QLPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 1151

QLPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1151 (16 May 2024)
Division:GENERAL DIVISION
File Number:2024/1414
Re:QLPC
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:16 May 2024
Place:Adelaide

The decision under review is affirmed.
..............................[sgnd]..........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) where Applicant does not pass the character test– Applicant committed a sexually based offence involving a child – accessing child abuse material using a carriage service – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Spent Convictions Act 1988 (WA)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
16 May 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 22 February 2024, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”). His visa was cancelled on 6 July 2023 under section 501(3A) on the basis that he did not pass the character test.
Section 501(6)(e) provides that a person does not pass the character test if in a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
Direction 99 explicitly refers to “possession or distribution of child pornography” as being as sexually based offence involving a child.[1]
[1] Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA s 7(2)(c).
The Applicant fails the character test on the account of “accessing child abuse material using a carriage service” and he was sentenced to 10 months of imprisonment.[2] He was ordered to serve 3 months imprisonment before being released on a recognisance order for the remaining seven months.[3]
[2] Exhibit 2, G-Documents, Attachment A: National Criminal History Check, 39.
[3] Ibid; Attachment B: Sentencing remarks of the District Court of Western Australia, 56.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held by way of Microsoft Teams on 7 May 2024. The Applicant was self-represented, and the Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore.
The Applicant gave evidence from Yongah Hill Detention Centre in WA. He generally presented as a good witness. He was courteous and concise. He generally gave appropriately responsive answers to questions. He did not seek to avoid uncomfortable topics, or to trivialise his offending behaviour. He made appropriate admissions and generally recounted events in a manner consistent with police records.
The Applicant was, however, somewhat evasive on certain topics, for example, about the nature of his current relationship with his former partner M.C. He tried to suggest or imply that a de-facto relationship was still ongoing with M.C. He said that they were ‘engaged’ in his Personal Circumstances form.[4] I do not accept this to be the case. His claims elsewhere varied from ‘in a relationship’, to ‘on and off’”, to ‘it was a relationship but it wasn’t a relationship in a way’.
[4] Ibid Attachment E: Personal Circumstances Form, 77.
The Applicant said that he was coparenting Child A with M.C. I accept that he has contributed to the parenting of Child A, since their separation in 2020.
He was also misleading, if not untruthful in his explanation for his parting company with the Mongols bikie gang. This is discussed below.
The Applicant did not call any witnesses. It would have assisted the Tribunal if M.C had been called. No explanation for this omission was offered.
Background Facts
The Applicant was born in 1993 in New Zealand.[5]
[5] Ibid Attachment D: Request for revocation form, 68.
His personal history was troubled, his childhood was unsettled. He was exposed to violence and was involved with criminal gangs involving family members throughout his formative years. He told the Tribunal that for him this was “normal”. He says that he has now realised that it was anything but normal.
His mental health has been an ongoing issue. He told the Tribunal about suffering from anxiety and depression. He mentioned having suicidal thoughts. This is set out below in some detail, in the sentencing remarks of Massey DCJ.[6]
[6] See para [63].
The Applicant has, by his own admission, been a heavy, poly-drug abuser. He has also abused alcohol. He said that he did this to manage his anxiety.
The Applicant attended several primary schools. His behaviour at school is described as ‘disruptive’.[7] The Applicant attended high school in New Zealand, but he left before the final year, at the age of 17.
[7] Exhibit 2, G-Documents, Attachment B, 48.
The Applicant then worked in carpentry[8], at a meatworks and doing furniture removal, before arriving in Australia.
[8] Ibid.
On 6 May 2015, the Applicant arrived in Australia.[9] He was by then, almost 22 years of age.
[9] Ibid Attachment J: Movement History, 112.
The Applicant worked in the [redacted] meatworks, Western Australia, from May 2015 to June 2015.[10]
[10] Ibid Attachment E: Personal Circumstances Form, 84.
From June 2015 until his recent incarceration, the Applicant has worked as a scaffolder in the mining and construction industry, on a fly in fly out (FIFO) basis with various employers.[11] He told the Tribunal that he has been generally employed, earning between $90,000 and $110,000 gross per annum. He told the Tribunal that he was fired from one job due to alcohol abuse and not turning up for work. He was fired from another job for failing a drug test.
[11] Ibid.
In about June of 2016, the Applicant commenced a relationship with M.C.[12]
[12] ibid Attachment E: Personal Circumstances Form, 77.
On 7 February 2017, the Applicant left Australia for 11 days to visit his grandfather in New Zealand.[13] He was close to his grandfather, whom he regarded as the main supporting adult in his life.
[13] Exhibit 2, G-Documents, Attachment J: Movement History, 112.
On 16 February 2017, the Applicant returned to Australia.[14]
[14] Ibid.
On 16 May 2017, the Applicant left Australia for 5 days, to attend his grandfather’s funeral in New Zealand. His grandfather had died unexpectedly from a heart attack.[15]
[15] Ibid.
On 21 May 2017, the Applicant returned to Australia.[16]
[16] Ibid.
The Applicant told the Tribunal that his relationship with M.C has always been ‘on and off’. It became “rocky” after his grandfather passed away. He also described his behaviour towards M.C as “selfish”.
In 2017, the Applicant became associated with the Bandidos Motor Cycle Gang. He told the Tribunal that his partner, M.C, was “not fond of the idea of him being a bikie.”
This period appears to have also corresponded with the Applicant starting to abuse various drugs. He mentioned cocaine, ecstasy, MDMA, methamphetamine and alcohol. He told the Tribunal that this consumption continued with increasing intensity, until around the time of his arrest in July 2022.
The Applicant told the Tribunal that he was spending between $1,500 and $5,500 per week on drugs and alcohol. He was “snorting” up to an ounce of cocaine per week. He was only ever sober when he was around his daughter or flying back to work. The picture he painted to the Tribunal, was a chaotic one of recklessly indulging in drugs and alcohol, often to the point of oblivion.
The Applicant told the Tribunal that he initially drank 2 - 3 times in a month, when he came back from his FIFO job. However , his alcohol consumption got ‘a lot worse’ in 2018 - 2019. He was drinking at work and every day when he got home from work. He said that he would “keep drinking so anxiety wouldn’t hit me”. He would look for fights when drunk. In 2017 or 2018 he was banned from the Crown Casino (WA) for 65 years for fighting. He could not remember any of the details.
On 14 October 2017, the Applicant was involved in disorderly conduct with several other men. These were his bikie friends. He was not charged with any offence, though others were.[17]
[17] Exhibit 3, Respondent’s Tender Bundle, 13.
On 21 October 2017, the Applicant left Australia for 8 days to visit Bali, Indonesia.[18]
[18] Exhibit 2, G-Documents, Attachment J: Movement History, 112.
On 29 October 2017, the Applicant returned to Australia.[19]
[19] Ibid.
On 10 February 2019, the Applicant assaulted a stranger whom he had wrongly blamed for punching him in the back of the head. The statement of material facts states:
“Around 10.36PM on Sunday 10 10 February 2019, both were drinking socially at ‘The Lookout’, Scarborough. Prior to this incident, they were unknown to each other.
Immediately prior to this incident, the accused was in a short verbal altercation with another male (unknown at this time) before he turned his back to walk away. The complainant, seeing the altercation moved in to separate the pair.
The unknown male punched the accused once to the back of the head, causing him to stumble forward. Once he regained his footing, the accused turned around and using a clenched fist, punched the complainant once to the face causing the complainant to fall to the ground and lose consciousness for a few seconds. As the complainant was going to the ground, the accused has thrown two more punches at the complainant (unknown if they connected).
As a result of this the victim received a laceration above his left eye and a swollen left cheek bone. The victim lost consciousness for a short period of time and was later conveyed by an ambulance to hospital for medical treatment.
Security staff from the premise intervened and Police attended, arresting the accused as a suspect for the preferred offence.
The accused was conveyed to Scarborough Police Station where he participated in an Electronic Record of Interview making admissions to punching the complainant, thinking it was him who had punched him in the back of the head.
Upon being told he had punched the wrong person, the accused showed immediate remorse for his actions and asked on the complainant’s condition.
The accused was charged with the preferred offence and released on conditional bail.
The accused in this matter is 25 years of age and medium build. The complainant is 31 years of age and of solid build.”[20]
[20] Exhibit 3, Respondent’s Tender Bundle, 3.
The Applicant told the Tribunal that he had been drinking with a “few mates from the Motor Cycle Club”. He accepted that he had assaulted the wrong man. He agreed that he had been involved in a lot of aggressive conduct involving fighting. He could not recall how many fights he had been in. He described “being drunk, acting out and being an idiot”. He said that he cannot handle alcohol.
On 1 March 2019, the Applicant was charged with assault occasioning bodily harm in Perth Magistrates Court. He was fined $2,000 on this account.[21] The record of the proceedings before Magistrate Hall state that he was fined $2000 but he was granted a spent conviction.[22]
[21] Exhibit 2, G-Documents, Attachment A, 39.
[22] Exhibit 3, Respondent’s Tender Bundle, 112.
I have had regard to s 501(10) of the Act, and to the provisions of the Spent Convictions Act 1988 (WA). I am satisfied that the effect of that order was not such as to quash or otherwise nullify the conviction. The Applicant’s criminal conduct and his conviction for assault occasioning actual bodily harm, are matters of fact.
The Applicant told the Tribunal that at about this time he cut his ties with the Bandidos after “he caught up with a guy who patched over” to the Mongols Motor Cycle Club. He became an associate of the Mongols. He was not a full member, but he was a “prospect” socialised with them and was “getting a reputation”.
On 18 May 2019, police records indicate that the Applicant was involved in family violence against M.C who was at that stage, 19 weeks pregnant. The record states:
“The victim (who is 19 weeks pregnant) and the suspect have been in a relationship for 3 years. the suspect always goes out by himself on a Friday night and catches up with mates and friends. The suspect has come home after 0500hrs and started making noises and woke the victim up.
The victim has asked the suspect to stop making noise and let her sleep, The suspect became angry and aggressive at the victim and tipped up the lounge and threw the [rugby] ball at her hitting her in the back.
The victim has then gone into the bathroom to get away from the suspect. The suspect has then picked up a plastic tub of spaghetti and thrown it at the victim hitting her on the bridge of the nose. This left a small mark on her nose.
The suspect has kicked the glass shower screen off the hinges (did not break the glass) The suspect left the unit prior to Police arrival however was arrested a short distant away in the park.
72hr Police Order [number] was issued.
FV history with other parties - N
Previously breached PO/FVRO/Bail - N
Perp criminal history - 1 for AOBH where he glassed a male at a bar
Any worker safety issues - Possibly an Eastern States Bandido member however no evidence found on Police databases
Willingness to engage with support -
Primary Aggressor - QLPC
How does Perp externalise/rationalise behaviour - Blames her for spending all of his money
Types of abuse identified/reported - Physical and verbal.”[23]
[23] Exhibit 3, Respondent’s Tender Bundle, 15-8.
The Applicant accepted the account as set out. He accepted that M.C. was frightened.
A restraining order for a period of 72 hours was made to protect M.C. The terms of the order were as follows:
“THE PERSON BOUND SHALL NOT:
* communicate or attempt to communicate by whatever means with the person protected by this order,
* enter or remain upon [redacted] Street, PERTH or any other premises where the person protected lives or works or be within metres of the nearest external boundary of such premises,
* approach or remain within 10 metres of the person protected,
* cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order,
[24] Ibid 20.
This Order will expire at 06:00 am on Tuesday 21.05.2019.”[24]
On 30 July 2019, the Applicant left Australia for 5 days to visit Bali, Indonesia.[25]
[25] Exhibit 2, G-Documents, Attachment J, 112.
On 4 August 2019, the Applicant returned to Australia.[26] He failed to declare his previous criminal offending on the incoming passenger card.[27] He provided a reason for this failure, which states: “I had been given a discharge without conviction as it was a first offence and it was not a serious offence… I was punched in the back of the head by a guy…. I accidentally punched the wrong guy back…”.[28]
[26] Ibid Attachment J, 112.
[27] Ibid Attachment I: Incoming Passenger Card (dated 04.08.2019), 108.
[28] Ibid Attachment I1: Emails between the Applicant and the Department of Home Affairs, 109, 111.
I accept this explanation, given his spent conviction.
In 2019, the Applicant’s daughter, Child A was born. She is now aged 4 ½ years.[29]
[29] Ibid Attachment E, 78.
The Applicant told the Tribunal that he separated from M.C. in about 2020 due to his “selfishness”. He left their home at that time. He did not see her “for a long period”.
They have not returned to live together since. He has however continued to make financial contributions to assist in the support of Child A and he has had ongoing contact with her. He is what might be described as a contributing co-parent, but certainly not a primary care giver.
It was evident when the Applicant spoke about Child A, that he is genuinely interested in being a present and positive influence in her life.
There was no suggestion however, that the Applicant would return to live with M.C if he were to be returned to the community.
The Applicant says of his relationship with Child A:
“I spent every day with my child, even when at work as I worked fly in fly out to the mines, contact with my child was every day.
As I sustained a strong bond with my daughter I am always a part of everything that my daughter does, since I spent time in jail my daughter has been asking my partner when are we picking up daddy, I miss Daddy. When daddy comes home can we have a tea party. As that was what I did with my daughter as brought a big kitchen set as my daughter likes to pretend to cook food for me and my partner that we pretend to eat.
At the moment she doesn’t know as she is only 3 years old but she does ask my spouse where’s dad, when is dad coming home. Can we pick daddy up from choo choo train, as that was how I use to get from work. If I deported it would place a big toll on my daughter as I would be absent and unable to be the father she needs and deserves while growing up.”[30]
[30] Ibid 79.
On 25 January 2021, the Applicant was stopped by police when driving. A breath analysis test revealed 0.114 grams of alcohol per 100 ml of blood. It was also discovered that he did not have a driver’s license and had never held one.[31]
[31] Exhibit 3, Respondent’s Tender Bundle, 6.
On 26 March 2021, the Applicant was charged with multiple offences including no authority to drive and exceed 0.08g alcohol per 100 ml of blood. He received multiple fines and was disqualified from driving for 8 months.[32]
[32] Exhibit 2, G-Documents, Attachment A, 39.
On 13 June 2021, the Applicant was again stopped by police and found to be driving without a license.[33]
[33] Exhibit 3, Respondent’s Tender Bundle, 7.
On 17 August 2021, the Applicant was charged with driving while disqualified. He was disqualified from driving for a further 9 months and was fined $400.[34]
[34] Exhibit 2, G-Documents, Attachment A, 39.
On 19 April 2022, a telecommunications warrant was taken out on the Applicant’s phone.[35]
[35] Ibid Attachment B, 43.
On 2 June 2022, telephone interceptions showed the Applicant accessing child abuse material over internet browsers, specifically around 200 category 1 and 2 images.[36]
[36] Ibid Attachment B, 43; Exhibit 3, Respondent’s Tender Bundle, 11, 186-9.
On 23 June 2022, detectives from the Joint Anti Child Exploitation Team executed a search warrant at the Applicant’s address and seized his mobile phone. The Applicant subsequently made admissions regarding accessing child exploitation material and then deleting it. The Applicant admitted having accessed this material for a couple of years. He said that he knew that it was wrong, but he couldn’t help himself.[37]
[37] Exhibit 2, G-Documents, Attachment B, 43.
The Applicant told the Tribunal that he started seeking out bestiality material and it would lead to child pornography. He did not access the “dark web”. He accessed it “every now and then” if he had been on a “long bender”. It became more frequent in 2022. He was drinking alone and drinking a lot. He had suicidal thoughts but could not bring himself “to do it”. He admitted to struggling with the urge to view this material.

Police also found a prohibited weapon, namely a Gel Blaster. The Applicant told police that he knew that it wasn’t legal to possess it.[38]
[38] Exhibit 3, Respondent’s Tender Bundle, 8.
On 24 June 2022, the Applicant was charged with possessing a prohibited weapon. It appears that no conviction was recorded. However, he was fined $500 on this account.[39]
[39] Exhibit 2, G-Documents, Attachment A, 39.
The Applicant told the Tribunal that he left the Mongols after he was arrested in July 2022. He said that he was punished by the gang for leaving. He said that he was “fined and bashed up and they took my motorcycle”.
This explanation is materially different to the one previously given to the sentencing Judge by the Applicant’s counsel. That was “It’s put to me you’ve been assaulted by members of your former motorcycle club as a result of your commission of this offence”. In other words, he didn’t voluntarily leave the gang, they expelled him. He was punished not for leaving, but was expelled because of his child pornography offence.
A police report dated 1 July 2022 suggests that the Applicant may have been a target for an outlaw motorcycle gang upon his release from Hakea Prison on bail.[40]
[40] Exhibit 3, Respondent’s Tender Bundle, 33.
On 23 May 2023, the Applicant was convicted of using a carriage to access child pornography material. He was sentenced to 10 months imprisonment. He was required to serve a 3-month full time sentence but he could be released on recognisance order for the seven months remaining.[41] His sentence was back dated to 15 May 2023.[42]
[41] Exhibit 2, G-Documents, Attachment A, 39; Attachment B, 55.
[42] Ibid Attachment C2: WA Department of Justice: Sentence Summary (offender) report, 67.
On 26 May 2023, a High-Risk Serious Offenders (HRSO) Act Liable referral was created for the Applicant and he was made aware of the HRSO Liable alert and its possible impact.[43] The Applicant told prison authorities that he had been a “Prospect” in the “Mongols” OMCG until about 6 months ago. He said that he was currently in “bad standing” with the gang. He also reported a history of self-harm.[44] He described M.C as his “ex-partner”. He also confirmed that he was not a primary care giver of any adult or child 6 months before imprisonment. He was placed in Acacia Prison due to his previous gang association.[45]
[43] Exhibit 3, Respondent’s Tender Bundle, 91.
[44] Ibid 92.
[45] Ibid 94-5.
The particulars of the offending are set out in the sentencing remarks of Massey DCJ. The offending is described by His Honour as “serious”. He said:
“……………..
And I’m sure you don’t need me to tell you that offences of this type are serious. The Crown have said in its submissions that the cases show ordinarily a term of immediate imprisonment is imposed for offences of this type. These offences aren’t victimless crimes. Those who are prepared to access child abuse material fuel the demand for it and they encourage the corruption and exploitation of children and all the misery that that entails, as well as the long-lasting effects on those children.
Anything other than a term of immediate imprisonment is exceptional. The seriousness of your offending is reflected in part by the maximum penalty that applies. The maximum penalty for the offence to which you have pleaded guilty is one of 15 years' imprisonment and/or 900 penalty units or $199,800.
Section 16C(1) of the Crimes Act says I need to impose a sentence which is of a severity appropriate in all the circumstances of the offence.
One of the things I do have to take into account pursuant to section 16C of the Crimes Act is the nature and circumstances of the offence. Your offending in count 2 happened on four occasions on the same day. Your offending could not therefore be said to be a one-off although it does appear to be all part of the one browsing session. It shows an element of persistence in your offending. The type of material accessed by you is also aggravating in my view, given it was mostly category 1 images with a few category 2 images. Real children were depicted in degrading acts, some with semen on their skin and being penetrated by adult males.
I viewed a sample of the images. As I said, I'm not going to go through them all ……………
I'm told by your lawyer that you were seeking out bestiality material and you suggested to the author of the psychological report that you view the images as they related to bestiality. As I said to Mr Holmes, while that may or may not be correct in relation to your initial viewing of the child abuse material it’s clear from the nature of your interview that you’d moved past it, being an incidental interest to bestiality to where it had become an interest in its own right.
That explanation doesn’t, in my view, adequately explain either that viewing on 2 June or the fact that you then chose to look at the material another three times or access another three websites that same day. You also said you would often be intoxicated when accessing the material.
That may well be the case but I don’t regard either of those explanations, namely the intoxication or the accessing bestiality as in any way lessening the seriousness of your offending. The names of the websites you were accessing clearly would have forewarned you there was a real risk that child abuse material would be on those websites. You should also have been aware of your tendency to access the material when intoxicated and done something to prevent that. Given the nature of your admissions to police this is clearly not the only occasion on which you accessed this sort of material. You told police you’d accidentally stumbled on it years ago. You said you accessed it every now and again, which you later clarified to be once in a blue moon. You also described it as something you struggled with and clearly demonstrated you knew it was wrong but were, in effect, not able to help yourself. I'm not sentencing you for anything other than the images the subject of the charge but that other conduct described by you does demonstrate that your offending wasn’t isolated on 2 June 2022. It’s also suggested in the psychological report that you denied sexual arousal with respect to the images. I don’t accept that you had no interest in it in its entirety. It’s clear from the way in which you describe the circumstances of your accessing the material, the struggles you say you had with it, you tried to fight it but weren’t, in effect, able to help yourself, that you had a real interest in viewing this material. Whether that interest, as I said to Ms Zerafa, was a sexual interest or whether it was an interest in the forbidden nature of the material, that it was taboo perhaps or some other interest, that’s not something I can determine but it’s clear that you had an interest of some sort in accessing the child exploitation material. One thing I do take into account is you were not in possession of any child pornography when the police arrived. You’d deleted the material. You told police you did make a habit of deleting that sort of material. You also hadn’t distributed the material. You didn’t use any encryption on your mobile telephone. You voluntarily volunteered the pass code to the police on your arrest. You didn’t use the dark web or anything to disguise your access. Mr Holmes has described it as being a pretty unsophisticated accessing of this sort of material, which I accept it was.
The number of images, whilst significant isn’t particularly large. There’s certainly nowhere near the number of images detailed in a number of the other cases to which I've been referred. When I take into account all those matters I don’t consider this offending to be near the top end of the range of seriousness of offending of this type.
I would put it somewhere perhaps below the mid-range of offending of this type, but that isn’t to say that the offending isn’t serious. It’s certainly not at the lower end of the range of seriousness. Taking into account all matters your offending was serious, but it couldn’t be described as being the worst case of its type.
I’ve read all the reported provided to me as I said to Mr Holmes and the pre-sentence report says you accept responsibility for your offending and are able to articulate causal factors. It also says that should you be afforded the opportunity of a court order, psychological counselling is available.
It also gives me useful information on your background including your association with motorcycle clubs and says you haven’t previously been subject to a period of community supervision. The psychological report says you have a significant history of trauma in your background.
You’ve been exposed to extreme antisocial behaviour. It says psychological testing indicated you have a tendency to describe yourself in negative ways which suggests you struggle with feelings of emptiness, anger and you could be self-destructive and feel tense, guilty and depressed.
Your anxiety scale is significantly elevated. And it’s suggested you have a depressive personality with passive aggressive and dependent traits and it says the results suggest you’re crying out for help. The report also says you denied arousal to the images.
Ms Sweeny says that your reports to her suggest a poor attachment to your mother, rejection, parental issues or substance use and that you were a witness to serious violence and gang-related behaviour from a young age.
She says you clearly struggle with feelings of abandonment and hurt and that you have problems in relation to self-awareness, stress and poor coping and significant problems stemming from your childhood. She says there are clear issues around substance use, violent or suicidal ideation and your mental health.
She says you would benefit from psychological counselling to manage depression, stress and suicidal ideation as well as support to manage abstinence from certain substances, improve your emotional regulation, management skills, relationship skills and sexual arousal.
She says a possible scenario is your anxiety could lead you to turn to online pornography to cope which might then progress to exploration of bestiality and child exploitation material. She says your offending appears linked to excessive substance use, high sex drive and preoccupation with sex.
And that all of those factors are your way to cope with distressing emotions and thoughts stemming from your early childhood and continue into adulthood and your negative peer associations. Now, one of the matters which section 16A of the Crimes Act says I must take into account is your personal circumstances.
You’re now 29. You were 28 at the time of this offending. You were born in New Zealand. You’re the only child from your parents’ relationship. Your mother had another six children following your birth. Your father already had another four children. You were brought up without your father.
Your mother had a number of other partners, but she was mostly absent throughout your life and you were raised in effect by your maternal grandparents. Your grandparents were prosocial, but all of your uncles were involved in gangs in New Zealand and had issues with drugs. You’ve said gang culture was very much part of your community.
You went to a number or primary schools. You were disruptive at school. You were suspended on a number of occasions. You completed high school notwithstanding that at the age of 17 and then worked in carpentry. You were involved in the gang culture in New Zealand yourself.
You came to Western Australia in 2015. In Western Australia you’ve worked in the meatworks in [redacted] and then on a fly in/fly out basis. You’re currently working on a casual basis in scaffolding. I’m told that you’re transitioning into fulltime employment in that industry and you do have a qualification in scaffolding.
You have a three-year-old daughter. I’m told you’re in a coparenting arrangement with her mother. You’re not in a relationship with her or with anyone at the moment and I’m told that the mother of your child is aware of this offending. You’ve had issues with drugs including cannabis as well as alcohol.
You began using cocaine in 2018 and say you’ve now stopped using drugs. There are other matters mentioned in section 16A to which I must have regard. The first of those is your plea of guilty. Your plea of guilty was entered in the Magistrates Court and I’m satisfied that you entered it at the earliest reasonable opportunity.
It was entered prior to any committal mention date. Pursuant to section 16A(2)(g) of the Crimes Act, one of the factors I must take into account is the fact of your plea of guilty, the timing of the plea and the degree to which that fact and the timing of the plea resulted in any benefit to the community or any victim or witness to the offence.
Apart from the saving to the community and the avoidance of the need for witnesses to attend court, the Commonwealth have also secured convictions and you’ve demonstrated a willingness to facilitate the course of justice. In all those circumstances, I am satisfied your plea of guilty has significant utility. It was entered in my view at the first reasonable opportunity.
It could, of course, be said that the case against you was a very strong case, but that in part was because of the admissions you made to police which reflected your remorse. In my view, your plea of guilty should attract a significant discount and I’m therefore going to discount the sentence I would otherwise have imposed on you by 25 per cent for your plea of guilty.
Another matter relevant to this sentencing is your remorse or contrition. I am satisfied you are remorseful for your conduct. You expressed that remorse appropriately to the author of the pre-sentence report and psychological report and you were clearly remorseful during the interview with the police at the earliest real opportunity that you could be.
This isn’t belated remorse. You also cooperated with the police which I’m satisfied demonstrates further the extent of your remorse. So I do take your remorse into account as a mitigating factor as I also take into account your cooperation with the police which is another factor mentioned in section 16A.
You made full and frank admissions to the police and those admissions extended as I said to voluntarily providing police with access to your telephone which obviously made the investigative task run more smoothly. So I give you credit for your cooperation.
I also have to take into account your character, antecedents, age, means and physical and mental condition. I’ve already dealt with your antecedents. You do have a previous criminal record. It’s not extensive. It does have a conviction of assault on it.
I also have your admissions of being involved in the gang culture both here and in New Zealand, so I can’t find you’re a person of prior good character. I’ve already detailed your mental condition and antecedents. In terms of your mental condition, you do suffer from anxiety.
You do have a history of trauma which I am satisfied is caused from your childhood. That upbringing may have made your progression to the gang culture as well as your use of drugs more normalised. And you clearly need as I said to Mr Holmes ongoing assistance to deal with those issues.
I do take into account issues relating to you stemming from your childhood. I am satisfied the combination of anxiety issues stemming from the trauma you suffered as a child has resulted in you seeking out problematic ways to self-soothe. I do take that into account in the sentence I impose.
Turning next to your prospects of rehabilitation. As I’ve said, I’m satisfied you’re remorseful for you conduct which speaks to your prospects of rehabilitation. You clearly knew your conduct was wrong. I’m satisfied you have some insight into the wrongfulness of your offending and you have a job.
And all those things are protective factors which guard against re-offending. However, you do have issues about which I have already spoken. They’re detailed in the psychological report. You do as I said to Mr Holmes need ongoing counselling to deal with issues stemming from your childhood.
Because otherwise those sort of things when you hit traumatic periods in your life which everyone goes through may lead to you going back to firstly drinking and then accessing the sort of websites that you’ve been accessing. I’m told you haven’t engaged in any counselling up until now.
To some extent that may be because you tend to bury your head in the sand in respect to these issues. We adjourned one sentencing previously because of that tendency. It may also be because you’re embarrassed, ashamed about these things and don’t want to talk about them.
It may be because you just simply hope that they’ll go away. But without undergoing those sort of programs, I think that there is a risk of re-offending for the reasons that Ms Sweeny spoke about, namely that you do tend to seek out this sort of behaviour to deal with issues from your childhood.
She says that your offending stems from your attempts to cope with distressing emotions and thoughts stemming from your early childhood. It just seems to me unless you get those issues under control, then there is that risk of reoffending and I would urge you to do the counselling that you say that you now want to do.
And perhaps the fact that your former partner is herself doing counselling in respect to your involvement in these issues may assist you in that regard. I would describe your prospects of rehabilitation as reasonable with those caveats, but you do need that ongoing assistance.
Other matters which I need to take into account include the deterrent effect that any sentence or order under consideration might have on you and the deterrent effect that any sentence or order under consideration may have on other persons as well as the need to ensure you’re adequately punished for the offence.
I’m satisfied there is a need for personal deterrence with respect to you, but that need is somewhat lessened. It’s put to me you’ve been assaulted by members of your former motorcycle club as a result of your commission of this offence. I don’t have any evidence of that apart from your say so and therefore can’t take it into account.
It's also put to me your time in custody will be more onerous because of the prospects of being targeted by your motorcycle club. That may well be the case but as I said to Mr Holmes, that sort of targeting by other prisoners against those who commit this sort offending is not specific to you.
It might be regrettable, but it’s often done to those who are convicted of these sorts of offences. I am also, however, satisfied that prison authorities have procedures in place to ensure that the prospects of reprisals are minimised and I therefore don’t regard any time in custody you might spend as any more onerous than others who are convicted of this type of offending.
But I am satisfied the need for personal deterrence of you is somewhat lessened because of your contrition and because of your insight into the seriousness of your offending. I can see from your presentation today that you are deeply ashamed of this sort of offending and the fact that it’s ended up with you in this very public forum being sentenced in this way.
That’s not to say there’s not a need for personal deterrence, but simply to say it’s lessened because of those factors. I am, however, satisfied there is a need to deter others in the sentence I impose on you. This sort of offending encourages the exploitation of children and the misery and harm caused to those children.
As a result of being compelled to engage in this sort of behaviour, a sentence needs to be imposed which sends a message that this sort of offending will be visited by severe consequences. One of the other issues I need to resolve is whether or not your offending is motivated by a sexual interest in children.
The Crown in their written submissions say that your offending was sexually motivated although you don’t have a sexual interest in children or in real children or in committing sexual offences against children. I accept that you had an interest in the child exploitation material as I said.
But I can’t go so far as to say that you had a sexual interest in children by virtue of your offending or that you were sexually aroused by what you viewed. The Crown accept you don’t have a sexual interest in children in the sense that you’re likely to offend against a real child and I do accept that.
I also need to take into account the probable effect that any sentence or order under consideration would have on any of your family or dependants. You do have a three-year-old child. I’m told you coparent with your former partner in the care of that child.
Clearly you’re an important person in your child’s life. I have no evidence before me that your child’s care will be negatively affected by any term in custody. It would appear that your former partner is available to care for your child.
While I’m prepared to accept that separation from your child will be harmful to the relationship you have with your child and will affect your child in a very negative way, those things are not so exceptional as to justify any significant reduction in sentence.
Now in terms of the sentence I must impose on you, I’ve already referred to section 16A(1) which requires me to impose a sentence that is of the severity appropriate in all the circumstances of the offending. This offending is extremely serious.
Your counsel’s conceded imprisonment is the only option available to me, but says that any term of imprisonment should be such as to ensure that you don’t spend any actual time in custody. Your counsel says that the circumstances of this offending are exceptional so as to justify that unusual disposition.
Section 17A(1) says I should not pass a sentence of imprisonment on you unless having considered all other available sentences I’m satisfied that no other sentence is appropriate in all the circumstances of the case.
I’m of the view that notwithstanding what I’ve already said about your mental health issues, about the need for personal and general deterrence that imprisonment is the only appropriate sentence because of the seriousness of your offending.
Those who possess or disseminate child exploitation material help fuel the demand for it and deterrence is required to protect children from sexual abuse. The sentence I intend to impose is 10 months’ imprisonment. It’s put to me I could order you be released immediately on a recognisance release order. It’s put to me your circumstances are exceptional and that would warrant that sort of disposition.
It’s put to me your assault by other members of your motorcycle club and the prospect of reprisals while in in prison justify a sentence which ensure you don’t serve any term immediately. I’ve already detailed my findings in respect of those issues.
One of the decisions to which I’ve had regard was Cluett v The Queen [2019] WASCA 111. In that case, the Court of Appeal acknowledged as, of course, in a number of other judgments referred to me that the imposition of a sentence other than immediate imprisonment in these type of cases is as a matter of fact exceptional.
As Mr Holmes has pointed out on your behalf, that doesn’t mean that it’s ever inappropriate to impose a sentence other than immediate imprisonment. Mr Holmes maintains again that this is one of those exceptional cases where it’s not necessary to order that any part of a term be ordered to be served immediately.
Ultimately though, I can see nothing for the reasons I’ve stated that it is exceptional or so exceptional in your circumstances that would justify ordering anything other than there be a component of that term to be immediately served.
What I’ve decided to do though is reduce both the term of imprisonment and the component of the term which needs to be served immediately to take into account all those factors I’ve mentioned where this sits in terms of its circumstances of the offending as well as those mitigatory factors that have been outlined.
But also taking into account issues of general and personal deterrence, I’m going to order that you be released on a recognisance release order after having served three months of that term. You’ve served eight days in custody.
…………….
MASSEY DCJ: ……. That’s the sentence I impose. It will be a term of 10 months’ imprisonment. You’ll serve a period of three months before you’re released on a recognisance release order for a term of a further seven months. The recognisance release order is in the amount of $2,000. The sentence is backdated to 15 May 2023. You can stand down.”[46]
[46] Exhibit 2, G-Documents, Attachment B, 48-56.

The Applicant says that at the time of his offending:
“Prior to being charged with the offence I committed, I was not myself I was on a big downward spiral trying to cope with a heavy loss of a family member I know and any person who knows me knows I was not myself and at the time I had allowed alcohol & drug abuse take over myself. My head was clouded and my rightful judgment and decision making poisoned. That is why I accepted my punishment and fully co-operated with the officer on their investigation and also cause I wanted to turn my life around for the better of myself and commitments I had as a father.”[47]
[47] Ibid Attachment E, 83.
On 6 July 2023, the Applicant’s visa was cancelled under s 501(3A) of the Act.[48]
[48] Ibid Attachment C: Letter from Department to applicant – Notice of visa cancellation, 57-63.
On 4 August 2023, the Applicant made representations seeking revocation of the cancellation decision[49] and provided a personal circumstances form.[50] His reasons for revocation, as follow:
“Being removed from Australia will greatly effect not just myself and the people around me’s lifes but more importantly the most important person in my life. My daughter the impact will greatly effect her emotional well-being as she grows up it will also greatly reduce her financial stability. All of my life is here in Australia. I have no ties to New Zealand since 2017 after my grandfather passed away. He was the only person in my younger years to help me get around my childhood trauma. I am very very sincerely remorseful for my past actions that led to this situation I have put myself in. I know that I definitely do not ever want to be in this position ever again. I know what is more important to me in this life, to be a better person in the community and importantly a good, strong, protective father who provides for his daughter.”[51]
[49] Ibid Attachment 2, 23; Attachment D, 68 - 72.
[50] Ibid Attachment 2, 23; Attachment E, 73 - 87.
[51] Ibid Attachment D: Request for Revocation, 70.
The Applicant claims that he is currently engaged to M.C.[52] I do not accept that this is true. According to the sentencing remarks (above), she was by May 2023, a former partner. The evidence before the Tribunal suggests that they have been separated since 2020, soon after Child A was born. M.C does not claim to be his fiancé.
[52] Exhibit 2, G-Documents, Attachment E, 77.
Ms M.C has provided an undated letter of support for the Applicant.[53] This states:
[53] Ibid Attachment F, 88-9.
“Dear Immigration Judge,
My name is M.C, I am an Australian Citizen and have lived in Australia the entirety of my life. I am writing to you in regards to [QLPC].
I have known QLPC for 7.5 years and we have a 3.5-year-old Daughter together, [Child A] who was born in Australia and has lived in Australia the entirety of her life so far. I am aware of QLPC’s charge and would like to express my honest opinion and experiences regarding his good character. QLPC has shown deep remorse and regret in regards to the charges brought upon him. He has in full taken accountability and accepted the consequences and hopes wholeheartedly to never be in this situation again. The nature of this charge has deeply affected him, as this situation does not portray his true character and he is aware that this will be with him for the rest of his life knowing that this is not who he is. He is a very protective and caring Dad and uncle, always having his daughter’s, Nephew’s and Niece’s best interest at heart. I trust QLPC with our daughter and have no doubts that this situation is an unfortunate accidental mistake.
QLPC did not have the best start in life. Growing up in a poor community in New Zealand, he was surrounded by and suffered violence, drug abuse, neglect and physical/emotional abuse. I have seen first hand the toxicity of his family life in his home town during a visit in 2017. QLPC’s mother neglected him and provided no safety or security for him as a child and he did not know who his dad was. He only had one reliable Family member and person of guidance (his grandfather) and unfortunately at the end of 2017 he passed away suddenly. This affected QLPC in a devastating way. He became extremely depressed, lost his was way and motivation in life. Should QLPC have to return to New Zealand, he is under threat from Family members (2 uncles). They have threatened him with violence via Facebook messenger and have also sent photos of our daughter and myself to him with the intent to threaten and scare him into not returning to New Zealand (the Police currently have QLPC’s mobile in which these messages are held).
Knowing QLPC for 7.5 years and being in a romantic relationship, I can’t express enough that this accidental mistake he has made does not portray who he really is. He is kind, caring, generous and despises anyone who would cause harm to a child. He is the first person to help another in need even if he doesn’t have the means to do so. QLPC has financially supported and provided stability to his close friend who lived with him for 12+ months. Taking the full responsibility for their rent and also providing food for the both of them whilst having the weight of this situation on his mind. He has been apart of community sports, engaging in charity events for the community (breast cancer awareness). He has the upmost respect for his elders, taking the time to create a respectful relationship with my Mum, Nan and Pop and putting in the time to offer support where needed.
QLPC was on bail for 12 months in regards to this charge (mid 2022 - May 2023). In this time, QLPC took this opportunity to prove that he has grown as a human being and has matured into a good citizen that will never be in this situation again. For those 12 months QLPC strictly went to work and spent time with me and our daughter.
He removed any and all toxic influences from his life including negative influencing people and alcohol. As human beings, it is nature to make mistakes and thus far in his attempt to prove he is not the person portrayed on his charge sheet I can honestly say that he has put ALL efforts in and has positively shown he is not a threat to society. Quite the opposite.
Our Daughter [Child A], shares a special bond with QLPC and asks for her dad every day. QLPC is gentle and patient with [Child A] in an attempt to support her emotional wellbeing and raise her better than he received as a child. Without her dad in her life, I can only imagine the detrimental emotional damage this will have on her as she grows up. She won’t have her dad for her first day of school, when she’s sad, to teach her to ride her first bike, for Father’s Day, her birthday. This will impact and mould the person she becomes, unfortunately I fear not for the better. QLPC has a motivation to break the cycle of generational trauma he comes from; he has made efforts to identify his childhood trauma’s and use strategies to avoid passing them onto [Child A] and allowing her the best up brining possible. Uprooting myself and [Child A] to New Zealand is not an option due to the threats of violence from QLPC’s family members and also that [Child A] has an unbreakable bond with her Nannie (my mother) who lives in Australia. [Redacted], Australia is our home and New Zealand is not safe for any of us.
After 29 years of not knowing who his dad is and feeling that absence deeply, recently QLPC found his dad who lives in Sydney, Australia. His aspiration is to keep building a relationship with his dad and to allow his dad to guide him to be his best self. He also aspires to up skill in his employment and education with the opportunity presenting under his dad to do an Engineering apprenticeship. With this, he hopes to be able to build a steady fulfilling career that ensures stability for [Child A] and her future. QLPC has shown so much growth with regards to responsibility for finances, parenting and his awareness for his and others emotional wellbeing.
Unfortunately for some and in this case QLPC, it may take a negative life changing event to realise and understand the person you don’t want to be. He has undoubtably learned his lesson and only wants to work, create a stable environment for [Child A] and raise a good, caring human being. Being away from his daughter for these past 3 months has emotionally affected him and her tremendously already. QLPC is apart of my family unit and has more stability and guidance in Australia than New Zealand, he just needs the second chance to prove his good character further. I am so proud of the person he is becoming and the maturity he is showing in owning his mistakes and learning from them to ensure they don’t happen again. I am the closest person to him and don’t believe he is a threat to our community at all.
I hope you consider these vital points and my vulnerability and honesty in respect to QLPC’s character. Hopefully we can reunite with QLPC soon.
Thank you.
[M.C]”[54]
[54] Exhibit 2, G-Documents, Attachment F: Letter from Ms M.C (received on 21.08.2023).
This statement contains hearsay and unqualified expressions of professional opinion.
I note that between 1 March 2022 and 28 July 2023, during his incarceration at Acacia prison in WA, M.C visited him on only one occasion.[55]
[55] Ibid Attachment H: Western Australian Department of Justice: Visit history report, 106.
M.C’s statement is notable for what it does not say. There is no mention of them being engaged, living together, or planning to do so, if he were to be returned to the community. There is only the rather ambiguous phrase “Hopefully we can reunite soon”.
There is also a letter of support from M.C’s mother,[56] her brother,[57] and a former co-worker.[58]
[56] Exhibit 2 , G-Documents, Attachment F1: Letter from Ms J.O (received on 21.08.2023), 90.
[57] Ibid Attachment F2: Letter from Mr K.O (received on 10.08.2023), 91.
[58] Ibid Attachment F3: Letter from Mr T.S (received on 21.08.2023), 92-3.
The Applicant has had longstanding issues with alcohol and drugs use including cannabis.[59]
[59] See para [63].
The Applicant has been involved in gangs in New Zealand and Australia.[60]
[60] Exhibit 2, G-Documents, Attachment B, 48.
The Applicant claims to have fears for his safety if he returns to New Zealand. He says:
“If deported I will more than definitely life threatening, danger, as I have enemys who in their words have told me they want to kill me, they are people with a very big history of using extreme violence to get what they want.”[61]
[61] Ibid Attachment E, 86.
He also says:
“danger of threats death from an uncle disowned as family, cause of the mental & physical abuse he has dished out toward both male and female family members. His history proves it.”[62]
[62] Ibid.
The Applicant reports that most of his close relatives remain in New Zealand although 2 brothers and a sister live in Australia. He has a number of aunts, uncles, nieces, nephews and cousins in Australia. He says that his relatives here would be adversely affected if he were returned to New Zealand:
“Massive impact as it would feel as if a family member has just passed away. I have also just found my blood father who resides in Sydney. And for the last 9 months just starting to find out more about where the other half of me comes from – as I have no contact with my birth mother on any other family member in New Zealand, due to not wanting to remember past childhood trauma.”[63]
[63] Exhibit 2, G-Documents, Attachment E, 82.
The Applicant says that he will not reoffend. In his personal circumstances form he states:
“I believe their will not be any risk of offending, As myself drive and motivation out weighs any type of negative behaviour. I know I want to be a good person not only for myself but for others as well, I want to everyone. Some people can change given a second chance. I want to be living proof, I also want my daughter to grow up being proud of her father. That to me is what matters more in this life.”[64]
[64] Ibid 83.
The Applicant has been exposed to extreme antisocial behaviour.[65] A psychological testing suggests that the Applicant struggles with emptiness, anger, self-destructive and feel tense, guilty and depressed.[66] His ‘anxiety scale is significantly elevated’.[67]
[65] Exhibit 3, Respondent’s Tender Bundle, 141.
[66] Ibid.
[67] Ibid.
There are other issues regarding the Applicant’s mental health including substance use, violent or suicidal ideation.[68] A detailed discussion of the Applicant’s mental health issues is addressed above, in the sentencing remarks of Massey DCJ.[69]
[68] Ibid 142.
[69] See para [63].
The Applicant’s mother, 2 brothers and 3 sisters currently reside in New Zealand.[70] If the Applicant were to be released into the community, he would return to work. He would find a place to live. He would continue to support Child A and M.C financially and he would attempt to be a supportive co-parent to Child A.
[70] Exhibit 2, G-Documents, Attachment E, 82.
The Applicant says that he has not sought professional help in the past because to do so may have been seen as being a “snitch” on his former bikie colleagues. He says that he appreciates the need for treatment and that he will seek it if released.
The Applicant’s record of convictions is annexed hereto and marked “B”.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant was convicted by Judge Massey of Perth District Court on an account of accessing child abuse material using a carriage service, for which he was sentenced to a term of imprisonment of 10 months. He must serve a period of 3 months before he could be released in the community on a recognisance order for the 7 months remaining.[71]
[71] Exhibit 2, G-Documents, Attachment A, 39; Attachment B, 55.
The Tribunal finds that the Applicant does not pass the character test because he was convicted of sexually based offences involving a child. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, 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”) has application.[72]
[72] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they 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.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. 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.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
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.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they 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; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[73]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[74]
[73] [2018] FCA 594.
[74] Ibid [23].
OFFENDING HISTORY

The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
The Applicant’s offending commenced in 2019.[75]
[75] Exhibit 2, G-Documents, Attachment A, 39.
Primary Consideration 1 – Protection of The Australian Community
In considering this Primary Consideration 1, 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. Decision-makers 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.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen 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 a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The conduct that may be considered very serious is not limited by the particular offending set out in sub-paragraph (a). In any event, the Applicant has been convicted of what amounts to a serious sexual crime. His conviction is, on his own admission, only for a fraction of his similar conduct, extending over some years. The material that he was convicted of accessing, included graphic images of very young children in sexual acts with adult men.
His excuse for offending, namely that he was seeking images depicting bestiality, was regarded as unconvincing, by the sentencing Judge. It is difficult to see how this explanation, even if true, can be innocent. It may possibly explain the first time that he apparently stumbled on to child exploitation material, but it certainly does not explain why he should continue thereafter, to repeat this behaviour.
The Applicant has also been convicted of a serious assault.[76] The circumstances of this offence are such that a very serious injury may have resulted. As it was, the victim sustained physical injuries and a loss of consciousness.[77] Even if this conviction were to be excluded, his other conduct is still very serious.
[76] Exhibit 2, G-Documents, Attachment A, 39.
[77] Exhibit 3, Respondent’s Tender Bundle, 3.
The Applicant has committed serious driving offences. He has apparently never held a driver’s license, yet he has been detected drink driving. The risk to the community of an intoxicated, unlicensed driver is obvious. This offending is serious.
The Applicant has engaged in one recorded instance of family violence. This is set out in some detail above. This is also very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant clearly does not pass the character test. Not only has he committed serious criminal offences, but he has been associated with criminal organisations namely the Bandidos and Mongols OMCG.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant was sentenced to a custodial term as a first offender for a child exploitation offence. The gravity of his offending and the need for a custodial term are discussed at some length by the sentencing Judge. This is indicative of the serious nature of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has only been convicted of serious child exploitation offences on one occasion, although the offending for which he was convicted was, by his own admission, far from an isolated instance. This offending is significantly more concerning than his previous unrelated offending, which was itself, hardly trivial. His offending has become more serious over time.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending is very serious. The critical importance of consumers of child exploitation material, for the perpetuation of the market, is noted by the sentencing Judge.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant has made a false declaration on an immigration entry card. His explanation is that he didn’t think it applied to his offending. I am prepared to accept this, as this conviction was spent.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is no evidence of any such warning.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no evidence of any overseas offences or relevant misconduct.
I do not consider factors (f), (g) and (h) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted 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;
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 non-citizen 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; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
The Applicant’s offending in connection with child exploitation material is very serious. As observed by the sentencing judge, the consumers of this material generate a strong financial incentive for the victimisation of yet more children. This is not a victimless crime. The fact that some victims may be living in other countries, does nothing to diminish the gravity of the offending associated with the procurement and production of this material. The victims are often selected from amongst the marginalised and the most vulnerable. Any repetition of this offending is totally unacceptable.
The Applicant’s admitted history of violence and family violence is also behaviour for which there is little tolerance.
Likelihood of engaging in further criminal or other serious conduct
The Applicant conceded that he suffers from a degree of compulsion in accessing child exploitation material. Whether he derived any sexual gratification from this conduct, or found it otherwise stimulating, is an unknown, and a matter of secondary importance. I note the remarks of the sentencing Judge:
“….when you hit traumatic periods in your life which everyone goes through may lead to you going back to firstly drinking and then accessing the sort of websites that you’ve been accessing. I’m told you haven’t engaged in any counselling up until now. ….. without undergoing those sort of programs, I think that there is a risk of re-offending.”[78]
[78] Exhibit 2, G-Documents, Attachment B, 51.
In the absence of engagement with the necessary and appropriate ongoing treatment, in my view, there is a real and appreciable risk of the Applicant reoffending.
There is a clear history of life stresses leading on to poor coping mechanisms, such as alcohol and/or substance abuse, and then to the Applicant’s offending.
This in turn seems to be the product of unresolved and untreated mental health problems, rooted in his dysfunctional upbringing.
The Applicant has not yet committed to any treatment. He did not undertake treatment during the 11 months during which he was on bail prior to sentencing. This was confirmed by the Applicant’s lawyer on the day of sentencing that: “… he intends to seek treatment. Perhaps the wrong way around. A lot of case law speaks about treatment intervention programs before sentencing. He hasn’t taken up that opportunity.”[79]
[79] Exhibit 3, Respondent’s Tender Bundle, 160.
The Applicant’s explanation to the Tribunal was that treatment would have involved snitching on his bikie friends, at least in their eyes. In other words, he placed his loyalty to, or fear of, a bikie gang, ahead of his treatment and recovery needs.
He says now that he has parted company with the bikies and taken his punishment, he is free to seek counselling. Perhaps this is so. Perhaps not. If engaging with treatment was ever going to involve him revealing details about bikie activities, it is hard to see how this will not continue to be so.
The fact remains that he has not sought help and even now, has no concrete plans to do so, whatever his intentions may presently be.
I am not satisfied that any adequate explanation for the Applicant’s interest in child exploitation material has been offered. There are unfortunately many people who have had difficult childhoods, and who suffer from associated mental health and substance abuse issues. It is, however, uncommon for such people to also demonstrate a consequential interest in child exploitation material. In the absence of expert evidence on this subject, I am left without any authoritative guidance about the possibility of any treatment, even if undertaken, resulting in a “cure” for the Applicant. It seems that he is asking the Tribunal to accept that his willpower alone, will prevent him resuming his substance abuse and reoffending.[80]
[80] Exhibit 2, G-Documents, Attachment E, 83.
Any stressor in his life may precipitate a return to alcohol or substance abuse. This is in turn will greatly increase his risk of reoffending. The Applicant has not undertaken any treatment programmes to address his substance abuse, his evident fascination with child exploitation material, or to constructively manage the stresses of life.
I do accept his evidence that he has abstained from substance abuse since his imprisonment in May 2023.
I also note his evidence to the Tribunal that he has converted to Islam in the last few months and that this has strengthened his resolve to avoid drugs in the future.
I accept that his desire to be a father, and to be present in his daughter’s life, is also a motivation to behave.
Nevertheless, his capacity to manage himself in an unsupervised environment has not been tested. He has a very poor record of managing alone.
His association with family in Australia, M.C, her family and Child A are not, and have not been, protective factors. He has offended and also committed similar acts, when he was still associating with them.
In these circumstances, the risk of reoffending is at least moderate. If he were to return to substance abuse and/or not seek treatment, the risk of reoffending is much higher.
Conclusion: Primary Consideration 1
Primary consideration number one weighs very heavily against revocation of the Applicant’s visa cancellation.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(1)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 (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is one recorded instance of family violence as set out above. This resulted in the issue of a 72-hour restraining order by police.
Conclusion: Primary Consideration 2
Primary consideration number 2 weighs against revocation of the Applicant’s visa cancellation.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.

The Applicant spent all his formative years in New Zealand.
The Applicant does have a record of having been mostly employed in Australia.
The Applicant has numerous family members in Australia as set out above. He has a relationship with M.C, her family and with Child A. This is discussed elsewhere.
The Applicant has recently discovered that his biological father is resident in Sydney and he hopes to establish a relationship with him, his family and his friends. The Applicant told the Tribunal that he has been in contact with his father by phone. There is no statement from his father. It is difficult to see how the Applicant’s removal to New Zealand would impact on an absent father, whom he has never known.
The Applicant says that he has 2 brothers and a sister living in Australia.[81] These are half-siblings as the Applicant was the only child of his biological parents. There are no statements from them to explain the impact that his return to New Zealand would have on them.
[81] Exhibit 2, G-Documents, Attachment E, 82.
The only supporting statements for the Applicant are from M.C,[82] M.C’s mother,[83] M.C’s brother,[84] and a co-worker.[85]
Conclusion: Primary Consideration 3
This consideration weighs slightly in favour of revocation of the cancellation of the Applicant’s visa.
[82] Ibid Attachment F, 88-9.
[83] Ibid Attachment F1, 90.
[84] Ibid Attachment F2, 91.
[85] Ibid Attachment F3, 92-3.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The only claimed relevant minor children in Australia is Child A, aged 4 ½ .
The Applicant says that he has a close relationship with Child A. I accept that the Applicant is strongly motivated to be a positive influence and presence in Child A’s life. Whether he is capable of doing so is another, and a much more difficult question.
The Applicant was not the child’s primary care giver prior to imprisonment and has been separated from her mother (M.C) since Child A was an infant in 2020. He has had ongoing contact with Child A and has contributed financially.
The nature of the Applicant’s offending raises the possibility that Child A may even be at risk of direct harm or indirect harm by exposure to child exploitation material, if she were to continue to associate with the Applicant.
The fact that M.C does not seem concerned by this contact is irrelevant. Her statement suggests that she is herself, ignorant of the extent of the Applicant’s offending. She also has a direct financial incentive to see the Applicant remain here to assist in the support of Child A.
If the Applicant were to return to New Zealand, he could maintain a relationship with Child A electronically. If employed, he could still provide financial support.
The Applicant separated from M.C. in 2020. They have not lived together as such, since 2020. He told the Tribunal that ‘there was a long period I wouldn’t see my daughter or spend time with my daughter and if I did, it would only be for 5 – 6 hours’. His contact arrangements with M.C and Child A would be ‘once a month’, 1 day, 2 nights or a weekend because he was mostly at work.
He has been physically absent from Child A’s life entirely since May of 2023. He has been in prison and immigration detention.
The Applicant has referred to 8 nieces and nephews in Australia in his documents.[86] No further details have been provided.
Conclusion: Primary Consideration 4
[86] Exhibit 2, G-Documents, Attachment E, 82.
Having regard to all the above, and assuming in the Applicant’s favour that he does not reoffend, primary consideration 4 weighs at best very slightly in favour of revocation of the Applicant’s visa cancellation. In the event that his offending were to continue, it weighs against revocation.
On balance, I find this primary consideration weighs slightly in favour of revocation.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[87]
[87] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s criminal record as set out in Annexure B
b.the other matters set out above
c.the gravity of child exploitation offences
Conclusion: Primary Consideration 5
Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision:
Non-citizens not covered by a protection finding
Paragraph 9.1.2 of the Direction directs a decision-maker to take into account the following:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The Applicant claims that he has received death threats from his uncle in New Zealand.[88] He claims that he is ‘sick of the mental and physical abuse they had brought upon’ him.[89] He further claims that he has enemies that want to kill him. There is no evidence or documentation to support this claim beyond the Applicant’s word, or hearsay from M.C.
[88] Exhibit 2, G-Documents, Attachment E, 86.
[89] Ibid.
On this point, as with some others that I have mentioned, I do not accept the Applicant’s unsupported assertions.
In M.C’s support letter, she says the Applicant’s 2 uncles in New Zealand have sent him threats with violence on Facebook Messenger. This extends to sending the Applicant some photos of their daughter and herself with the intent to ‘scare him into not returning to New Zealand’.[90] She said those messages are stored on the Applicant’s phone which was in possession of the Police. The materials were not made available to the Tribunal. This hearsay evidence carries no weight.
[90] Ibid Attachment F, 88.
The cancelled visa was not a protection visa.
The Applicant has made no application for a protection visa.
In Plaintiff M1/2021, the High Court stated the approach to be taken by the decision maker in respect to representations made under s 501CA(4):
“It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.”[91]
[91] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25].
In the present circumstances I am not satisfied that the Applicant is owed non-refoulment obligations.
I defer any such consideration.
This consideration is neutral.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a young man of almost 31 years old. His physical health is good. He does have mental health challenges as set out above. He will require treatment for his mental health problems and his substance abuse.
There is no doubt that he would experience stress and dislocation if he were to be removed from his connections in Australia, especially Child A. That said, the provision of mental health and drug treatment services in New Zealand is comparable to that offered in Australia. He could keep in touch with his Australian connections electronically.
The Applicant spent his first 22 years in New Zealand. There are no language or cultural barriers to his return.
The Applicant has extensive family connections in New Zealand, including half-siblings and his mother.[92] He says that these are complex and negative. He says his history of mental and physical abuse at the hands of his family is a real threat to his welfare.[93]
[92] Ibid Attachment E, 82.
[93] Ibid 86.
The Applicant would not have to return to live in his home town. He could take steps to avoid contact with relatives in New Zealand.
The Applicant would have the same access to social, medical and/or economic support as any other citizen of New Zealand. He would also be able to call upon the assistance of police in New Zealand should the need arise. The supports available in New Zealand are comparable to those available in Australia.
This Other Consideration (b) at best weighs slightly in favour of revocation.
(c) Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence regarding this other consideration.
This Other Consideration (c) is neutral.
(d) Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
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.
There is no evidence regarding this other consideration.
This Other Consideration (d) is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s 501 or s 501CA is neutral.
(b)extent of impediments if removed weighs at best slightly in favour of revocation.
(c)impact on victims is neutral.
(d)the impact on Australian business interests is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs very heavily against revocation.
Primary consideration 2 weighs against revocation.

Primary consideration 3 weighs slightly in favour of revocation.
Primary consideration 4 weighs slightly in favour of revocation.
Primary consideration 5 weighs heavily against revocation.
Other considerations, (a), (c) and (d) are neutral.
Other consideration (b) at best slightly in favour of revocation
Cumulatively, Primary Considerations 1, 2 and 5 weigh overwhelmingly against revocation of the visa cancellation. This remains so, even if his 2019 assault conviction and his admissions of prior uncharged conduct relating to accessing child exploitation material were to be ignored.[94]
[94] It is possible that Primary Consideration 4 may also weigh against revocation, as discussed.
Primary Considerations 3 and 4 weigh slightly in favour of revocation. So does Other Consideration (b).
The Primary Consideration potentially most favouring revocation, is the interests of Child A. For the reasons set out above, this weighs only slightly in favour of revocation.
Other Considerations (a), (c) and (d) are neutral.
The overwhelming weight is against revocation. Primary Considerations 1 and 5, dwarf the Primary Considerations 3, 4 and Other Consideration (b) standing slightly in favour of revocation. This remains the case, even if all the assumptions discussed above are made in the Applicant’s favour.
It remains the case even if his assault conviction were to be ignored.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

...............................[sgnd]....................................
Associate

Dated: 16 May 2024

Date of hearing: 7 May 2024

Advocate for the Applicant:

Self-represented

Advocate for the Respondent:
Ms Daphne Jones-Bolla
(Sparke Helmore)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Respondent

Statement of Facts, Issues and Contentions

2

Respondent

G-Documents

3

Respondent

Tender Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court

Court Date

Offence

Court Result

Perth District Court of Western Australia 23.05.2023 Uses a carriage service to access child pornography material Imprisonment 10 Months, released after serving 3 Months Concurrent
From 15/05/2023, upon entering Recog of $2000, to be of Good Behaviour for 7 Months. - Concurrent,
Reportable Offender.

Armadale

Magistrates Court

24.06.2022

Possessed a prohibited weapon

Fined $500

Mandurah
Magistrates Court 17.08.2021 No authority to drive (disqualified) Disqualified: 9 months - Cumulative
Fined $400

Joondalup Magistrates Court

26.03.2021

Exceed 0.08g alcohol per 100ml of blood

Disqualified: 8 months
Fined $650

Joondalup Magistrates Court

26.03.2021

No authority to drive (never held)

Fined $200

Perth Magistrates

Court
01.03.2019 Assault Occasioning Bodily Harm Fined $2,000;
Spent Conviction

Date of hearing:	7 May 2024
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Daphne Jones-Bolla (Sparke Helmore)

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions
2	Respondent	G-Documents
3	Respondent	Tender Bundle

Court	Court Date	Offence	Court Result
Perth District Court of Western Australia	23.05.2023	Uses a carriage service to access child pornography material	Imprisonment 10 Months, released after serving 3 Months Concurrent From 15/05/2023, upon entering Recog of $2000, to be of Good Behaviour for 7 Months. - Concurrent, Reportable Offender.
Armadale Magistrates Court	24.06.2022	Possessed a prohibited weapon	Fined $500
Mandurah Magistrates Court	17.08.2021	No authority to drive (disqualified)	Disqualified: 9 months - Cumulative Fined $400
Joondalup Magistrates Court	26.03.2021	Exceed 0.08g alcohol per 100ml of blood	Disqualified: 8 months Fined $650
Joondalup Magistrates Court	26.03.2021	No authority to drive (never held)	Fined $200
Perth Magistrates Court	01.03.2019	Assault Occasioning Bodily Harm	Fined $2,000; Spent Conviction