According to the Agreed Facts on Sentence, on 21 April 2022[5], Victim 2 contacted the “Kids Hotline” and also spoke with her nan, aunty, and counsellor. The next day, she was interviewed by the police. She lived in the same street as the Applicant. She told the police that in October 2021, the Applicant waved to her and said hello. He invited her into his house to see his new smart phone and, once inside, he showed it to her. He then asked Victim 2 for a hug to which she agreed, believing he was upset. While hugging her, the Applicant ran his hands down her back outside her clothing to just above her hips. He then looked at her and kissed her forehead and the left side of her neck moving downwards. She felt her phone vibrate in her hand and told the Applicant that it was her nan telling her to come home. He stopped hugging and kissing her, and she left. The Applicant was subsequently interviewed by the police. He denied the allegations saying, “No, it didn’t happen. She just came in, patted the dogs, and I cuddled her. That was it”.[6]
[5] around two weeks after the Applicant was charged with the offences against Victim 1.
[6] Transcript, page 23, line 27 to 28.
The Applicant has consistently denied this offending. In a written statement, he said on the day in question, he was sitting at the front of his house trying to get his new phone to work. Victim 2 rode along on her pushbike and started talking to him. She asked if she could pat his dogs as she had done many times before. She asked him for a hug, which she had not done before. He gave her a hug. She said she had to go because her friend only had $5 left on her phone, and she went away. The Applicant gave a nearly identical account to Dr Yoxall except he told her he had a new phone because the police has seized his phone, and that he told Victim 2 he was trying to work his new phone. She had gone inside his house to pat his dogs and when he came out, she asked for a hug.
In the hearing he was cross examined about the incident. He denied having invited Victim 2 to see his new phone or having shown it to her. He denied having been upset. He denied having run his hand down her back, claiming that he had his phone in his hand the entire time she was there. He denied having kissed her. He said she told him her father was on the phone, she only had $5 in credit and she had to go home and ring her before her power ran out.
The Applicant said when he was in prison for the offences against Victim 1, he decided to plead guilty to an offence against Victim 2 because Mrs A told him that the witnesses his lawyer was contacting did not want to give evidence and nor did Victim 2. Also the prosecution offered to drop one charge if he pleaded guilty to the other, although he did not know what the other charge was. He told Dr Yoxall, “I was already in trouble… and if I plead guilty then no one would have to go to court and give evidence which could be upsetting for them, particularly the girl”. He told the Tribunal:
“Her mother is a police officer, and she was in court the first time I went to court, and my solicitor told me that she probably went home and told her daughter. And then I got charged with this. And we tried to get witnesses, but they wouldn’t go to court, so I pleaded guilty for that, sir, because I wanted it finished with, I was so angry. And I don’t get angry very often, sir…her aunty, I think – who looks after her, she was a police woman. And the people who were looking after her, we asked them to come into court as witnesses, and they refused. And then she didn’t want to go to court.”
This is partially corroborated by a statement from Mrs A in which she said:
“… I got summoned to appear in court, and so did the girl's grandmother who is a local policewoman. The girl had asked my neighbour to come as well. I told [the Applicant] that I was summoned to court and that the girl was really stressed out about it. The lawyer urged him to plead guilty, so he did. He didn’t want me to have to go to court, and he didn’t want to cause any extra pain to the girl because I had told him that the girl was really, really distressed…The lawyer said that he wouldn’t get extra time in jail as it was a lesser offence. He advised [the Applicant] that if it was the only offence, he wouldn't get any jail time”.
The Respondent submitted that it was concerning that the Applicant continued to deny this offending. I respectfully agree, however my concern is mitigated by the degree of confusion, and the Applicant’s apparently genuine confusion, surrounding this offending.
First, his recollection of the reasons Victim 2 gave for having to go home shifted in some details and did not make much sense. Second, he referred to the police officer as Victim 2’s mother and later her aunt, while Mrs A referred to her being Victim 2’s grandmother.

However, the biggest anomaly concerned the timing of the incident. One of the few details that is common to Victim 2’s account and the Applicant’s account is that he had a new phone. The Applicant was adamant that he had bought a new phone because the police had seized his phone when he was arrested for the offences against Victim 1. That happened in April 2022. Yet, Victim 2 claimed the Applicant offended against her in October 2021. The Applicant recalled that when the allegations concerning Victim 2 were put to him by the police, he thought they were talking about something that was maybe a month or so in the past. Nor was it his understanding that he was pleading guilty to something that happened in October 2021. He was sure there was only one incident that the police could have been referring to, and Victim 2 had only been inside his home once to his knowledge and she only ever asked him for a hug once.
However, the Applicant thought he got a new phone a week or a few weeks after his was seized, and he also recalled having moved to a different house immediately after getting bail. The timeline he gave strongly suggests he had already moved away from the house where the incident occurred by the time he got his new phone, but that is not how he recalled it. After a great deal of questioning, and an examination of the Applicant’s phone which did not clarify matters, the Applicant changed his mind and said the incident with Victim 2 occurred before he was charged with the offences against Victim 1. However, he was unable to reconcile that with the evidence that he had a new phone when the incident involving Victim 2 occurred.
Further, the Applicant did not know what the second charge relating to Victim 2 was and his evidence about the witnesses with respect to Victim 2 was not consistent with Mrs A’s evidence. He seemed to think his lawyer asked witnesses to give evidence, whereas Mrs A referred to the victim wanting their neighbour to give evidence.
I asked the Applicant if he had been taking any medication around that time that could have affected his memory. He said he was, and that his lawyer had asked him if he had dementia. He was offended by the question and he told Mrs A. She said words to the effect “You’ve been on this drug for about a year and half now, your head’s changed”. He stopped taking that medication but he cannot recall its name. The Applicant told Dr Yoxall that Mrs A had noticed changes in his mood, behaviour and overall demeanour.
In August 2022, a structured case note was prepared by a community corrections psychologist for the purpose of a sentencing assessment report. The case note recorded that at the time of the offences, the Applicant’s life was difficult, he was physically unwell, in pain and mentally low. He had expressed concern for Victim 1’s wellbeing and had expressed regret regarding the offending. According to the Static-99R actuarial risk assessment tool, he was in the very low category of further sex offences relative to other male sexual offenders. I note that the Static-99R considers historical factors and does not account for things like remorse or parole supervision, and the case note recorded that the risk assessment was not comprehensive. I would add that these tools can only estimate group tendencies, not predict a specific individual’s risk of re-offending. For example, if the Applicant was in the very low risk category after three offences, logically he would have been in the very low risk category after the first offence, yet he soon re-offended.
A pre-sentence report noted that throughout the interview the Applicant appeared tearful and verbalised that since the offence he sometimes wanted to die. He expressed willingness to engage in any interventions ordered by the court or proposed by Community Corrections. The Level of Service Inventory - Revised (“LSI-R”) risk assessment tool indicated that he was in the Medium/Low category in terms of risk of reoffending. The LSI-R measures the risk of general re-offending. This risk assessment potentially assumed that the Applicant would be subject to strict parole supervision.
In August 2022, the Applicant was convicted of two offences of intentionally sexually touch child aged between 10 and 16 years in relation to Victim 1, and sentenced to twelve months imprisonment and nine months imprisonment with a non-parole period of six months.
Victim 1 did not make a victim impact statement. The sentencing Magistrate described the offending as “really serious” and pointed out that the first offence only stopped when Victim 1’s brother entered the room. Her Honour observed that the Applicant had taken advantage of the position of trust he had been in. She referred to the Applicant asking “Do you like it?” which she said raised all sorts of questions in relation to his state of mind, i.e. that he thought it could have been appropriate. Her Honour pointed out that there was a period in between the offences when the Applicant could have come to realise how wrong his conduct was and refrain from doing it again, but he did do it again, so there was a need for a sentence that would achieve specific deterrence.
In January 2023, an updated pre-sentencing report was prepared. It noted that the Applicant denied the offending against Victim 2 and only pleaded guilty to minimise the impact of further court proceedings on his family and the victim. He was again placed in the very low risk category according to the Static 99-R.
In February 2023, the Applicant was sentenced for an offence against Victim 2. She did not make a victim impact statement. The sentencing Magistrate noted that the Applicant was “not actively admitting the offending”. His Honour found that the Applicant asked Victim 2 into the house knowing there was no other adult there and took advantage of that circumstance. She was isolated in a strange environment, and it would have been frightening for her when his actions crossed the line. The Applicant was sentenced to six months in prison, effectively extending his period of actual imprisonment by two months.
The Applicant’s relationship with Mrs A has ended. She cannot understand why he did it but she accepts that he did and that they can never be in a relationship. She does not think there is any chance of him offending again, and she maintains regular contact with him because she thinks he needs support, but her two daughters are unhappy about this. The Applicant does not have any contact with anyone in Mrs A’s family.
The Applicant’s younger son, “Mr S”, is single with one son who is 16 years old “Child M”. Mr S lives with Mr G, and Child M visits on weekends. The Applicant’s daughter, “Ms H”, used to have a close relationship with the Applicant. Since learning about the offending, she has barely spoken with the Applicant, but she did give evidence in the hearing. She said he had never done anything inappropriate with her children (a boy and a girl who are now teenagers) or Mr S’s child. She and her children live two hours away. She indicated that it was unlikely that her children would have any contact with the Applicant, but they could make that decision for themselves when they turn 18. She does not think the Applicant would ever re-offend.
Mr G suffers from an intellectual disability, learning disorder, severe anxiety and depression and sleep apnoea. Ms H said Mr G’s anxiety and depression can be quite debilitating. According to the Applicant, Mr G does not cope well with change and gets frightened easily. He recalled an occasion when they went to Sydney airport and Mr G collapsed on the floor and would not move. Mr G finds new things difficult, for example he bought new headphones but did not know how to use them. He cannot prepare food, so the family arranges for pre-made meals to be delivered weekly.
The Applicant was Mr G’s primary carer until his incarceration, driving him around, helping him in everyday tasks and providing emotional support. Mr G is a NDIS participant but he relies substantially on support from Mr S and to some extent Ms H. Mr S does all domestic duties except for Mr G’s laundry and the vacuuming of Mr G’s own space. Mr G works in supported employment. He relies on support workers to take him to and from work. Mr S cannot take him because his employment is in the opposite direction from their home. There is inadequate public transport in the rural district where they live. Mr G’s anxiety and depression impact on his ability to trust people he does not know which, in turn, impacts on his ability to engage in various life tasks and activities with support workers. If local support workers are not available, then Mr G has to forego a planned activity. Sometimes a taxi, rather than support worker, has come to take Mr G to work which can be challenging for Mr G. Ms H explained that Mr G he “can’t just get in any car, he has to get in the car that he’s comfortable with.”
The Applicant has a multiplicity of medical conditions. He suffers from rheumatoid arthritis, Type II Diabetes Mellitus, hypertension, chronic obstructive airways disease, renal problems as a result of heart medication he has required over many years, and ongoing problems with his feet (peripheral neuropathy). He has had his gall bladder removed. In May 2022 he suffered a stroke which caused a hearing impairment in one ear and dysphagia (difficulty in swallowing food or liquid which can cause a choking risk).
In the 1990s the Applicant had two artificial valves implanted in his heart. A third needs to be replaced but his doctors do not think he would survive the operation. He has a blood disorder whereby when blood passes through one of the valves in his heart, the platelets get damaged. He regularly sees a haematologist to manage this condition. He was recently assessed as anaemic which the specialist thought would further exacerbate his heart condition. His heart is working only at 30% capacity and it is pressing against his oesophagus. Ms H attested to the impact of his heart condition on the Applicant’s day-to-day life. He cannot walk more than a few steps due to becoming breathless. In prison he fell four times and was given a waker which he needs to walk any distance. He has experienced other difficulties in prison such as being taken off his pain medication, which resulted in constant aching due to his rheumatoid arthritis, and not being given the right food to manage his diabetes.
The Applicant currently suffers from severe depression which was largely brought on by the offending and its consequences. He has expressed a great deal of remorse, particularly for the offending against Victim 1, for example he said:
“I've been trying to figure out why this happened and the only thing I can come up with is that I was under a lot of strain from my health, and that my mental health wasn't good either…
Whenever I think about this, I get really upset. If I hadn’t had done it, I wouldn’t be in detention now and I wouldn’t have gone to jail, and then she wouldn’t have had to experience the awful things I did.
I’ve asked [Victim 1’s] grandmother if she is alright, and she’s told me that she’s alright. But I know that she will suffer from my actions for the rest of her life and it will take her a long time until she is truly alright. I’m sorry that I did this to her and I wish I could take it all back…
I feel deep remorse and shame for my offending. I feel terrible for what I did. Whenever I think about the things that I did, it causes me pain. When I went to jail, they put me on suicide watch because they were scared I was going to hurt myself or kill myself. I have done wrong. I understand that my wrongdoing has had extremely negative impacts on the victims, and that they will struggle for the rest of their lives because of what I did. I feel very ashamed, and it constantly causes me mental anguish…When I get upset, I seek professional help. Talking to a psychologist or the mental health nurse does help me but part of the problem I have is that I don’t understand why I did this. The fact that I don’t know why I did such awful things has caused me so much pain and confusion.”[7]
[7] Exhibit G1, G3, page 101.
However, some of his behaviour suggests that he does not have much insight into the impact of his offending on the victims. For example, he maintains contact with Victim 1’s grandmother. When I asked if he thought this might upset Victim 1, he said he did not know. Nor had he sought advice about it from an expert. While it is understandable that the Applicant would want the support of his former long-term partner, it is surprising that he has not thought about the possible ramifications for Victim 1 and her family. On the other hand, he showed some understanding of the impact of his offending when he was interviewed by Dr Yoxall. In relation to Victim 1, he acknowledged that he was in a position of trust and that his breach of trust, and violation of his step granddaughter’s rights may lead her to have difficulty trusting others and forming healthy relationships and could cause a range of mental health problems. He identified that he breached his obligation to keep both children safe, and he said he did not wish Victim 2 to feel threatened or violated.
Since his incarceration, the Applicant has sought psychological help. His low-risk classification meant he did not qualify for a sex offender program, but he has sought counselling about his offending and other things. He said that in prison he was told that the problems he caused would last “for a while” and that he is so sorry. The Applicant sees a psychologist and a mental health nurse regularly in detention. In these sessions he has learned about depression and mental health and illness.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to certain matters. One is that sexual crimes against children are viewed very seriously. Another is that offences committed against vulnerable members of the community are viewed seriously. I must also have regard to the frequency of the offending, whether there is a trend of increasing seriousness and any cumulative effect of repeated offending, and I can have regard to any other relevant matter. (The other mandatory factors mentioned in this part of the Direction do not apply to this matter)
The Applicant’s criminal offending is, by its nature, very serious. Its repetition adds to the seriousness, and the cumulative effect of the repeated offending against Victim 1 was that she thought the Applicant was trying to have sex with her which frightened her to the extent of giving her nightmares. In fairness to the Applicant, I acknowledge that the actual offences, while abhorrent in their nature, were relatively mild as they did not involve elements like coercion, removal of clothing, penetration or physical injury.
If one looks at the period within which the offences were committed, being July 2021 to March 2022, the offending was reasonably frequent, however outside that period there was no offending. I do not think there was a trend of increasing seriousness.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
I must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and
(b)the likelihood that the Applicant will engaging in further criminal or other serious conduct, taking into account available information and evidence on that risk; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
The harm from further sexual touching of children includes immediate trauma and long-term psychological and emotional issues. Both victims in this case eventually felt confident to disclose what happened to them, they were believed, and they knew that their community condemned (through the justice system) what was done to them. Some child victims suffer alone, without support, validation or healing.
It was not in dispute that the risk to the community posed by the Applicant is confined to a risk of sexual offending against children, and I accept that.
The Applicant was assessed by Community Corrections as a very low risk of further sexual re-offending (and a medium/low risk of general re-offending). None of these risk assessments included details of what was taken into account and they were not comprehensive.
The Applicant did not commit any further sex offences while on bail. He claims he will never offend again. When asked why, he first said “I don’t want to put my family or friends through anything like this again”. After being asked “What about putting a victim through something like that again?” he said “No, I wouldn’t do it again, no chance.” He later said “Because it’s upset [Victim 1], I’ve lost a good friend [meaning Victim 1], and it’s upset my family, and I’m upset too. So no chance it happening again, no chance.”
Mr S provided a written statement in which he said the Applicant had told him many times that he does not know why he offended, and that he is sorry for doing it and for the impact on his family and the victim. Mr S thinks he is very ashamed, and that it has played on his mind so much that his mental health has been severely affected. Ms H also thinks the Applicant is remorseful for the impact of his offending on the victims and for him and his family.
If the Applicant gets his visa back, he plans to live with Mr G and resume the role of carer for him in terms of supervising and assisting with day-to-day planning, and tasks such as cooking, caring for and guiding him. He expressed to Dr Yoxall that he is distraught at the prospect of not being able to look after Mr G if he is deported and that his greatest worry is the impact of such an outcome on his family, particularly Mr G. Dr Yoxall noted that he openly wept when he discussed his fears of what would become of Mr G if he were to be deported or die.
If the Applicant is allowed to return to the Australian community, he does not intend to be around minors. He indicated that his poor health limits his mobility. He does not think he has long to live and, in his words, he just wants to “live the next year or two, if I have that long, with my sons”. When Child M visits, the Applicant will remove himself by going to his room. The Applicant said that if he ever found himself in an emotional state like he was in when he offended, he would seek help. He plans to see a psychologist anyway if he gets his visa back.
Dr Jacqui Yoxall, who is a clinical and forensic psychologist with over 20 years of relevant professional experience, completed a comprehensive risk assessment immediately before the hearing, and she gave evidence about it in the hearing.

In terms of the Applicant’s history, he told her he had consumed alcohol only minimally throughout most of his life, never used illicit drugs, never been sexually abused or had any sexual interest in children or young people, never used pornography and never had any previous problems with impulse control in relation to sexual behaviour. He told her that when he was first incarcerated he was put under observation for suicide risk as he felt so much shame and guilt, he wanted to die. He said that he still has thoughts of suicide, but they are less frequent and he does not have any fixed plan. He knows Mr G would not cope if he committed suicide. He said he felt overwhelmed by guilt and in “constant mental anguish”.
Dr Yoxall thought the Applicant’s remorse for his offending was genuine, that he demonstrated empathy for both victims, and that he had engaged in substantial self-reflection to try to understand his offending.
Based on the information the Applicant provided to Dr Yoxall, she was under the impression that he committed the offence against Victim 2 after he was arrested for the offences against Victim 1. She therefore based her assessment on him having re-offended after he was charged and placed on bail. She administered the LSI-R which indicated a low risk of general re-offending. To measure the risk of further sex offending, Dr Yoxall used the SORAG and the FDR-20, stating that it is the gold standard to use both of these together. She concluded that there is a low risk of further sex offending.
Dr Yoxall gave extensive evidence in the hearing, explaining risk factors and giving context to her assessment. She explained that paedophilia is an identified sexual deviance wherein the individual prefers to engage with pre-pubescent children instead of anyone else. She did not think the Applicant was a paedophile. In fact, she said sexual offending against children can happen for many reasons, and unless there is fundamental paedophilia, there is very rarely only one reason for it. She pointed to the offending being an extremely late-in-life event for the Applicant, and to the absence of any indication from his history of a propensity or vulnerability for this sort of offending.
While she could not be sure, Dr Yoxall thought the offending was a maladaptive attempt by the Applicant to obtain emotional connection, not sexual gratification, during a period of substantial personal distress. Dr Yoxall did not think the Applicant had the capacity to seek out and understand what he was looking for in terms of an emotional connection. He was feeling lonely, isolated and disconnected, and experiencing trauma with the memories of the deaths of his parents and his wife. His wife’s death was very raw for him “as though it happened yesterday”. It appears that he had a high degree of depressive symptomatology. He was very unwell psychologically, and he was not coping with a range of very complicated emotions. Dr Yoxall explained that sometimes people over-identify with children when they feel a disconnection with others in their life. It is very complicated and “we do not fully understand it”. The desire was emotional connection but the maladaptive dysfunctional antisocial behaviour was physical touch and offending.
I note at this point that the Applicant’s evidence is that he developed impotency as a result of his cardiac condition around 25 years ago. Since then, he had little interest in sex, but he and Mrs A enjoyed physical intimacy intermittently such as cuddles and hand holding. Further, there is no evidence at all of any prior offending. That may not mean a great deal given child abuse often goes undetected and unreported. However, the Applicant lived in a reasonably small rural community for many years and he would have had access to children thought family, employment and volunteer work. No-one else made allegations against the Applicant even after he was charged with the offences against Victim 1 and Victim 2. The police seized the Applicant’s mobile phone, presumably for examination, and no additional charges resulted from that.
Dr Yoxall was asked whether the Applicant’s inability to explain what motivated or caused his offending reflected a lack of insight. She said it potentially did but with respect to sexual offending against children, there are myriad reasons for it.
In terms of risk of re-offending, Dr Yoxall indicated that, statistically, the later in life that sex offending against children starts, the lower the recidivism rates. The highest likelihood of recidivism applies to a person who starts young, particularly under the age of 18, and commits offences against unrelated males. The lowest risk of re-offending applies to those who start offending much later in life and the offences are against family members of the opposite gender. That describes the Applicant’s offending against Victim 1. Dr Yoxall indicated that the offending against Victim 2, an unrelated female, increased the risk of recidivism.
According to Dr Yoxall, developing empathy for a victim appears to be a contributing factor to reduced risk of re-offending, and she thought the Applicant had empathy for Victim 1 and some empathy for Victim 2 although it was limited by his belief that he did not offend against her.
Dr Yoxall thought the Applicant had undiagnosed depression at the time of the offending and that he now suffers from major depressive disorder. In her opinion, he needs quality psychological counselling for that. She also recommended that he see a geriatrician to help manage his health. Dr Yoxall did not have any concerns in relation to Child M spending time at the home where the Applicant intends to live.
Due to this matter being expedited, the Applicant’s lawyer did not request an adjournment for the purpose of obtaining more evidence about the Applicant’s cognitive function at the time of the offending and now. The Tribunal can only consider the evidence before it. In addition to the Applicant’s evidence that his lawyer and Mrs A thought there was a problem, Ms H gave evidence that she thought there may have been something wrong. She said she was in frequent contact with the Applicant before the charges and had only spoken briefly with him twice since then. When asked if she had ever been concerned that he may have dementia or some other cognitive impairment, she said “It’s not surprising…I have discussed it with my brother and a close friend…some of the things that he’s said, conversations, remembering stuff…things just aren’t quite right or aligned with what’s happened”.
Dr Yoxall spent some of the early years of her career working in dementia assessment. She opined that dementia could be a potential contributor to the Applicant’s out of character offending. She said dementia is a broad umbrella term given to a range of disorders and diseases that progress in terms of cognitive decline. There are different forms of dementia and there is literature around inappropriate sexual behaviours. She said “Dementia care wards and units deal with it all the time, as do family members who are caring for loved ones”. The behaviour is a consequence of the dementia rather than a deliberate decision to engage in the behaviour. Dementia only gets worse. It is a “one way street”.
The Respondent contended that if dementia played a role in the offending, the fact that it will only get worse would increase the risk of re-offending. The Applicant contended that progression of dementia would decrease any risk given the decrease in functioning over time.
While the offending seems out of character, there is not any medical evidence of cognitive impairment or of medication impacting the Applicant’s behaviour. Dr Yoxall was not in a position to make an assessment about those matters and she, rightly, did not take them into account in her risk assessment. The very real possibility that the Applicant’s cognitive function was impaired by medication or a degenerative condition makes it easier to make sense of his uncharacteristic, highly disturbing conduct. However, there is not enough evidence to take that into account in terms of the risk of re-offending or as a matter that could mitigate his failure to meet the expectations of the Australian community (relevant to the weight allocated to Primary Consideration 5).
I place significant weight on Dr Yoxall’s evidence including her assessment that there is a low risk of re-offending. Further, I think the risk has to be at the lower end of the low range given the restrictions on the Applicant’s mobility, which will only get worse, and which will greatly limit – if not remove altogether – his access to children.
Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Victim 1 was the Applicant’s step-grandchild, he had known her all her life, and the relationship between them was such that she was casually left in his care on at least two occasions. His lawyer quite properly conceded that Victim 1 was a member of his family.
While the Applicant was not aggressive or threatening, and he did not use force or inflict any injuries upon Victim 1, the Applicant conceded that sexual offending is inherently violent. It certainly involves an unwanted invasion of physical boundaries. I accept the Applicant’s concession. This Primary Consideration is engaged.
I have already addressed the fact that the Applicant offended against Victim 1 twice and the impact of that, being that she feared he wanted to have sex with her and had nightmares about it. I have also addressed the extent to which the Applicant accepts responsibility for his offending against Victim 1, his general understanding of the impact it could have on her, and the efforts he has made to work out and address the reasons he offended.
While I have already taken the matters in this Primary Consideration into account in the weight I allocated under Primary Consideration 1, I apply a small uplift under this Primary Consideration. That is because it is clear from the fact that family violence has its own mandatory consideration in the Direction that weight should be allocated against revocation in recognition of the government’s specific condemnation of, and commitment to eradicating, family violence in our community.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here I am to consider any impact of the decision on the Applicant’s immediate family members in Australia. They are his three adult children, and three grandchildren, who are all Australian citizens. I should also consider the strength, duration and nature of any family or social links generally with his adult children and minor grandchildren.
In addition, I should consider the strength, nature and duration of any other ties he has to the Australian community. The length of time the Applicant has resided in Australia should be given more weight if he has contributed positively to Australian community in that time.
The Applicant has lived in the Australian community for over 50 years. Prior to retirement, he always supported himself and his family through gainful employment. He did voluntary work in his local area. He said he is well known in the community and has many friends, which is plausible, although since the offending he appears to have withdrawn. I find that he has made a substantial positive contribution to the Australian community in the time he has been here.
Further, for five years, he raised his three children on his own after the death of his wife. It appears he did a good job: there is no suggestion that any of them are anything other than well-adjusted, law-abiding people. For the last 30 years, the Applicant has been the primary carer of Mr G. Among other things, he supported Mr G to lead a reasonably full life, taking him to work, medical appointments, social events and on at least one overseas trip (to Scotland seven years ago). At one time, he provided supervised employment for Mr G in his business. I find that the Applicant has been a good parent to his children and, at least until he was charged, they all had close, positive relationships with him. It appears he still maintains a positive relationship with Mr S and a very strong bond with Mr G. There is very little evidence about his relationships with his grandchildren and I do not allocate any weight in relation to them.
According to the Applicant, Mr G does not understand the concept of deportation and gets extremely distressed when family members have tried to talk to him about it. Mr G is extremely worried about the Applicant. Ms H gave evidence that Mr G does not understand things in a normal way and that Mr S struggles to communicate with him in a way that Mr G understands. The Applicant is very good at communicating with Mr G, he simplifies things and is very patient. Without the Applicant around now, sometimes Ms H is called on to act as a buffer when there are problems between Mr S and Mr G. She sees Mr S being in a difficult position, working, being a parent to his son and also looking after Mr G. She said “Sometimes they’ll have a disagreement about something and [Mr S] isn’t quite equipped with understanding because he’s going through so much. So I have to kind of manage both of them”.
Although Ms H lives two hours away, she assists with things like renewing Mr G’s phone contract and managing his NDIS plan. Further, whereas the Applicant used to be the person who primarily provided emotional support to Mr G, now that has fallen to her and Mr S. Ms H is very concerned about how the Applicant being deported will impact Mr S mentally as his ability to deal with stress “isn’t so great”. Ms H considers the current NDIS plan inadequate and she is seeking a review. It is not known at this stage whether she will be successful.
I am satisfied that the Applicant’s absence is already having a negative impact, emotionally and practically, on Mr G, and a knock-on negative impact on Mr S and Ms H who are carrying the burden that the Applicant used to carry. I am satisfied that this will only get worse if the Applicant is deported, give the difficulties with communicating in different time zones and the emotional toll the Applicant’s deportation is expected to take on Mr G. Although the Applicant can no longer provide as much physical assistance to Mr G as he used to, such as driving him around, he can provide other kinds of support if he is returned to the community.
There is some force in the submission made on behalf of the Applicant that there is a difference between a parent looking after a child and a sibling looking after a sibling. A parent expects to, and is expected to, care for their child. If the Applicant were to be returned to the community, and resume the role of carer for Mr G as far as he is able to, he would not only be performing a function that he has willingly performed for decades, he would be keeping a promise to his deceased wife. I accept that looking after Mr G feels more onerous to his siblings, who are raising their children and trying to live their lives, than it does to the Applicant.
Even though Ms H is currently barely speaking to the Applicant, she gave evidence in this proceeding and expressed concern about him. Mr S provided written evidence and I am satisfied he maintains a loving relationship with the Applicant. I am satisfied that the Applicant’s children will worry about his wellbeing, and his ability to survive, if he is removed to Scotland, and this will cause them emotional hardship.
The Applicant is unable to work for a living. To support himself in Scotland it may be necessary to sell the house he owns, that his son’s live in. If he did that, they would have to move into a less expensive home. I accept that this would negatively impact them to a small extent.
This Primary Consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[8]
[8] Paragraph 8.4(1) of the Direction.
Non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they raise serious character concerns through conduct, in Australia or elsewhere, that includes the commission of serious crimes against children. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[9]
[9] Paragraph 8.4(3) of the Direction.
Paragraph 8.4(4) of the Direction provides the following guidance on how the expectations of the Australian community are to be determined:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In a nine-month period, the Applicant committed three sex offences against children. Offending in that category gives rise to an expectation that the Applicant’s visa will be cancelled whether or not there is a measurable risk of re-offending. Balanced against that, outside that nine month period, for some 50 years, the Applicant has been law-abiding and he has adhered to the expectations of the Australian community.
Primary Consideration 5 weighs moderately against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to Scotland in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of the United Kingdom) taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in the United Kingdom.
The Applicant is 77 years old and in very poor health with limited mobility. A preliminary issue here is the impact of the Applicant’s health on his capacity to withstand the journey to Scotland. A secondary issue is the impact that such a journey will have on his health and, in turn, on his ability to establish himself and maintain basic living standards in Scotland.
The last time the Applicant flew was seven years ago. Since then, his health has deteriorated and he had a stroke last year. He said his doctors told him he should not fly. He has not had a “Fitness to Travel Assessment”, which he would need before being deported. It was contended on the Applicant’s behalf that he would be on board a plane for over 20 hours without access to medical support. This was not challenged. He requires a walker to move about. It is not apparent how he could manage that, for example, to go to the toilet, on a plane. If the Applicant is not given his visa back and he is assessed as unfit to fly, then he is possibly facing a prolonged period of detention while the department considers its options. This is a legal consequence that I take into account. If he is assessed as fit to fly, and deported, the trip will certainly be physically onerous. I take into account that he may well land in Scotland weaker and more fragile than he is now.

As a citizen of the United Kingdom, the Applicant would be entitled to health care through the National Health Service just like any other citizen, and presumably he would be subject to the same wait times. Given his existing conditions it is unknown whether he could get private health insurance. He would have to locate and access the necessary physical and mental health providers while suffering from major depression and serious health problems.
The Applicant would have no meaningful support in Scotland as the only relative he knows well is an elderly aunt who needs care herself. He has cousins but the last time he was in contact with them was seven years ago, presumably when he visited Scotland. It is not realistic to expect that they would assist him in his day to day life. Ms H indicated that she and Mr S could not leave their lives here and live in Scotland. Nor would they be able to visit often due to the cost. She said she does not know how long the Applicant would last there alone. The Applicant will face obvious challenges due to his limited mobility such as boarding public transport, carrying groceries and navigating stairs using a walker.
Dr Yoxall thought the Applicant’s level of coping would be exceptionally low in Scotland, noting his cognitive decline and confusion, depression, and his complex physical health concerns. She said “He really doesn’t have substantial capacity to restart a life in Scotland when he actually doesn’t have any family members or friends or people he’s tied to in that country to assist him”.
The Applicant receives a pension from the UK of approximately $300 per month. He would also be entitled to the social welfare payments and housing support that is available to citizens of the United Kingdom. He would need housing that is accessible to him. I accept that the financial support his children could provide is limited.
After the Applicant was charged with the offences, he transferred the title of the house he was sharing with Mrs A to her. He owns the other house outright. He does not have superannuation as he used that to start his business. The house he owns is worth around 1 million dollars. I am satisfied that if the Applicant needed money to access suitable accommodation and pay for his medical needs he could sell his house, purchase a smaller dwelling for his sons for a lower amount, and use to difference to rent accommodation in Scotland.
The Applicant would not face any substantial language or cultural barriers in Scotland.
Given the Applicant’s very poor physical and mental health, and total lack of familial or social support in Scotland, I am satisfied that it would be very difficult for him to establish himself in Scotland. I am also satisfied that he will struggle to maintain basic living standards in terms of managing his multiple health conditions. That is, removal to Scotland involves a real risk of making the Applicant’s very poor health even worse. This Other Consideration weighs heavily in favour of revocation of the mandatory cancellation. I note that if there was sufficient evidence to satisfy me that the Applicant suffers from dementia, I would allocate more weight.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Against revocation of the cancellation of the Applicant’s visa, I have allocated moderate weight under Primary Consideration 1, added a small uplift under Primary Consideration 2, and allocated moderate weight under Primary Consideration 5. In favour of revocation, I have allocated heavy weight to both Primary Consideration 3 and Other Consideration (b). Application of the Direction therefore favours revocation. There is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is set-aside and the Tribunal instead revokes the cancellation of the Applicant’s visa.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

..................................[SGD]......................................
Associate
Dated of decision: 10 November 2023
Date of hearing: 8 and 9 November 2023
Solicitor for the Applicant: Ms Victoria Lenton
Lenton Migration Law Pty Ltd

Solicitor for the Respondent: Mr Ashley Burgess
Australian Government Solicitors

ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATED FILED

G1 Section 501G Documents ‘G-Documents’
(G1 – G3) Total Pages: 334 R Various 12.09.2023

A1 Applicant’s Statement of Facts, Issues and Contentions
Total Pages: 29 A Various 27.09.2023

A2 Applicant’s Tender Bundle of Additional Material
(AM 1 to AM 3) Total Pages: 12 A Various 27.09.2023

A3 Dr Yoxall Report
Total Pages: 51 A 06.11.2023 06.11.2023

R1 Respondent’s Statement of Facts, Issues and Contentions
Total Pages: 14 R Various 16.10.2023

R2 Respondent’s Tender Bundle
Total Pages: 87 R Various 16.10.2023

[2023] AATA 4092

10 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATED	FILED
G1	Section 501G Documents ‘G-Documents’ (G1 – G3) Total Pages: 334	R	Various	12.09.2023
A1	Applicant’s Statement of Facts, Issues and Contentions Total Pages: 29	A	Various	27.09.2023
A2	Applicant’s Tender Bundle of Additional Material (AM 1 to AM 3) Total Pages: 12	A	Various	27.09.2023
A3	Dr Yoxall Report Total Pages: 51	A	06.11.2023	06.11.2023
R1	Respondent’s Statement of Facts, Issues and Contentions Total Pages: 14	R	Various	16.10.2023
R2	Respondent’s Tender Bundle Total Pages: 87	R	Various	16.10.2023