QJLT and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 782
•13 June 2025
QJLT and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 782 (13 June 2025)
Applicant/s: QJLT
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/2940
Tribunal:Senior Member Kennedy
Place:Adelaide
Date:13 June 2025
Decision:The decision to cancel the visa under subsection 501(2) of the Act is set aside and substituted with a decision that the visa is not cancelled.
Statement made on 13 June 2025 at 1:27pm
CATCHWORDS
MIGRATION – cancellation of Class BF Subclass 155 Transitional (Permanent) visa under section 501(2) - where Applicant does not pass the character test – Applicant has substantial criminal record – sexual offences against minors – consideration of Ministerial Direction No. 110 – lengthy delay before primary decision – very low risk of reoffending – risk so low may be safely disregarded – protection of the community not served by cancellation of visa – expectations of the community weigh heavily in favour of cancellation despite no meaningful risk of reoffending – applicant arrived as child - substantial ties to the Australian community – substantial impediments if removed - decision under review is set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
Crimes Act 1901 (Cth)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866
Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 285
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Border Protection v Eden (2016) 240 FCAFC 28
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003
Ryan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 487
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146
XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553
SECONDARY MATERIAL
Direction No. 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Statement of Reasons
Mr QJLT is a 70-year-old male citizen of the United Kingdom who has resided in Australia since 1968, when he arrived at the age of 13. Immediately prior to 22 November 2024 he held a Class BF Subclass 155 Transitional (Permanent) visa.
Mr QJLT committed sexual offences against his stepdaughter and stepson. His offending against his stepdaughter ceased in 1985. His offending against his stepson ceased in 1994. These offences came to light in 2002, and on 28 November 2003 Mr QJLT was dealt with by the District Court of New South Wales and sentenced to 27 months imprisonment.
More specifically, Mr QJLT was convicted of sexual assault (category 3) against a person under the age of 16, for which he was sentenced to imprisonment for 27 months with a non-parole period of 18 months, indecent assault against a victim under 16 years of age, for which he was sentenced to imprisonment for 9 months (concurrent), indecent assault male, for which he was sentenced to 15 months imprisonment (concurrent), and homosexual intercourse with a male less than 18 years but older than 10 years, for which he was sentenced to imprisonment for 15 months (concurrent).
Mr QJLT was released from prison on 24 March 2005.
15 years later, on 26 June 2020, Mr QJLT was sent a notice of intention to consider cancelling a visa (NOICC) under subsection 501(2) of the Migration Act 1958 (the Act).[1] Mr QJLT made detailed representations in response.
[1] Hearing Book (‘HB’), 283.
Four years later, on 23 July 2024, another NOICC was sent to Mr QJLT.[2] Four months later, on 22 November 2024, a delegate of the Respondent cancelled Mr QJLT’s visa. A further 4 months later, on 25 March 2025, notice of the cancellation was given to Mr QJLT.
[2] HB, 375.
Mr QJLT applied to the Tribunal for review on 3 April 2025.
As to the delay between Mr QJLT’s release from prison, the first NOICC, the second NOICC and the delay between the decision and notification, only a recitation of the established chronology and a vague justification has been offered by the Respondent by way of explanation. As I indicated at the conclusion of the hearing, in the interests of transparency I reproduce, for the record, the response received to the specific request for an explanation of the extraordinary chronology of this matter:
“The delay from QJLT’s release to the issuing of the first Notice of Intention to Consider Cancellation (NOICC):
We are instructed that the Australian Federal Police (AFP) referred QJLT as a Person of Interest (POI) to the Department in 2019. That request from the AFP prompted the request for a National Criminal History Check (NCHC). Once the NCHC was received, the first Notice of Intention to consider Cancellation was sent to QJLT on 26 June 2020.
The delay from the issuing of the first NOICC to the issuing of the second NOICC:
We are instructed that on 21 April 2021 a natural justice letter was sent to QJLT following a change in Direction from No. 79 to Direction No. 90. Due to competing priorities in a number of matters, there was a delay in progressing this case. A new NCHC was also requested, and a number of other administrative functions were performed. A second NOICC was issued on 23 July 2024 in accordance with the requirement that a new NOICC must be issued if there has been significant delay since last communication with the POI’s legal representative. Another reason for issuing the second NOICC was the introduction of Direction No. 110.
The delay from the visa cancellation to the notification:
We are instructed that after the delegate made the decision to cancel QJLT’s visa on 22 November 2024, the notification was conducted by Australian Border Force (ABF) Field Operations that, as an unlawful non-citizen, QJLT will be required to be detained. ABF Field Operations spent the time between cancellation and notification to locate QJLT and then operationally planned his detention.”
I recognise that there is no period of limitation in the Act which might prevent the Respondent (or the Tribunal) from taking action to cancel the visa under subsection 501(2): Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Jones).[3] I note the circumstances in which delay might be explained as considered by the Court in that matter, and perhaps the reference to the Australian Federal Police referring Mr QJLT to the Department in 2019 (which I must take to mean for the first time) engages with one of the scenarios identified by the Court in that matter. The other delays are not adequately or transparently explained. The context in which I considered a full account of the delay in the progress of this matter was required was in noting the Respondent’s submission that the first primary consideration, the protection of the Australian community, weighs heavily in favour of affirming the decision to cancel the visa.[4]
[3] [2022] FCA 285 at [30]-[31].
[4] HB, 485-474.
I draw attention, by way of observation only, to the recent decision in XMBQ v Minister for Immigration and Multicultural Affairs,[5] in which the Court found there was an implied temporal limitation in the exercise of the Minister’s personal power under section 501BA of the Act, having regard to the text, context and purpose of that particular provision,[6] a discretionary power that resides within the legislative scheme.
[5] [2025] FCA 553.
[6] Ibid at [129]–[140].
As observed in Minister for Immigration and Border Protection v Eden,[7] the Full Court recognised that the primary Judge had correctly identified that the time that had elapsed since the offending was relevant in assessing the reasonableness of the outcome, in at least two ways: the assessment of risk of reoffending and the hardship that would be suffered by the Applicant if the visa were to be cancelled.[8] For reasons developed further below, those observations are germane.
[7] (2016) 240 FCAFC 28.
[8] Ibid at [81]–[83] (The Full Court allowed the appeal on other grounds).
LEGISLATIVE FRAMEWORK
Under subsection 501(2) of the Act, the Minister may cancel Mr QJLT’s visa if the Minister reasonably suspects that he does not pass the character test and he does not satisfy the Minister that he passes the character test.
The character test is defined in subsection 501(6) of the Act. Relevantly paragraph 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record. That term in turn is defined by subsection 501(7) of the Act to include a person who has been sentenced to a term of imprisonment of 12 months or more.
Mr QJLT was sentenced to 27 months imprisonment and therefore I reasonably suspect that he does not pass the character test. Indeed, having regard to the effect of subsection 501(7A) of the Act, which provides that where terms of imprisonment are to be served concurrently the whole of each term is to be counted in working out the total of the terms, Mr QJLT concedes that his aggregate sentence is of 66 months.
In written submissions filed on behalf of Mr QJLT it is conceded that he has received a sentence of imprisonment of 12 months or more and the Tribunal is compelled to find that he is a person who does not pass the character test.
I suspect that Mr QJLT does not pass the character test and Mr QJLT has not satisfied me that he passes the character test. It follows that the discretion to cancel the visa as provided for in subsection 501(2) of the Act arises for consideration.
SHOULD THE VISA BE CANCELLED?
Ministerial Direction 110
Under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act, and a person or body must comply with any direction given by the Minster (subsection 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Tribunal must comply with the Direction.
An objective of Direction 110 is to guide decision-makers in exercising powers under sections 501 of the Act.[9] In exercising the power under subsection 501(1), the Tribunal must have regard to the primary and other considerations set out in Direction 110 where relevant to the decision.[10]
[9] The Direction, paragraph 5.1(4).
[10] Ibid paragraph 6.
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[11]
[11] The Direction, cl 5.2.
The Direction also sets out matters to be considered in cancelling the visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[12]
[12] Ibid cl 7.
The Direction does not limit the matters the Tribunal can consider in deciding whether to exercise the discretion to cancel the visa.
The Direction contains five primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.[13]
[13] Ibid cl 8.
I have considered each one in turn, keeping in mind the principles in clause 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[14]
[14] Ibid cl 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[15]
[15] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[16]
[16] Ibid cl 8.1(2).
Nature and seriousness of the conduct
I must consider the nature and seriousness of Mr QJLT’s criminal offending or other conduct to date.[17] In doing so, paragraph 8.1.1(1) of Direction 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community.
[17] Ibid cl 8.1(1).
A number of matters other than the offences for which Mr QJLT was convicted were taken into account by the Court in sentencing as ‘Form 1 offences’. As explained by the Court in Jattan v Minister for Immigration, Citizenship and Multicultural Affairs:[18]
Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides a 'Form 1' procedure, whereby it was open to the applicant to admit guilt in relation to further offences and have them taken into account for the purpose of sentencing for principal offences. No separate penalty is imposed and no conviction is recorded for further offences taken into account under this scheme…
[18] [2024] FCA 866 (9 August 2024).
As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton,[19] section 85ZR and 85ZS of the Crimes Act 1901 operate to prohibit certain conduct from being regarded as a conviction for any purpose by a Commonwealth authority. In both Jattan and Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs,[20] it was held that the Tribunal was in material error to take into account as convictions matters dealt with by the Court under the ‘Form 1’ scheme in New South Wales.
[19] [2023] HCA 17.
[20] [2024] FCA 468.
Mr QJLT’s criminal antecedent report identifies two further offences as offences taken into account as Form 1 offences,[21] while the sentencing remarks mention three other offences admitted as Form 1 offences,[22] with the second such matter appearing to be the matter omitted from the antecedent report. The disjointed prose used in the antecedent report is difficult to interpret in this regard, particularly as the nature of the Form 1 matters essentially mirrors the nature of matters the subject of convictions.
[21] HB, 54.
[22] HB, 271-280.
Nonetheless, and to avoid doubt, having regard to the authorities in Jattan and Nguyen, I accept that I must not take into account the matters dealt with by the Court under the Form 1 process. Any reference to offending or offences elsewhere in these Reasons should therefore be interpreted to exclude the matters dealt with by the Court under that process.
Further to avoid doubt, in the course of the hearing I mentioned that the way in which the ‘family violence’ consideration (that is, the primary consideration at 8.2 of Ministerial Direction 110) is expressed may nonetheless oblige me to take into account ‘acts’ of family violence where there is information or evidence from independent and authoritative sources (falling short of a conviction) indicating (as such), despite those acts otherwise being dealt with through the Form 1 process. On further analysis of the reasoning in Jattan and Nguyen however, I resile from any view I expressed in that regard and consider I am prohibited from taking into account the matters dealt with under the Form 1 process having regard to the construction of sections 85ZR and 85ZS of the Crimes Act 1901 that has been pronounced by the Court in the context of matters such as the present.
However, I observe that in studying the sentencing remarks of the Court, the Court (unsurprisingly given the purpose of the Form 1 process) makes remarks reflecting, to some degree, the existence of the Form 1 matters in describing the seriousness of Mr QJLT’s conduct as a whole, in particular recognising that Mr QJLT’s offending against his stepson was sustained and not limited to the two instances the subject of the conviction. In having regard to and extracting the remarks of the Court as to the seriousness of the offending, I have been unable to therefore wholly exclude references to circumstances that recognise the existence of the Form 1 matters in that context. Indeed, to do so would be to wholly mischaracterise the nature of the sexual abuse perpetrated against Mr QJLT’s stepson (“SS”).
In written submissions Mr QJLT concedes that his offending involved sexual crimes against children and therefore fall squarely within the category of conduct viewed as very serious under paragraph 8.1.1(1)(a)(i) of the Directions. The submissions accept that the nature and seriousness of Mr QJLT’s conduct could not be more grave.
In sentencing Mr QJLT, the Court provided the following background as to his relationship with his victims and the offences:
“In around 1979 [Mr QJLT] was working as a childcare case worker at [W] Hospital. [The facility] was a facility for the treatment and support for children from physically and sexually abusive families.
In the course of that employment the offender came into contact with a coworker [subsequently Ms QJLT], Registered nurse. [Ms QJLT] is the mother of the two victims. [Stepdaughter (“SD”)]… and [SS]. [Ms QJLT] was then living with the father of the victims. In [date]… the parents of the victims separated. The offender started a relationship with [Ms QJLT] and [when the victims were aged six and three respectively] he moved into live with [Ms QJLT] and the victims.
… [The court describes the particulars of the first two offences the subject of convictions against [SD]. The offences are separated by three years. The second involved digital penetration of the victim when she was in her bedroom preparing to go to sleep…
…[The court describes the balance of the offences against [SS]. The offences are separated by approximately 10 years. The second involved Mr QJLT performing an act of oral sex on the victim who was then 14…”
As to seriousness, the Court said:
“Each of the offences is very serious, in particular the offender's ongoing abuse of his stepson over a period of 12 years is an exploitation of the position of trust held by the offender and is a matter of grave concern to the community. Children of the age of the victims when the offending behaviours commenced are virtually helpless when abused by a stepfather.
…
The evidence does however establish that the offender for a period of 12 years until [SS] was around the age of 16 engaged in prolonged and continuous touching of the boy’s penis.
…
The offender was born in …1955, he married [Ms QJLT] in [date] and they have two other children. There is no relevant criminal history. The offender has undergone 12 months treatment with a psychologist comprised of 45 one hour sessions. The psychologist has diagnosed a personality disorder and he felt that there were positive indicators that treatment will be successful. The offender does however have ingrained patterns of behaviour including a lack of insight into his aggressive behaviour. The psychologist considers that the offender would benefit from an intensive psychotherapeutic programme of rehabilitation within the community.
…
When giving evidence on sentence the offender expressed remorse and said that he has made a sincere effort to change his behaviour. He ceased the assaults on [SS] when [he] asked him to stop and disclosed his offending behaviour in relation to [SS] which ultimately led to those charges. He has cooperated with the police and made full admissions when first questioned by police in relation to [SD]. The offender elected to refuse to apply for bail once the guilty plea had been entered.
…
I am satisfied that having considered all possible alternatives no penalty other than full-time imprisonment is appropriate. I also take into account the utilitarian value of the plea of guilty. It is common ground that his pleas were entered at the first reasonable opportunity.”[23]
[23] HB, 271-280.
In his detailed written statement prepared in 2020 which Mr QJLT adopted as his evidence in the review, Mr QJLT said that his offences could not be more serious. He said he had sexually abused his stepdaughter and stepson who were minors in his care and who were completely helpless. Mr QJLT provided further details of the offending in his statement consistent with the findings of the Court. Mr QJLT said he has not had contact with his victims since 2002 and has also ceased contact with his other children because they are close with their siblings.
In his oral evidence, Mr QJLT explained that he admitted his conduct when [SD], as an adult, had confided in her husband and then accused him of the conduct. Mr QJLT explained that he had admitted his conduct against [SS] to the police. Mr QJLT’s cooperation with police and early plea of guilty was acknowledged by the Court in sentencing.
For completeness, I note that Mr QJLT has a number of additional criminal convictions recorded in his antecedent report including convictions in 1979 for possessing and smoking a prohibited drug, convictions in 1983 for the cultivation and possession of utensils associated with smoking Indian hemp and regulatory offences pertaining to lodging reports as a Director of a company in 1993. While I have had regard to these matters they are of limited significance in my consideration of the nature and seriousness of his conduct to date, and carry little weight in the overall evaluative exercise I am undertaking.
The Direction provides that sexual crimes against children are to be considered very seriously by the Australian government and the Australian community regardless of the sentence imposed. As correctly conceded by Mr QJLT his offences for which he has convictions squarely fall within the notion of very serious crimes for the purpose of the Direction.
I am to take into account the sentence imposed by the courts for crimes in understanding the nature and seriousness of the conduct with the exception of crimes such as sexual offences against children. I note in any event the remarks of the Court recognising that there was no possible alternative other than imprisonment and that each of the offences was very serious.
I am to take into account the impact of the offending on any victims of the offending where information in this regard is available and where Mr QJLT has been afforded procedural fairness.
In this regard Mr QJLT gave evidence that he has come to be aware that the victims of his offending have suffered profoundly throughout their lives as a result of his conduct. Although he has had no contact with his victims since his offending came to light, he has maintained a relationship with their mother, Ms QJLT, and remained appraised of their circumstances.
More detailed evidence of the impact of the offending on [SD] and [SS] in this regard was given by their mother, Ms QJLT. The report of Dr Webster to which I will turn in greater detail later in these Reasons states that “it would be unusual if [SD] and [SS] emerged from this experience without significant and lasting psychological challenges” and indeed, according to both Mr QJLT and also Ms QJLT, that is the case in relation to at least to [SS].
Ms QJLT stated that [SS] has struggled with drug and alcohol issues and has post traumatic stress from the child abuse, confirming her knowledge in this regard arose from [SS] being assessed by a clinical psychologist and other experts. Mr QJLT said [SS] was homeless.
Ms QJLT said that [SD] has a drinking problem, but she attributes it to [another stressor]. In his evidence, Mr QJLT identified [SD]’s drinking problem in the context of the damage he had done to her.
I have no expert evidence before me in relation to the psychological impact of Mr QJLT’s offending on his victims, other than the informed speculation in that regard by Dr Webster. I am however satisfied that the impact has been profoundly adverse and manifested in drug and alcohol problems and post traumatic stress in the case of [SS] and has contributed at least to alcohol problems in the case of [SD]. I find the impact of Mr QJLT’s offending on his victims has been profoundly adverse, as might be expected having regard to the nature of the victims as children and breach of trust it involved.
I am to take into account the frequency of the non-citizen’s offending, whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
I note from the sentencing remarks that the two offences resulting in convictions in respect of [SD] occurred three years apart, and the two offences resulting in convictions in respect of [SS] occurred approximately 10 years apart. The sentencing judge remarked in the case of [SS] that Mr QJLT’s conduct amounted to ongoing abuse of his stepson over a period of twelve years. In this sense, I consider that the offending was of adverse frequency within the meaning of the Direction. There is no evidence that Mr QJLT offended against any persons other than [SS] or [SD] or after 2003, and in that sense, I accept his offending was contained to his stepchildren and to a defined period of time. I do not however view the offending as isolated or ‘one-off’ as to do so would be to fundamentally misdescribe the nature and seriousness of it in the case of [SS] even in circumstances where I must disregard the conduct dealt with under the ‘Form 1’ scheme.
The offending commenced as very serious and continued as very serious, and in that sense, there is no trend of ‘increasing’ seriousness. The offending continued in the case of [SS] for a very long time, indeed throughout [SS]’s childhood and adolescence until the age of about 14. Subject to the constraints in taking into account matters the subject of the Form 1 process, I view the offending as repeated offending over the course of 12 years against [SS] and understand it to be less extensive as against [SD].
Mr QJLT has not provided false or misleading information to the Department and nor has he been formally warned by the Department or made aware in writing about the consequences of further offending. Mr QJLT’s offending occurred in Australia.
Having regard therefore to all of the matters identified at clause 8.1.1 of the Direction, the nature and seriousness of the conduct, I consider that the conduct is very serious indeed.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[24]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[24] See also, the Direction cl 8.1(2)(b).
This requires an assessment of the nature of the harm should Mr QJLT engage in further criminal or other serious conduct.[25] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[26] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[27]
Nature of the harm
[25] Ibid cl 8.1.2(2)(a).
[26] Ibid cl 8.1.2(2)(b).
[27] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Ovshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
In order to determine the risk to the Australian community should Mr QJLT commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[28]
[28] The Direction cl 8.1.2(2)(a).
Consistent with my findings as to the seriousness of the offending, I consider that the nature of the harm should similar offending be repeated is very grave and is indeed such that any risk that the conduct may be repeated is unacceptable. The sexual predation of children by adults is unacceptable to the Australian community including on account of the psychological and physical harm it may cause to children, and as demonstrated in this case the capacity of the harm to follow children into their adult lives. Noting the observation in the Direction (at 8.1.2(1)) that the Australian community’s tolerance for any risk of harm becomes lower as the seriousness of the potential harm increases, I consider that the Australian community will have very little tolerance for risk associated with sexual offending against children.
I am to form a view as to the likelihood of Mr QJLT engaging in further criminal conduct, taking into account information and evidence on the risk of Mr QJLT reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community.
In this regard this is a very unusual case because of the extended time Mr QJLT has spent in the community following his offending and punishment before any action was taken by the Respondent’s department. It is demonstrable that Mr QJLT has not reoffended in some 30 years.
The Tribunal has before it expert opinion evidence of unusual quality and persuasiveness. Dr Webster is a forensic psychologist who describes in his qualifications and experience a particular focus in his practise of providing assessment and treatment services to both the victims and perpetrators of child sexual abuse for 35 years and continuing to undertake and present research and publish in the area of sexual offending.
Dr Webster's clinical relationship with Mr QJLT is also impressive. Dr Webster met with Mr QJLT on 45 occasions until his incarceration in 2003 and provided the report for the purpose of Mr QJLT’s sentencing. He has reviewed his opinion and prepared a further detailed report in 2020.
Turning first to Dr Webster's report in 2003,[29] Dr Webster describes administering both psychometric testing and actuarial risk assessments concluding that Mr QJLT had a personality disorder. Dr Webster identified sex deviant problems, emotional problems such as emotional immaturity and feelings of insecurity in social and sexual interactions involving age-appropriate females, and behavioural problems.
[29] HB, 154-162.
In his oral evidence to the Tribunal, Dr Webster was invited to elaborate on the nature of the personality disorder to which he was referring. He said it referred to non-specific personality disorder, with elements of antisociality (although not to the extent of an antisocial personality disorder), and elements of borderline personality and narcissistic personality disorder. He said that all of these traits come together to explain Mr QJLT’s offending. Dr Webster identified that Mr QJLT’s offending was marked by ego dystonic characteristics given Mr QJLT did not like what he was doing and was very shameful about it.
Ultimately in 2003 Dr Webster considered that an actuarial risk assessment of Mr QJLT based on static risk factors only indicated that he was to be assessed as low risk. Dr Webster however was not confident to incorporate dynamic risk factors in that assessment, which at that time Dr Webster thought warranted more cautious consideration.
In 2003 Dr Webster commented that that there were positive signs for Mr QJLT’s treatment amenability. Dr Webster identified that Mr QJLT would benefit from an intensive psychotherapeutic programme of rehabilitation within the community and observed that he had made considerable gains over 12 months of treatment.
The sentencing judge took into account Dr Webster’s opinions in this regard, noting that there were positive indicators that treatment would be successful.
Before examining Dr Webster’s detailed further report of 21 September 2020, it is convenient to recount the documentary evidence demonstrating Mr QJLT’s engagement with rehabilitative courses, supervision and treatment in the period of 20 years between his release from prison and the first NOICC.
In his statement Mr QJLT describes undertaking various vocational and artistic courses while imprisoned. Documentary evidence before the Tribunal confirms that Mr QJLT's response to supervision while on parole was satisfactory,[30] with references to Mr QJLT undergoing therapy and counselling. Mr QJLT was released on parole in [a different State/Territory], and documentary evidence confirms his participation in an identified adult sex offender program in 2005, consisting of 22 individual sessions.
[30] HB, 103.
Other documentary evidence establishes that Mr QJLT received counselling from May 2005 to January 2006 from a non-government service provider with the aim of eliminating sexual violence against children.[31]
[31] HB, 172.
Mr QJLT has provided documentary evidence demonstrating attainment of qualifications in various vocational fields including sewing, forklift operations, information technology, art and writing.[32] He attained a bachelor’s degree from [an identified University] in [an artistic field] in 2009, receiving academic commendation, and was employed at that institution in a workshop attached to the relevant school between 2011 and 2018. Mr QJLT left his employment when he recognised that his convictions would prevent him from passing a newly introduced background check. During the period of his employment Mr QJLT exhibited artwork.
[32] HB, 173-198 and 211-226.
The body of documentary evidence before me demonstrates that in the period between Mr QJLT’s release from prison and the first NOICC, Mr QJLT demonstrably applied himself to activities directed at rehabilitation and therapy in relation to his offending, and also to general vocational, academic and artistic activities that provide evidence relevant to rehabilitation. I take all those matters into account.
Returning to the opinion of Dr Webster, Dr Webster provided an updated report,[33] and administered further psychometric testing, as well as conducting a two-hour interview with Mr QJLT.
[33] HB, 136-149.
After recounting the results of psychometric testing in 2003, Dr Webster administered two psychometric tests directed towards assessing change. From this testing Dr Webster identified that Mr QJLT was not attempting to manipulate others by giving biased responses to questions and identified that Mr QJLT was suffering from depression and generalised anxiety disorder, likely to be exacerbated by his current crisis (that is, the proposal to consider cancelling his visa).
Dr Webster identified that Mr QJLT’s behaviour in admitting the offending and providing additional inculpatory information to police was unusual, as was the evidence that had accrued of efforts he had taken to ensure he did not reoffend. Dr Webster identified that Mr QJLT’s personality issues had not changed a great deal between 2003 and 2020, but his behaviour over time had changed dramatically.
Dr Webster explained the recent development of standardised risk levels for general offenders and identified five broad risk levels. Dr Webster explained that an actuarial assessment of Mr QJLT’s static risk factors placed him in the lowest category; that is, very low risk.
In relation to dynamic risk factors, Dr Webster identified matters such as Mr QJLT’s stable relationship with his wife, demonstrated capacity to manage any attraction he may experience towards children, his retirement and meaningful life in assisting his wife, and the positive response to supervision and treatment. Dr Webster commented on the absence of any risk factors associated with dynamic risk.
Dr Webster’s opinion is the only expert opinion before the Tribunal. Dr Webster’s oral evidence before the Tribunal was impressive and his opinions struck me as scientifically based and highly analytical of the available evidence. Dr Webster’s longitudinal assessment of Mr QJLT provided me with an informative and persuasive assessment of risk through comparing Mr QJLT’s situation at the time of his sentence and the situation more proximate to the present time. Dr Webster’s evidence and reports did not, in my assessment, divert into generalised advocacy and I consider his opinion to be reliable.
I find that Mr QJLT has a very low risk of reoffending.
Further in that regard, that terminology is elaborated upon in Dr Webster’s report by reference to the recently developed standardised risk levels for generalised offenders. More specifically, the very low risk of reoffending referred to means that the recidivism rates are indistinguishable from the rate of spontaneous offending among non-offenders.
I find that the evidence before me demonstrates that Mr QJLT has a very low risk (in the sense of likelihood) of reoffending, in the sense that the risk (in the sense of likelihood) is indistinguishable from that of spontaneous offending among non-offenders.
Further as to risk, I have also taken into account Ms QJLT’s evidence regarding the measures she and Mr QJLT take to ensure that Mr QJLT is never in the presence of children alone. In this regard, she described a lifestyle where she doesn't have neighbours or friends coming to the house to ensure that they do not bring children with them. Mr QJLT gave similar evidence about his safety plan and practises to ensure that he is never in the company of children.
In Ryan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),[34] albeit in a slightly different context, I reviewed authorities discussing the assessment of risk:
"In QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4431, the Administrative Appeals Tribunal (DP Britten-Jones) neatly summarised the relevant jurisprudence regarding what was described as the forward-looking process to evaluate the risk of a person engaging in the future in criminal conduct in Australia.[35] The Tribunal cited Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 in which the High Court observed:
[574] The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Kerr J observed of Guo in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 that:
Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.”
[34] [2025] ARTA 487.
[35] The Administrative Appeals Tribunal was considering the same legislation against the context of a previous iteration of the Ministerial Direction (Direction 79), that was substantially different in structure in relation the evaluation of risk of engaging in criminal conduct in Australia.
The Respondent accepted that Mr QJLT was of low risk of reoffending, but argued that even a low risk of offending of the gravity of Mr QJLT’s offending was so serious that any risk of the offending being repeated was unacceptable. When pressed in oral submissions, I understood the submission to be maintained even where the risk of reoffending was no higher than that presented by the general population.
While I concur with the notion that any risk of sexual offending against children being repeated would be unacceptable, the question in this case, as I see it, is whether the degree of risk demonstrated by the evidence amounts to, relevantly, ‘any risk’ as that notion has been described in cases such as Guo. In my view, having regard to the discussion of the notion of risk in Guo, a risk (in the sense of likelihood) that is very low (in the sense that it is indistinguishable from the rate of spontaneous offending among nonoffenders) is a risk that is so low that for practical purposes it can be safely disregarded. I do not therefore accept the premise of the Respondent’s submission that there remains a relevant risk of Mr QJLT reoffending against children for the purposes of the primary consideration of the protection of the Australian community, and that is so having regard to the very low tolerance of risk I consider the Australian community would have towards sexual offending against children, and the notion that any risk of such conduct being repeated would be unacceptable.
As discussed with counsel in the course of submissions, the evidence presented in relation to the first primary criterion is one of extremes. On the one hand, Mr QJLT’s offending is very serious indeed. On the other hand, the risk (in the sense of likelihood) of that conduct being repeated is demonstrably very low, not only through the evidence of persuasive expert opinion but also through the absence of any further offending over the course of some 30 years. The period of non-offending is a circumstance which can be confidently taken into account because of the extraordinary delay in the Respondent’s department making the primary decision.
Balancing these extremes, I conclude that the protection of the Australian community is not served by cancelling Mr QJLT’s visa, notwithstanding his very serious offending. This is because the risk of him reoffending is so low that it may be safely disregarded, with that view formed on the basis of evidence of unusual and remarkable clarity.
I consider that the first primary consideration carries limited weight in favour of exercising the discretion to cancel the visa, but I refer further below to my findings as to the seriousness of the offending (alone) in relation to the expectations of the community.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to cancel the visa.
The consideration is relevant in circumstances, among others, where a non-citizen has been convicted of an offence that involves family violence.
Section 4 of the Direction contains interpretation provisions including a definition of family violence that includes sexual assaults or other sexually abusive behaviour towards a member of a person’s family. [SD] and [SS] were members of Mr QJLT’s family at the time of the offences and the offences consisted of sexually abusive behaviour towards them. It follows therefore that Mr QJLT has been convicted of offences involving family violence.
In considering the seriousness of the family violence engaged in by Mr QJLT, I am to consider the frequency of his conduct and whether there is any trend of increasing seriousness and the cumulative effect of repeated acts of family violence. In this regard I may restate the observations I made at paragraphs 49 and 51.
Similarly, I am to take into account rehabilitation achieved at the time of my decision since the person's last known active family violence including the extent to which the person accepts responsibility for the family violence, the extent to which the citizen understands the impact of their behaviour on the abused and efforts to address factors which contributed to their conduct.
As discussed in greater detail above at paragraphs 67 to 71, I am satisfied that Mr QJLT has demonstrated significant efforts in addressing his offending behaviour through involvement in rehabilitative courses and treatment programmes, and has recognised the profoundly adverse impact his conduct had on his stepchildren. I am satisfied that Mr QJLT has demonstrated acceptance of responsibility for his conduct and demonstrated efforts to address factors which contributed to his conduct.
Nonetheless the primary consideration focused on family violence committed by the non-citizen and the expression at clause 8.2(1) of the Direction as to the government’s serious concerns about conferring the privilege of remaining in Australia on non-citizens who have engaged in family violence indicates that this primary consideration should weigh in favour of the cancellation of the visa. The adverse weight attached to this primary consideration is however substantively lessened having taken into account the rehabilitation achieved at the time of my decision including the acceptance of responsibility, the extent to which Mr QJLT understands the adverse impact of his behaviour and the efforts he has demonstrated in addressing the factors which have contributed to his conduct.
Mr QJLT has not reoffended since 1994 and has not been warned about the consequences of further acts of family violence from any authority.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction No 110 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Given the nature of Mr QJLT’s offending, the circumstances surrounding the impact of the decision on his immediate family members in Australia is unusual. Essentially Mr QJLT is wholly and permanently estranged from his adult stepchildren and adult children and his 11 grandchildren some of whom are adults and some of whom are under the age of 18 years.
One potential exception in that regard relates to his youngest (adult) child. Mr QJLT gave evidence that he understands this child has expressed, through Ms QJLT, a willingness or interest to attempt to rebuild a relationship with her father, Mr QJLT. However, Mr QJLT gave evidence that he has conveyed through Ms QJLT that he does not wish for this to occur because, although he would like to have a relationship with this child, he considers that to do so would put at risk the child’s positive relationship with the other sibling and stepsiblings. Mr QJLT says that this is more important, and he therefore does not think it is a good idea to pursue a relationship with his child. I accept that evidence and find that Mr QJLT will not pursue any relationship with any of his children or stepchildren, or his grandchildren or step-grandchildren.
Likewise, Mr QJLT is wholly and permanently estranged from his sibling in Australia, an older brother, explaining that when he asked to speak with his brother, his brother had told him he never wanted to see him again.
Ms QJLT appears to be the only person who may be described as an immediate family member of Mr QJLT.
In her oral evidence to the Tribunal, Ms QJLT explained that since her retirement and the expiration of Mr QJLT’s registration as a child sex offender, she speaks with him two to three times a day and they spend a lot of time in each other’s company. Mr QJLT explained that since Covid, Mr QJLT has been with her a lot. Prior to that when she was working she would see him on the weekends, and prior to that he was restricted in his travel due to his registration as a sex offender. Ms QJLT said that she visited Mr QJLT when he was in prison except during a period when she had a broken leg.
Ms QJLT said of her children that only her youngest child knew that she maintained contact with Mr QJLT. In response to my question, Ms QJLT confirmed again that none of her other children or their partners were aware that she had maintained her relationship with Mr QJLT acknowledging that, like most people, they would be absolutely horrified to think that she could maintain a relationship with someone that had abused children. Ms QJLT explained it was a very difficult thing for her to do but she sees a lot of good in Mr QJLT and is quite sure that he has rehabilitated.
When asked what she thought would happen if her children were to find out about her relationship with Mr QJLT, she said that she did not know how they or their partners would react, particularly as some of her children have young children themselves. She considered that it was just safer and everyone was much happier if they didn't know. Ms QJLT explained that she did not wish to place her children in a situation where they would need to make a decision knowing that she was seeing the perpetrator of sexual violence towards two of her children. Ms QJLT gave further evidence explaining how she manages to maintain her relationship with Mr QJLT without her children knowing, but it is unnecessary to recite these details.
So, it is in these circumstances as I consider the strength nature and duration of Mr QJLT's ties to Australia that in relation to his immediate family members I identify only Ms QJLT as a person who will be impacted by the decision. In relation to Mr QJLT’s other immediate family members including his sibling, his adult children and stepchildren, his adult grandchildren and step-grandchildren and his minor grandchildren I find that he does not and will not have a relationship with those people and in that sense they will not be impacted by any decision I make concerning the cancellation of his visa.
Ms QJLT said that she would be simply devastated if Mr QJLT left Australia to return to the United Kingdom. Her mobility has been affected by an injury to her leg that she suffered many years ago and Mr QJLT helps her with tasks around the house. She also explained that Mr QJLT does the cooking for her, commenting that she hasn't eaten properly since he has been taken into immigration detention.
In her detailed written statement,[36] which Ms QJLT adopted as her evidence in the proceedings, Ms QJLT said that she couldn't think of what she would do if Mr QJLT was deported and cannot envisage spending her retirement, old age and final years without him.
[36] HB, 240-244.
I find that the impact on Ms QJLT of a decision to cancel Mr QJLT’s visa would be adverse notwithstanding the difficult situation she has described managing her relationship with Mr QJLT and with her children and grandchildren.
As to clause 8.3(2) of the Directions, I am to have regard to how long Mr QJLT has resided in Australia including whether he arrived as a young child. In this regard I note and take into account that Mr QJLT did arrive in Australia as a child and has spent his formative years and all of his adult life residing in Australia. Mr QJLT’s offending took place in midlife and prior to then there is evidence that he contributed positively to the Australian community through employment.
I have taken note of the documentary evidence provided by Mr QJLT addressing his involvement in environmental concerns and donations to charity.
There is also evidence before me about Mr QJLT’s contribution to the Australian community after his release from prison and in that regard I refer again to the evidence of his vocational academic and artistic achievements recounted above.
I have also taken into account evidence of Mr QJLT’s social links with Australian citizens. I observe that it would appear that Mr QJLT has led a somewhat isolated existence. However, the documentary evidence before me contains letters of support from Mr TM,[37] and a further more recent statement from him.[38] Mr TM says he is aware of Mr QJLT’s offending but reiterates that he has only known Mr QJLT as a magnanimous altruistic human being and a dear friend. In his later statement, Mr TM describes Mr QJLT providing care for him during his convalescence from a serious illness.
[37] HB, 263-264.
[38] HB, 476.
I have also taken into account a statement made by Ms CW,[39] a long-term friend of Ms QJLT. She states she is aware of Mr QJLT’s crimes and the impact on his family, and states that despite this she knows Ms QJLT still loves him and needs him for support, and she would face grief and loss if Mr QJLT were to be deported.
[39] HB, 265-266.
I consider that the strength nature and duration of Mr QJLT's ties to Australia weigh against cancelling the visa. I placed weight on the adverse impact of such a decision on Ms QJLT and attach more weight to this consideration through recognising that Mr QJLT arrived in Australia as a young child and has lived his adolescence and adulthood in Australia. I accept the evidence demonstrates that Mr QJLT contributed positively to the Australian community outside of his very serious offending.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.
Mr QJLT has not advanced a case identifying any minor children affected by the decision. In the course of Mrs QJLT’s evidence, I identified a number of grandchildren and step grandchildren who are minors.
However as submitted by Mr QJLT’s counsel when I raised these children as potentially relevant for the purposes of this primary consideration, it is the case that these children do not know Mr QJLT and I can reach a finding with confidence that they will never know Mr QJLT regardless of whether or not his visa is cancelled. Similarly Mr QJLT has not met these children, and in his evidence he expressed recognition and resignation of the importance of never having contact with these children.
In these unusual circumstances notwithstanding that I have identified 8 grandchildren who are under the age of 18, I am satisfied to find that these children are not affected by the decision.
There are otherwise no minor children in Australia identified as being affected by the decision I am to make.
In these circumstances I find that this primary criterion is not relevant.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clauses 8.5(2) and (3) have particular moment in the circumstances of Mr QJLT’s case in circumstances where I have found his offending is very serious indeed, but there is a very low risk of repeat offending to the point that the protection of the Australian community is not served by visa cancellation. In this way, the fifth primary consideration recognises that the discretion to cancel a visa may still be exercised so as to cancel the visa even where there is no measurable risk of harm to the community.
Clause 8.5(2) identifies serious crimes against children of a sexual nature as crimes that give rise to the expectation on the part of the Australian community not to allow a perpetrator to remain in Australia regardless of whether the non-citizen poses a measurable risk of causing physical harm to the community. I consider that Mr QJLT is captured by these expressions of the expectation of the Australian community as enunciated by the Government through the Direction.
In written submissions addressing the protection of the community, Mr QJLT developed arguments relying on NBMZ v Minister for Immigration and Border Protection,[40] warning of the care that must be taken not to impermissibly make a deportation order [the term used in that authority] for the sole or substantial purpose of deterring others as it would impermissibly serve as punishment for a crime. In that case the approach of the Minister was criticised for failing to assess whether there was any risk at all to the community if the Applicant in that matter was granted a protection visa.
[40] [2014] FCAFC 38.
However, in my view, while the protection of the Australian community remains a primary consideration it does not follow that an appreciable risk of harm to the community must be present before the discretion can be exercised under the Direction to cancel the visa.
As explained by the Direction, visa cancellation provides for Australia’s exercise of its sovereign right to determine whether non-citizens of character concern are entitled to remain in Australia, and while it is true that the safety of the community is expressed to be the highest priority of the Australian Government, it does not necessarily follow that only in circumstances where there is a measurable risk to the safety of the Australian community that the power can be exercised.
Primary consideration 5, in my view, provides clearly in its terms for weight to be applied in favour of the cancellation of the visa where a non-citizen has committed very serious crimes, even where there is no measurable risk that the offending will be repeated. In addition to crimes of a sexual nature against children as is present in this case, see for example war crimes and crimes against humanity that may find moment in the fifth primary consideration even where there is no appreciable risk that such conduct would be perpetrated in Australia.
I consider that this much was observed by the Court in Jones. There are many similarities in the facts of that case to the present.
In that matter, the Court observed that the Minister (who had made that decision personally) was entitled to give significant if not overwhelming weight to the expectations of the Australian community that persons who had committed the offences that had been committed by Mr Jones should not be entitled to retain their visas.[41] This was in the context of the Minister’s finding that the risk of reoffending in that case was “low”.
[41] At [33] and [34]
Mr QJLT concedes that the expectations of the Australian community weigh against him, and the Respondent also submits this consideration weighs heavily in favour of cancellation. However, to merely accept these submissions (which I do) and move on without further analysis would fail to record the extent of reflection I have undertaken in relation to this consideration, given the seriousness of Mr QJLT’s crimes, albeit many years ago.
The fifth primary consideration, in the case of very serious offences such as sexual offending against children, is where the Direction provides for weight to be applied to denounce such conduct, as an expression of the expectations of the Australian community (as they are expressed to be by the Australian government through the Direction) in recognition of the serious nature of the conduct, even where highest priority of the protection of the Australian community may not be engaged where there is a very low risk of reoffending. I recognise that care must be taken in that regard, but note that Primary consideration 5 expressly provides for appropriate weight to be given to very serious crimes, even where there is no measurable risk that the offending will be repeated.
I accept the submissions of both parties that this primary consideration weighs heavily in favour of exercising the discretion to cancel the visa, and indeed have considered very carefully given the serious nature of the conduct whether the expectations of the Australian community in case of such serious offending should carry perhaps overwhelming weight.
After much deliberation, and as elaborated upon later in these reasons, I have concluded that the weight I have attached to this primary consideration in the overall evaluative task I am undertaking is very substantial indeed, but not ultimately overwhelming or determinative.
Other considerations
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[42]
[42] The Direction, paragraph 9.1.
While this consideration in Direction No 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under section 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[43]
·Refusal of other visa applications and cancellation of other visas;[44]
·A prohibition on applying for other visas;[45] and
·Periods of exclusion and special return criteria may apply.[46]
[43] Migration Act ss 189, 196, 197C, 198.
[44] Migration Act s 501F.
[45] Migration Act s 501E.
[46] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[47] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198.
[47] Migration Act s 15.
If the decision to cancel the visa is affirmed, Mr QJLT will continue to be detained under section 189 of the Act and will be removed from Australia to the United Kingdom as soon as reasonably practicable under section 198 of the Act.
While Mr QJLT has raised a number of significant impediments he will face if he is removed to the United Kingdom, he has not raised any matters purporting to engage non-refoulement obligations in respect of him. I note Mr QJLT has expressed concerns associated with the stigma of being a convicted child sex offender in the context of access to private rental accommodation, the attitude of social housing officers, and speculation that his removal might provide a basis for a media story and hence public humiliation and hatred. I do not interpret Mr QJLT’s references to these concerns as claims attempting to engage Australia’s protection obligations in respect of him.
Therefore, I am satisfied that the legal consequences of a decision to affirm the visa cancellation is that Mr QJLT will be removed to the United Kingdom and he will not face prolonged immigration detention.
Section 501E of the Act operates to very substantially restrict Mr QJLT’s ability to apply for another visa while in the migration zone. Furthermore, certain visas (indeed most classes of visa) are subject to special return criterion 5001(c) which provides for ‘permanent’ exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.
At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, I mention the decision of Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003 (Rano).
I understand that Rano has been appealed by the Respondent, but at the time of my decision it relevantly binds me. In that matter, the Court concluded that the Applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa…and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.
As the practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account. I attach no further weight to those matters under the ‘other’ consideration of ‘legal consequences’, but do recognise the way section 501E and special return criterion 5001 operate.
Extent of impediments if removed
I must take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country.
Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
- The Applicant’s age and health;
- Whether there are substantial language or cultural barriers; and
- Any social, medical and/or economic support available to the Applicant in their country.
Mr QJLT is 70 years old, and although he says in his statement (in 2020) that he intends to continue his work as an artist, I proceed on the basis that Mr QJLT is retired.
Mr QJLT’s written submissions refer to the diagnosis of a personality disorder in 2003 and a diagnosis of major depression and generalised anxiety disorder in 2020, the nature of which I have discussed elsewhere in these reasons.
I note the written submissions suggest that Dr Webster’s omission of the personality disorder in his 2020 report is likely explained by Mr QJLT no longer meeting the diagnostic criteria for a personality disorder, but I have noted Dr Webster’s reference in his report to underlying personality issues remaining unchanged, and his further elaboration in his oral evidence before the Tribunal.
The complex nature of the non-specific personality disorder Dr Webster spoke of during his evidence is not, by its nature, amenable to ‘cure’ but rather amenable to management and was described by Dr Webster as being relevant towards an explanation for the offending. I do not consider the references in the evidence to Mr QJLT having a personality disorder with the identified traits is material to understanding his state of health as potentially an impediment if removed. Having regard to the universal nature of the United Kingdom’s health system, I consider that Mr QJLT would be able to access whatever psychological support he would need should such intervention be required to assist him manage the traits identified by Dr Webster under the description of a non-specific personality disorder.
In relation to the diagnosis of major depression and generalised anxiety disorder, particularly as these conditions were identified by Dr Webster to be reactive to Mr QJLT’s predicament, I accept that these conditions will serve as an impediment in Mr QJLT establishing himself in the United Kingdom. I accept that removal to the United Kingdom would be a profound psycho-emotional shock that would be likely to exacerbate the symptoms that led Dr Webster to make that diagnosis in 2020.
However, I consider that Mr QJLT would be able to access mental health care services in the context of what is generally available to other citizens of the United Kingdom. I nonetheless recognise Mr QJLT’s major depression and generalised anxiety serves as an impediment if removed.
I am not satisfied that the conditions will amount to an inability to maintain basic living standards. The nexus between major depression, generalised anxiety disorder and the inevitable psycho-emotional shock of removal from Australia to the United Kingdom and the maintaining of basic living standards is not addressed in the evidence. In the context of the United Kingdom’s system of universal health care and social supports, I do not accept that Mr QJLT would be unable to maintain basic living standards in the context of his mental health diagnosis.
I note that I do not have evidence before me addressing any ongoing treatment or medication in relation to the mental health conditions referred to by Dr Webster.
I otherwise have no evidence before me identifying any health conditions that may serve as an impediment if removed, and refer again to the availability of universal health care for citizens of the United Kingdom in the United Kingdom.
In relation to language or cultural barriers, I note it is accepted on behalf of Mr QJLT that the language and culture of the United Kingdom is similar to that of Australia. I have noted Mr QJLT’s evidence of a period of living in the United Kingdom with Ms QJLT for a period prior to his offending coming to light. I do not accept that there would be any substantial language or cultural barriers per se, without diminishing the impediments that may arise through Mr QJLT’s mental health conditions or the matters addressed below.
In relation to social support, Mr QJLT explained in his evidence that he has a brother in the United Kingdom, but as his brother is now in his 80s, he does not think his brother would be able to offer him much support. Although his brother is involved in church, he does not think his brother would like to have him involved in his church. Mr QJLT predicts he would be on his own, and I accept that Mr QJLT would have limited social supports from family or friends in the United Kingdom. I note Mrs QJLT did not rule out visiting Mr QJLT, but pointed out she would face financial impediments.
I note that in his written statement, Mr QJLT wrote of his deep connection with Australia, and a profound sense of loss he would face if removed. Mr QJLT also wrote of his need for the support of his wife in navigating the British bureaucracy.
I accept that the absence of social support, in the sense of support from family and friends, would serve as an impediment to Mr QJLT if removed, particularly in light of my observations above concerning his mental health.
In relation to medical support, I have mentioned above that the United Kingdom provides for universal health care for citizens of the United Kingdom in the United Kingdom. I do not consider, in light of the availability of medical support in the United Kingdom, that the availability of medical support operates as an impediment if removed, in the context of what is generally available to citizens of the United Kingdom.
As to economic support, Mr QJLT contends that he will not be eligible for a British pension as he does not satisfy the eligibility requirements because he has not worked in the United Kingdom for 10 years. The Respondent accepts that to be the case.
In written submissions, Mr QJLT expresses the view that he will be able to continue to receive the Australian age pension under the portability provisions of the social security law,[48] and that appears to be correct. Mr QJLT has calculated that his receipt of the Australian pension in the United Kingdom will have him living at the poverty line in the United Kingdom. I note Mr QJLT has disclosed superannuation resources of $25,000.
[48] In this regard, and generally speaking, Australian residency is required to lodge a claim for Age Pension, but ongoing qualification for the Australian age pension requires 10 years ‘qualifying Australian residence’ and does not require ongoing Australian residency: section 43 Social Security Act 1991.
I accept that Mr QJLT will be required to subsist on a low income in the United Kingdom, reliant on his Australian age pension and limited superannuation resources. I have also taken into account the submission that there is a long wait for social housing in the United Kingdom, but I do not accept that Mr QJLT will face discrimination in that regard on account of his offending history, although I understand why he may speculate in that regard.
As I accept that Mr QJLT would continue to receive his Australian age pension in the United Kingdom, I do not consider that Mr QJLT will have no access to economic support, or such limited access as would amount to an impediment if removed in maintaining basic living standards.
Overall, as to impediments if removed however, I accept that the absence of social supports in the United Kingdom for Mr QJLT and the likely impact of removal on his mental health given his existing diagnosis amount to significant impediments that would affect his ability to establish himself. These considerations weigh against cancelling the visa in my view.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
It was confirmed on behalf of Mr QJLT at hearing that this consideration is not engaged in his circumstances. I find that there are no Australian businesses that will be impacted by a decision to cancel Mr QJLT’s visa.
CONCLUSION
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said:
‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[49]
[49] [2023] FCAFC 138, [23].
I find the guidance from the Court at paragraph [38] is particularly instructive, albeit framed in the context of the legislative test applicable to revoking decisions to cancel visas rather than deciding whether to exercise the discretion to cancel a visa:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
It is in light of these remarks, that my finding that there is a very low risk of Mr QJLT reoffending and the consequential conclusion I have reached that the protection of the Australian community is not therefore served by cancelling the visa is not determinative. Referring again to my considerations in relation to the expectations of the Australian community, I consider that there will be circumstances where following the process of weighing and balancing the expectations of the community as expressed in the Direction will be so weighty that they may ultimately prove to be determinative.
I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction. I recognise that greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[50]
[50] Ibid [27].
In the circumstances of this case I have concluded that exercising the discretion to cancel the visa would not serve a purpose protective of the Australian community because the risk of Mr QJLT reoffending is so low that it may be safely disregarded. It does not weigh in favour of cancelling the visa. The focus within that consideration on the seriousness of the offending however finds its voice (in the circumstances of this matter) in the fifth primary consideration: the expectations of the Australian community. I consider that consideration weighs in favour of cancelling the visa, and does so very substantially. The nature of Mr QJLT’s offending as family violence also attracts weight in favour of cancellation on balance.
However, and on balance as a product of the overall evaluative task I am to undertake, I consider that the strength nature and duration of Mr QJLT’s ties to the Australian community, recognising that Mr QJLT arrived in Australia as a child and has lived essentially the entirety of his life to retirement in Australia, also carries very substantial weight. Likewise, the impediments Mr QJLT would face if removed also weigh against cancellation.
I consider that my assessment as to the protection of the Australian community not being served by the cancellation of the visa allows for me to safely and confidently permit the weight of those matters weighing against visa cancellation to fall.
The outcome in this matter is finely balanced, with the expectations of the Australian community as expressed through the Direction give me substantial cause to hesitate. Ultimately however, the result of the overall evaluative task I have undertaken is that I will not exercise the discretion to cancel the visa.
DECISION
The decision to cancel the visa under subsection 501(2) of the Act is set aside and substituted with a decision that the visa is not cancelled.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Kennedy
.............................[SGND]......................................
Mirzaiei S, Associate
Dated: 13 June 2025
Date of hearing: 30 May 2025 Advocate for the Applicant:
Mr S Sharify and Mr B Watt
Advocate for the Respondent: Mr T Qian
0
15
0