RBKG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3434

RBKG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3434 (20 October 2022)
Division:GENERAL DIVISION
File Number:2022/6280
Re:RBKG
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member J Rau SC
Date:20 October 2022
Place:Adelaide

The decision under review is affirmed.
..........................[sgnd].....................................
Senior Member J Rau SC
Catchwords
MIGRATION – mandatory cancellation of Class BC Subclass 100 Spouse visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
MIEA V Singh (1997) FCR 288
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 500
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
Minister for Home Affairs v Omar (2019) FCAFC 188
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
20 October 2022
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 28 July 2022, not to revoke the mandatory cancellation of his Class BC Subclass 100 Spouse visa (“the Visa”). His visa was cancelled on 23 June 2022 under section 501 (3A) on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to three years imprisonment on 14 May 2019.[1]
[1] Exhibit 2, G4, Attachment A, pp 38-40.
Therefore, 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 on 6 October 2022. The Applicant was self-represented, and the Respondent was represented by Ms Cody Allen of Sparke Helmore Lawyers.
The Applicant gave evidence by Microsoft Teams. There were many instances of a conflict between his past reported statements, his past conduct, and his evidence to the Tribunal. Examples include his history of drug and alcohol use as reported to psychologists and the details of his offending. Some of these are discussed below. In general terms, he appeared to lack insight into his behaviour and sought to downplay its seriousness. Where there is credible alternative evidence, I have generally preferred that to the Applicant’s account.
The Applicant did not call any other witnesses. Significantly, neither his former wife, VS or the mother of his infant daughter, JM, were not called.
Background Facts
The Applicant was born in Serbia. He is a Serbian national. He is 46 years of age.
He lived in Serbia until he was 13 years old. He then moved with his family to Austria, where he finished school aged 16. For a year he worked as an apprentice in a bakery. When he was 18, his family bought a farm in Serbia and he moved back there. They had the farm for about 10 years. He did military service there. His parents and his brother remained in Austria. They are now Austrian citizens. He has no relatives remaining in Serbia.
In 2005, the Applicant commenced a relationship with VS. They have two children. Child A, a daughter, is now aged 16 and Child B, a son, is now aged 13 years. The Applicant says that his relationship with his wife had broken down by about 2012. He says that VS had post-natal depression. They remained in the family home together, but living apart, until 11 December 2014 when VS and the children moved out.[2] At this stage, he continued to see the children on weekends. He has not had contact with the children at all since October or November of 2018. The Applicant and VS divorced in 2019. He has does not know where VS and the children live now, though he thinks that they are living in Australia. The Applicant says that he was upset about the failure of his marriage.[3] He says that this was a factor contributing to his alcohol abuse.
[2] Exhibit 3, RTB3, p 23.
[3] Exhibit 2, G21, Attachment G4, pp 117-118.
On 27 May 2006, the Applicant arrived in Australia. He has remained here ever since.[4]
[4] Ibid, G26, Attachment K, p 354.
In about 2009, the Applicant started downloading Child Exploitation Material (“CEM”).[5] He told the Tribunal that he had used search terms such as “teens” and “teen models”. This is consistent with what police records suggest he told them when interviewed, in October 2016. This conduct continued for some time.
[5] Exhibit 3, RTB3, p 50.
The Applicant gave confusing evidence about how he came to possess CEM on his computer. He claimed not to have intentionally downloaded it. He claimed that he downloaded flies with names that did not describe their actual content. He downloaded files without knowing what was in them. He had done this 2 or 3 times. He could not explain why he did this. In an almost contradictory tone, he told the Tribunal “I did not think about the consequences.. I didn’t think it was something really wrong.. I knew it wasn’t really right…. I was under the influence of alcohol and didn’t care much…it was a stupid decision.. I didn’t know I was going to have trouble…”.
The Applicant also told the Tribunal that he has no sexual attraction to children. He denied touching Child A’s genitals, notwithstanding the existence of video evidence to the contrary. He stated that he was “not someone with sexual problems”.
QLD police records state that on 15 March 2014:
“The defendant in this matter is [RBKG].
At 2:55am on the 15th March 2014 police from the Inala Tactical Crime Squad stopped a black Holden Crewman Dual cab utility bearing Qld Rego . The defendant was the driver of the vehicle.
The defendant was moderately affected by alcohol and his eyes were bleary and police could smell liquor on him. The defendant supplied a specimen of breath for a breath test and as a result was detained for a further test and transported to the Inala Police Station for that purpose. The defendant admitted to having 2 beers and 2 vodka’s from about 10pm the night before. The defendant gave no lawful or emergent reason for driving. At 3:41am on the 15th March 2014 on requirement made and direction given the defendant supplied a specimen of his breath for analysis on an approved breath analysing instrument. At the conclusion a breath analysis certificate was produced showing that the defendant had a breath alcohol content of 0.129%.
The defendant was issued with a notice of suspension and a notice to appear at the Richlands Magistrates Court on 7 April 2014 in relation to this matter.”[6]
[6] Ibid, RTB3, p 27.
QLD Police records note a report of domestic abuse on 12 December 2014. This states:
“……
THE RESPONDENT AND THE AGGRIEVED HAVE BEEN MARRIED FOR 9 YEARS AND HAVE TWO CHILDREN TOGETHER. THE RESPONDENT AND THE AGGRIEVED HAVE BEEN LIVING TOGETHER WHILST SEPARATED FOR THE PAST THREE YEARS. ON THURSDAY THE 11/12/2014 THE AGGRIEVED HASMOVED OUT FROM THE FAMILY HOME TO HER OWN RESIDENCE. ON FRIDAY THE 12TH DAY OF DECEMBER 2014 AT ABOUT 2100HRS THE AGGRIEVED HAS RETURNED TO THE FAMILY HOME TO COLLECT SOME OF HER PROPERTY. THE AGGRIEVED WAS IN THE KITCHEN COLLECTING PROPERTY WHEN THE RESPONDENT HAS COME INTO THE KITCHEN TO TELL THE AGGRIEVED TO SHUT UP AS SHE WAS MAKING TOO MUCH NOISE AND SHE WOULD WAKE HIS MOTHER WHO WAS ALSEEP IN THE BEDROOM. THE REPONDENT HAS THEN STARTED CALLING THE AGGRIEVED A BITCH, AT THIS STAGE THE RESPONDENTS MOTHER HAS WOKEN UP AND ENTERED THE KITCHEN CALLING THE AGGRIEVED A BITCH AND TELLING HER TO LEAVE THE ADDRESS. THE AGGRIEVED HAS THEN LEFT THE ADDRESS. PREVIOUS DV: NO. FREQUENCY: FIRST INSTANCE. SEVERITY: MINOR. CHILD’S LEVEL OF INVOLVEMENT: IN VIEW/HEARING OF. WEAPONS INVOLVED: NO. INJURIES TO AGGRIEVED/RESPONDENT: NO. PROPERTY DAMAGE: NO. RESPONDENT AFFECTED BY ALCOHOL/DRUGS: UNKNOWN. AGGRIEVED AFFECTED BY ALCOHOL/DRUGS: UNKNOWN…”[7]
[7] Ibid, RTB3, pp 23-24.
The Applicant did not deny this.
On 9 July 2015, a Protection Order was made against the Applicant in favour of VS, Child A and Child B.[8]
[8] Ibid, RTB3, p 22.
On 18 August 2015, the Applicant was in court charged with “contravene direction or requirement (on 18 July 2015)”. No conviction was recorded, and he was fined $200.[9]
[9] Exhibit 2, G4, Attachment A, p 40.
On 5 October 2016, QLD police identified that the Applicant’s computer was sharing CEM.[10]
[10] Exhibit 3, RTB1, p1.
On 19 October 2016, police executed a search warrant at the Applicant’s address. They found CEM on a computer owned by the Applicant. They also found CEM images on a camera owned by the Applicant. These images included images of Child A.[11]
[11] Ibid.
On 7 December 2016, the Applicant was in court charged with two counts of “contravene direction or requirement (on 27 October 2016 July 2015)”. No conviction was recorded, and he was fined $250.[12]
[12] Ibid.
On 17 July 2017, the following incident was reported:
“[RBKG] has threatened the maternal grandmother and then smashed [VS’s] car windows with a sledge hammer. The children have reported that they are scared of their father and don’t want to see him. [RBKG] has demanded to see the children after smashing the windows. Concerns that [RBKG] is drinking heavily and has made statements such as “the children should be killed.” This has led to the children not sleeping for two nights after witnessing their father’s behaviour.
Additional information was provided on 21/7/2017 stating that [RBKG] has a history of DV from 2014 and 2015 and he was also charged for child abuse in 2016.
The family were referred to FaCC.”[13]
[13] Ibid, RTB4, p 126.
This was put to the Applicant. He denied that this happened. He said that these were “all lies”. He attributed them to VS and her mother wishing to have him deported.
On 20 July 2017, a Temporary Protection Order was made against the Applicant.[14]
[14] Ibid, RTB3, p 21.
On 14 September 2017, a Protection Order was made against the Applicant.[15]
[15] Ibid, RTB3, p 20.
On 15 December 2017, QLD Police records report:
“The defendant in this matter is [RBKG].
On the 7^th day of April 2017 the defendant entered into a bail Undertaking at the Beenleigh Magistrates Court. This Undertaking consisted of 5 Conditions. Condition 5 states; THE DEFENDANT SHALL HAVE NO CONTACT WHATSOEVER EITHER DIRECTLY OR INDIRECTLY WITH ANY PERSON UNDER THE AGE OF 16 YEARS UNLESS SUPERVISED BY A RESPONSIBLE ADULT
At about 11:15am on Friday the 15^th day of December 2017, Police from Browns Plains Police Beat were at the Grand Plaza Shopping Centre when they responded to multiple reports from patrons and Centre Security of a male person acting inappropriately around children. Police attended and located the defendant who identified himself as [RBKG]. Centre Security stated to Police that the defendant approached a Santa display located on the Kmart Mall where a number of female juveniles were present. The defendant then stood for a while where he was watching the children sitting on Santa’s lap.
Police conducted checks and established that the defendant was in breach of his bail undertaking. The defendant was subsequently arrested and conveyed to Browns Plain Police Beat.
The defendant stated to Police that he was just doing some Christmas shopping.
The defendant was conveyed to Beenleigh Watch House where he was charged in relation to this matter and held in, to appear in the Beenleigh Magistrates Court on the 18^th day of December 2017 at 8:30am.”[16]
[16] Ibid, RTB3, p 73.
This was put to the Applicant. He said that the complaint was “ridiculous” and that his behaviour was “normal”. He also said that “it could look strange…I didn’t effect anyone”.
On 19 December 2017, “failure to appear in accordance with undertaking “(on 10 November and 29 November, 2017”. No conviction was recorded, and he was fined $600.[17]
[17] Exhibit 2, G4, Attachment A, p 40.
On 10 January 2018, the Applicant was in court charged with “contravention of a domestic violence order (between 4 December 2017 and 2 January 2018)” a conviction was recorded, and he was fined $600.[18] This was a breach of the order that had been made on 14 September 2017 (supra).
[18] Ibid.
The particulars of this offending were:
“……
On the 05/12/2017 14:40 the suspect has sent a text message from mobile phone number 04XX XXX XXX to the victim saying “Great even you mother is a legend”. On the 01/01/18 at 21:18 the suspect has sent further text messages from the same number to the victim saying “Do you know how you life ends in the second month” “say just anything it will be better” “children are going with me to Europe”.[19]
[19] Ibid, G12, Attachment E, p 76. RTB p 81.
Similarly, 10 January 2018 QLD Police records state:
“The defendant in this matter is [RBKG] a male that is currently unemployed. The defendant resides at .
The victim/aggrieved in this matter is .
The defendant and victim are subject to a Domestic Violence order that was issued on 14^th September 2017. The order has the defendant listed as the respondent and the victim listed as the aggrieved. The order has mandatory conditions. The respondent was personally served a copy of this order on the 17^th September 2017 by Constable [TM].
The defendant has breached condition 3 – The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved except in writing for the purposes directly relating to parental contact issues.
On the 5^th day of December 2017 at 4:40pm the defendant has sent a text message from his mobile phone number to the aggrieves mobile phone saying “Well done your mother are a legend”.
On the 1^st day of January 2018 at 9:18pm the defendant has sent a text message from his mobile phone number to the aggrieves mobile phone saying “Do you know how your life will end in the second month”, “text anything it will be better”, and again “Do you know how your life will end in the second month”.
On the 1^st day of January 2018 at 9:19pm the defendant has sent a text message from his mobile phone number to the aggrieves mobile phone saying “Text anything its better” and children go with me to EU”.
The content of these text messages caused the aggrieved to become fearful and concerned for her safety.
On the 10^th day of January 2018 the defendant attended the Forest Lake Police Beat where he was formally identified by Police Photo. The defendant participated in an EROI. During this interview the defendant confirmed that he was aware of the current Domestic violence order and can recall Police serving and explaining the order to him.
The defendant confirmed that the phone number used to send the text messages to the aggrieved was his current phone number.
The defendant further stated that he had typed and sent the text messages to the aggrieved. The defendant stated that at the time of sending the text message he was under the influence of liquor and suffers from alcoholism. The defendant stated that he did not intend to cause harm to the aggrieved.
The defendant could not provide any lawful or emergent reason for breaching the Domestic violence order.”[20]
[20] Exhibit 3, RTB3, p 81.
The Applicant could not explain to the Tribunal why he had done this or what he intended.
On 19 January 2018, the Applicant was in court charged with “breach of bail condition (on 25 December 2017)”. A conviction was recorded, and he was fined $300.[21]
[21] Exhibit 2, G4, Attachment A, p 40.
On 23 January 2018, the Applicant was in court charged with offences relating to the possession of drugs and pipes, or utensils (on 19 October 2016). He was fined $750, but no conviction was recorded. The Applicant says that the drugs and pipe were not his.[22] He told the Tribunal that he had never used drugs “of any kind”. He was also charged with a breach of bail (on 15 December 2017). He was fined $400, but no conviction was recorded.[23]
[22] Ibid, G21, Attachment G4, p 119.
[23] Ibid, G4, Attachment A, p 40.
On 31 January 2018, the Applicant was in court charged with a breach of bail (on 10 January 2018) He was convicted and fined $200.[24]
[24] Ibid.
On 3 February 2018, police executed a further search warrant and found further CEM.[25]
[25] Exhibit 3, RTB1, p1.
On 13 November 2018, the Applicant completed a substance abuse course.[26]
[26] Exhibit 2, G21, Attachment G4, p 149.
On 3 March 2019, the Applicant was granted a Class BC Subclass 100 Spouse Migrant (Permanent) visa.[27]
[27] Ibid, G25, Attachment J, p 349.
On 14 May 2019, the Applicant was sentenced in relation to charges of “indecent treatment of a child under 16 (take photograph etc) child under 12 years lineal descent/guardian/carer- domestic violence offence (2 charges btn 01/01/2011 & 20/10/2016), indecent treatment of children under 16 child under 12 lineal descent/guardian/carer- domestic violence offence (btn 01/01/2014 & 20/10/2016) possessing child exploitation material (on divers dates btn 04/10/2016 & 04/02/2018) He entered a plea of guilty.
In his evidence to the Tribunal, he said that many of the allegations against him were not true. His lawyer had told him to enter a plea. He told the Tribunal that he accepted that this was an offence against his daughter. He told police in October 2016, that he could not see anything wrong with the photo of his daughter. He said that he can now see that it was not appropriate. He said that he did not think that Child A was negatively impacted by his offending.
The QLD Police Brief contains details of the offending:
“The defendant in this matter is [RBKG].
The victim in this matter is [Child A]. [Child A] is the biological daughter of the defendant.
On an unknown date between the 2nd day of July 2011 and the 4th day of July 2014, the defendant and victim were at their home address. At an unknown time, the defendant began taking video images of the victim while she was lying face down on what is believed to be a bed. During this time, the defendant has pulled the victim's underwear to the side and used his fingers to spread apart the victim's vagina.
On the 19th day of October 2016, Detectives from Argos attended [the home address] and executed a search warrant at the address in relation to possession of child exploitation material. As a result of that search, a number of electronic devices were seized and examined.
As a result of examinations conducted on the defendant's devices, Detectives observed a video depicting a female child laying face down on a bed or similar and an unknown adult male pulling the child's underwear to the side and using his fingers to separate the victim's vagina. The data contained in this video indicated that it was taken on a Sony video camera.
On Saturday the 3rd day of February 2018, Detectives attended…… and executed a search warrant on the defendant. During this time, the defendant was shown a still image from the video. The defendant stated that it was of his daughter who was approximately 5-6 years old in the video.
The defendant could give no lawful or emergent reason for indecently touching the victim.
At the conclusion of the search, the defendant was arrested and transported to the Richlands Watch House where he was formally charged to appear in the Richlands Magistrate Court in relation to these matters.
NOTE TO PROS: Previous criminal and traffic history.
Current matters with DPP relating to possess CEM.”[28]
[28] Ibid, G11, Attachment D2, p 73.

The Applicant says:
“……
I plead guilty to and was convicted of three counts of indecent treatment of a child. This was against my daughter. It concerned the following incidents:
a) taking a photo of her when she was naked and wearing stockings; and
b) Taking a recording of her when her private parts were exposed, and touching her.
I plead guilty to these crimes.
With regards to (a), I recall I was at home with my ex-wife and children at the time. Our daughter was playing with dress ups and put the stockings on herself. She was around seven years old at the time. I took a lot of photos of her when she was playing around the house that day, including when she had the stockings on. After I took that specific photo, I realised it was inappropriate and I should delete it but I forgot about it.
I had no sexualised intent towards my daughter in taking this photo, and nor did I have any intention of sharing or showing these videos and images to others for that purpose. I understand this is paedophilia and is completely wrong.
With regards to (b), I do not remember taking the recording of my daughter where her private parts were exposed, and touching her. It was found on my camera and the hand shown in the recording is a man’s hand. Because of this, I accept it must have been me because I do not know who else it could have been.
I do not know why or understand what could have been going through my mind when I did this. I believe it occurred at the time when I was an alcoholic (see below: Alcohol Abuse). While I understand that my criminal history suggests otherwise, I have no sexual interest or attraction to children, including my daughter.
I was also convicted of possessing child exploitation material. This was after my marriage broke down and I was drinking heavily.
While I accept I had this material on my computer, I did not intend to download this. I did not know what the files were before I downloaded them, and nor had I ever deliberately searched for child pornography material.
At the time this occurred, I was downloading and watching a lot of pornographic pictures and recordings. I was lonely after my marriage breakdown. I was always using torrents. This gave a description of the content and I would download this and many other files at the same time. It was only when I opened some of the files that I sae they included children shown in a sexualised way. I did not get any sexual pleasure watching these files.
I believe my possession of this material, and the way I was downloading and accessing pornography, was linked to my alcohol abuse at the time. Being drunk in this way makes you not care about what is going on, and thinking about the consequences. This is no excuse but I say that I was not properly aware of what I was doing.
I am aware the sentencing judge said I shared child exploitation material online. I never uploaded, shared or posted videos of child exploitation material online or by any other means to my knowledge. I do not know what this referred to. I was convicted of possession offences and I plead guilty to this because this content was on my computer drives.
……”[29]
[29] Ibid, G21, Attachment G4, pp 119-121.
I have had particular regard to all of the facts detailed in the Schedule of Facts upon which the plea was entered. I have not repeated them here in full for the sake of brevity.[30]
[30] Exhibit 3, RTB1, pp 1-8.
The sentencing judge said:
“HIS HONOUR: Would you stand up please, [RBKG]. You are charged on indictment with three counts of indecent treatment of a child under the age of 16, who was under the age of 12 and a lineal descendent and one count of possessing child exploitation material.
You have pleaded guilty at an early time.
The learned Crown prosecutor has set out the facts of this serious offending in a statement. You do not challenge those facts. I have read and take into account the 10 facts set out in exhibit 2.
In very short summary, police discovered you sharing child exploitation material online. When they searched your premises, they found electronic devices containing child exploitation material. On a camera, they found pictures of your own daughter, who was aged five to seven years old at the time. You took photographs or a video recording of her on occasions, exposing her genitals. You dressed her in inappropriate clothing and you touched her vagina to expose her vagina on an occasion. You also shared other child exploitation material online, including numerous photographs and nine movies. That is all set out in detail in the schedule. You were found though in possession of child exploitation material on three separate occasions. One of those occasions was when you were on bail.
You were born on the 20th of February 1976 and were 34 to 41 years old at the time of your offending. You are 43 years old now. You have a criminal history. You have previously been convicted of offences involving breaching directions and requirements and drugs. On each occasion, you were dealt with summarily and fined. You have been in pre-sentence custody for these offences between the 3rd of February 2018 and the 13th of May 2019, a total of 465 days.
I also take into account that you have pleaded guilty and facilitated the administration of justice. You have expressed remorse and you have cooperated with the authorities. You have a good work history and you have worked in the past as a tiler and in other primary industries. You have abused alcohol and that has contributed to your offending, and you have done a substance abuse course whilst you have been in custody. Your relationship with the complainant’s mother has also broken down.
The sentence must help you rehabilitate and punish you in a way that is just in all the circumstances, be proportionate to the nature of the offending, deter you and others from committing this type of offence, make it clear that the community, acting through the courts, denounces this sort of conduct and protect the community.
I have been referred to and take into account, to the extent that they are relevant, the Court of Appeal cases of R v BCX [2015] QCA 188; R v GAE; ex parte Attorney General [2008] QCA 128 and R v Rogers [2009] QCA 10.
The Crown submits that the head sentence should be in the range of three to four years imprisonment and accepts that the head sentence should be suspended after the time already served and that you be placed on probation for a period of time. Your counsel submits that the head sentence should not 5 exceed three years imprisonment, but that it should be suspended immediately after the time you have already served and that you should be placed on probation for a period in the order of two and a half years.
Balancing the relevant considerations, and to reflect the entirely criminality, I make the following orders. The convictions are recorded. Counts 1, 2 and 3 are declared to be domestic violence offences. In relation to counts 1, 2 and 3, I order that you be imprisoned for three years. I order that that period of imprisonment be suspended immediately. The operational period of the order is three years. You must not commit another offence within the operational period to avoid being dealt with under section 146(A) of the Penalties and Sentences Act.
I find that you were in pre-sentence custody between 3 February 2018 and the 13th of May 2019, a total of 465 days, and I declare that to be imprisonment already served under the sentence.
In relation to count 4, I intend to make a probation order. The effect of the order is that you are to be released under the supervision of an authorised corrective services officer for a period of two and a half years.
Have the mandatory requirements been explained? I’ll read them out, Mr Cassidy.
MR CASSIDY: I don’t think I have, no.
HIS HONOUR: The mandatory requirements are that you must not commit another offence during the period of the order. You must report to an authorised corrective services officer at the place and within the time stated in the order. You must report to and receive visits from an authorised corrective services officer as directed. You must take part in counselling and satisfactorily attend other programs as directed by the court or the officer during the period of the order. You must notify your officer of every change in your place of residence or employment within two business days of the change happening. And you must not leave or stay out of Queensland without the permission of your officer. And you must comply with every reasonable direction of an authorised corrective services officer. An additional requirement will be that you submit to medical, psychiatric or psychological treatment as directed.
If you contravene the order without reasonable excuse, you commit an offence for which you may be punished. You may also be brought back and sentenced again for the offence. The order may be amended or revoked on application by you, the officer or the Director of Public Prosecutions.
Do you agree to the order being made and to comply with the order?
DEFENDANT: Yes.
HIS HONOUR: In relation to count 4, a conviction is recorded and I order that you be released under the supervision of an authorised corrective 5 services officer for a period of two and a half years. You must comply with the requirements of section 93(1) of the Penalties and Sentences Act and the additional requirement set out earlier and you must report within 48 hours to an authorised corrective services officer at - - -
MR CASSIDY: Brisbane.
HIS HONOUR: - - - at Brisbane.
Are any further orders required?
MR Le GRAND: Nothing from me. Thank you, your Honour.
MR CASSIDY: No, your Honour. But can I just clarify one point. Your Honour mentioned that he was sharing child exploitation material and that is no doubt based on the agreed schedule of facts at the first paragraph on page 3. Just so the record’s clear, because it may become relevant to other proceedings following this, I understand that term “sharing child exploitation” relates to the fact that there was BitTorrents being accessed, principally downloaded, but through that process, material on his computer was accessible. But as I understand, the Crown position that no material from his computer was distributed to any other person. And certainly, the images the subject of counts 1, 2, 3, involving that complainant, were not in any way available or distributed.
HIS HONOUR: That – is that - - -
MR Le GRAND: That’s right.
HIS HONOUR: - - - accepted by the Crown?
MR Le GRAND: And the images of the accused’s daughter were on the cameras and not shared.
HIS HONOUR: Yes.
MR Le GRAND: Thank you.
HIS HONOUR: Is that satisfactory, that it’s been put on the record?
MR CASSIDY: Yes.
HIS HONOUR: Accepted by the Crown and I’ll note that I’ve sentenced on that basis.”[31]
[31] Exhibit 2, G9, Attachment D, pp 58-63.
The Applicant was sentenced to 3 years imprisonment. This was suspended for 3 years on account of time already served of 465 days (3 February 2018 and 13 May 2019).
In August 2019, the Applicant met JM. He says:
“……
I have been in a relationship with my current partner [JM] since August 2019.
[JM] is 30 years old. She was born in Serbia and moved to Australia when she was around three years old.
We met in Brisbane at King George Square station. We started talking and we clicked because we were both in Serbia.
She is very close with her family, like I am mine, she talks to them frequently, and I also talk to them occasionally.
[JM] and I started living together in September 2019 and lived together until February 2021.
We found out she was pregnant in around mid-2020. I attended all of her doctors’ appointments with her and was supporting her financially during her pregnancy.
She gave birth to our daughter, [Child C], on 9 February 2021.
Shortly before our daughter’s birth, we got advice from Child Safety that [JM] and our child should not live with me until I completed my treatment with Dr Palk. Because of this, [JM] and [Child C] have moved down to Victoria to live with her family. We both hope we can be reunited and live as a family once my treatment with Dr Palk finishes. We speak to each other on the phone every day.
I am happy to comply with ant conditions that Child Safety or the police impose regarding my access to my daughter.
……”[32]
[32] Ibid, G21, Attachment G4, pp 123-124; also note JM’s statement at G21, Attachment G4, pp 125-127.
QLD Corrective Services records for 5 September 2019 report:
“……
Order Conditions Risk Note:
[RBKG] was advised he is required to complete sexual offending programs, as per his Probation Order condition (d). he was advised of the upcoming GSPP program and that he would be contacted by a programs staff member for an intake meeting. While [RBKG] does not believe it is necessary that he engage in programs, he is willing to do whatever is required of his, as per his Probation. His motivation is considered to be externally motivated by his order requirements.”[33]
[33] Ibid, G21, Attachment G4, p 307.
QLD Corrective Services records for 10 December 2019 report:
“Despite challenges from facilitators and the group, he remained unwilling or unable to explore his own personal distortions. As such, it is recommended he engage in intervention which focuses specifically on this to ensure appropriate exploration in the sexual offending treatment programme without distortions.”[34]
[34] Ibid, G21, Attachment G4, 288.
A progress report regarding the Applicant’s participation in the “Getting Started Preparatory Programme” dated 23 January 2020 states:
“……
During [RBKG’s] participation in the GSPP, he accepted some responsibility for the sexual offending, however demonstrated limited insight into his behaviour. In addition, he was able to demonstrate some general empathy for others and his victim, noting…
The following is an overview of [RBKG’s] sexual offending. [RBKG] disclosed being charged with Possessing Child Exploitation Material (CEM) and Indecent treatment of a child under 16 years. [RBKG] disclosed that the victim of the indecent treatment offence was                  who was between seven and ten years old at the time of the offence. Official documentation however indicates the victim was aged around five or six at the time of the offending.
[RBKG] acknowledged his offending began when CEM “accidentally popped up” on a pornography website he was viewing to meet his sexual needs. He reported that he began looking at pornography daily  [RBKG] disclosed using torrents to search for “other stuff” when CEM “popped up.” Despite exploration, he was unable or unwilling to identify what this “other stuff” was. He acknowledged viewing large amounts of materials across a range of categories, including “animal porn” (bestiality). He identified a sexual preference for 13 year old females, noting “vagina’s become attractive after this age.” [RBKG] denied masturbating to the CEM as he was unable to get an erection due to alcohol intoxication despite disclosing having regularly masturbated to adult pornography. When this distortion was challenged, [RBKG] became defensive and stated he didn’t understand due to language barriers.
In relation to the offence against [Child A] and could not identify how this was wrong because the law with his written paperwork in that he stated the “photos were only wrong because the law says so.” During the presentation however, he acknowledged he would not show the images to anyone,                 as they were “too far.”
When exploring the consequences for the victims, [RBKG] focused purely on                   . When asked about the CEM, he denied identifying any victims, which is consistent with information on IOMS where [RBKG] reported being “confused around why his actions constitute a crime.”
……
[RBKG] reported meeting his ex-wife in 2005 before getting married a couple of months after their initial meeting.
……
[RBKG’s] level of engagement with group participants and facilitators in the GSPP was deemed to have been limited. Despite challenges from facilitators and the group, [RBKG] appeared unwilling or unable to explore his own personal distortions, particularly in regards to historical control and expectations in his previous relationships.”[35]
[35] Ibid, G21, Attachment G4, pp 337-339.
On 14 July 2020 the Applicant was convicted of various drug related offences occurring on 23 October 2019. He was fined $500.[36] The Applicant again says that the drugs and pipe were not his.[37] This contradicts QLD Police records which state:
[36] Ibid, G4, Attachment A, pp 39-40.
[37] Ibid, G21, Attachment G4, p 119.
“Charge 1 of 4 / / [DM] 10(2)(b) Possess utensils or pipes etc that had been used
That on the 23rd day of October 2019 at Fortitude Valley in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one [RBKG] unlawfully had in his possession a thing namely pipe that he had used in connection with the smoking of a dangerous drug
and further
Charge 2 of 4 / / [HR] 146(1) Not being endorsed to possess restricted drug
That on the 23rd day of October 2019 at Fortitude Valley in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one [RBKG] had in his possession a restricted drug namely Quetiapine without being endorsed under the Health (Drugs and Poisons) Regulation 1996 to have possession of the said restricted drug
and further
Charge 3 of 4 / / [HR] 146(1) Not being endorsed to possess restricted drug
That on the 23rd day of October 2019 at Fortitude Valley in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one [RBKG] had in his possession a restricted drug namely risperidone without being endorsed under the Health (Drugs and Poisons) Regulation 1996 to have possession of the said restricted drug
and further
Charge 4 of 4 / / [HR] 146(1) Not being endorsed to possess restricted drug
That on the 23rd day of October 2019 at Fortitude Valley in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one [RBKG] had in his possession a restricted drug namely nortriptyline without being endorsed under the Health (Drugs and Poisons) Regulation 1996 to have possession of the said restricted drug.”[38]
[38] Exhibit 3, RTB3, p 99.
On 17 September 2020, the Applicant was given notice of intention to cancel his visa.[39]
[39] Exhibit 2, G25, Attachment J, p 349.
On 5 November 2020, the Applicant was in court charged with failure to comply with reporting on 1 June 2020. He was convicted and fined $500.[40]
[40] Ibid, G4, Attachment A, pp 39.
A report from psychologist Ms Ivannia Mena dated 10 December 2020 was obtained by the Applicant to be used in court. This states:
“It has recently come to light that his current partner had not been aware of his offending behaviour even though [RBKG] had previously stated that she was aware he had served time in custody.
……
At this point, [RBKG] does not have many positive resources at hand to assist in his current circumstances, as he has limited external support, his partner (also Serbian) is limited in her skills and experience and is dependant on his support, and he appears to be receptive to assistance mainly when this is associated with relieving the stress of his current circumstances (financial).
……
With the lack of progress evident thus far, it is considered that [RBKG’s] risk of recidivism remains high and he is encouraged to continue attending psychological treatment for the next 12 months.”[41]
[41] Ibid, G21, Attachment G4, pp 130-132.
The Applicant told the Tribunal that Ms Mena “did not know about “his risk of re-offending and that she had provided another favourable report. This was not produced to the Tribunal. He agreed that he had sought a report from another psychologist hoping to get a better assessment.
The Applicant told the Tribunal that he had only tried cannabis once, long ago. He did not take any drugs, only alcohol. This is quite a different history to the one he gave to the psychologists to whom he reported cannabis use. It is also inconsistent with his drug convictions. It is also clear that the Applicant told psychologists that he only drank in moderation. This is significant when contrasted with his contemporaneous drunk driving convictions.

A QLD Corrective Services letter of 20 January 2021 to Child Safety services relevantly states:
“……
[RBKG] is subject to a probation order in regards to the offence of Possessing child exploitation material. The order is due to expire on 13/11/2021.
……
Review of his GSPP completion report identified that he accepted some responsibility for his offending however demonstrated limited insight into his behaviour. [RBKG’ also claimed that whilst looking for different CEM, he came across a range of categories including bestiality. He identified his sexual preference to be 13-year-old females. He also claimed that the photos of his daughter were ‘family photos’……he claimed that ‘he wanted to remember his daughter’.
Although this is the case, [RBKG] claimed that he was confused around the illegality of the offences, stating the photos were only wrong because ‘the law says so’. [RKBG] identified that he resented his ex-wife when she would shift her focus to their children rather than focusing on sex and intimacy with him. [RKBG] holds strong beliefs of gender roles and women where he identified that ‘sex should be given in a relationship’, ‘the man should be the provider and in control’, and ‘women should listen to men’. Overall, [RBKG’s] level of engagement in GSPP was limited and appeared unwilling to explore any issues or needs in depth. He reported using language as a barrier in deepening conversations which was also confirmed by the psychologist, Mr Mena.
[RBKG] is identified as the aggrieved on the current Domestic Violence Order (DVO) naming his current partner, [JM] as the perpetrator. The order was issued on 3/6/2020 and contains a good behaviour condition only. It is due to expire on 3/6/2025. Collateral with Queensland Police Service (QPS) identified that the DVO was issued after neighbours heard a verbal argument. When QPS arrived, [JM] admitted to throwing items across the room, towards [RBKG].
[RBKG] is also subject to a separate DVO naming his ex-wife, [VS] as the aggrieved, and their children, [Child A] (victim of sex offences), [Child B] and [maternal grandmother], as named persons. The order was issued on 14/9/2017 and contains two good behaviour conditions and two no contact conditions unless testing the aggrieved to contact their children. The DVO states that the respondent [RBKG] was in possession of weapons, namely a baseball bat and a sledgehammer, and identified that [RBKG] used the sledgehammer to smash car windows. This order is due to expire on 13/09/2022. The DVO was made via private application after [RBKG] threatened to kill the aggrieved and their children. The application identified that the children were scared of him and that when he was sitting next to one of them in the car, he told them he wanted to kill them. He also sent a text message to the aggrieved, stating “Do you know you’ll die?”
[RBKG] confirmed on 19/01/2021 that his partner [JM], has a scheduled caesarean for 09/02/2021 at the Mater Hospital (public sector). [RBKG] is a reportable offender through the Child protection Offender Registry (CPOR) [JM] confirmed with the QCS on 23/12/2020 that she is aware [RBKG] committed his offending towards his biological daughter. She appears to be supportive of [RBKG] however there are concerns that this is superficial given his attitude towards women and his ongoing pattern of domestic violence. Further, [RBKG] and his partner advised that they are keeping the sex of the baby a surprise.”[42]
[42] Exhibit 3, RTB5, pp 241-242.
On 9 February 2021, the Applicant’s daughter with JM, Child C, was born.[43] The Applicant was present at the birth, but Child Protection services became involved shortly afterwards. He last saw her 2 days after her birth. He told the Tribunal that he wants to have contact with Child C if he can and to “support her”. He maintains that he is not a risk to Child C.
[43] Exhibit 2, G21, Attachment G4, p 344.
On 11 February 2021 a QLD Child Protection note records:
“……
·We discussed the circumstances surrounding the birth of the baby, TAO and the plan for mum to go to Melbourne following Child Safety interview and assessment of the maternal grandmother.
·I confirmed with Toni that I had been informed that [RBKG] was present at the birth and that he did spend several hours with his baby prior to the TAO being served requiring him to leave the hospital.
·[RBKG] has most likely breached his reporting conditions by not reporting that his baby has been born.
·She said that [RBKG] had been advised that when the baby is worn – he must report it and there is no record of him having done so.
·It is possible that he did report and that it hasn’t been processed yet. [Police] will double check in the morning.
·If he is breached he will get notice to appear in court.
·His probation expires in November 2021
·He is on the CPOR – National Child Protection Offender Registry or a total of 5 years with him having – 3 ½ years to go
·We have him flagged as a high risk. [Police] worries that the parents plan is to meet in Melbourne and flee
·He as one prior fail to comply.”[44]
[44] Exhibit 3, RTB4, p 185.
On 26 March 2021, the Applicant was in court charged with a breach of the suspended sentence imposed on 15 May 2019. The charges were proven, and the suspended sentence was extended for a further 6 months.[45]
[45] Exhibit 2, G3, p 29.
A report from psychologist Mr Gavin Palk dated 29 March 2021, which had been obtained because he was not happy with the report from Ms Mena, states:
“This letter is to advise that [RBKG] self-referred under the mental care health plan to my clinic for treatment related to indecent treatment of a child under 12 years and possessing child exploitation material.
……
[RBKG] reported he was born in Serbia and his family moved to Austria when he was aged 4 years. He says his family returned to Serbia when he was aged 13 years after the war. He recalled when he was aged 18 years his family purchased a chicken and vegetables farm in Serbia. He noted he was raised with his brother who was 18 months younger. His says his parents and brother now reside in Austria and his mother is aged 77 and his father is aged 70 years. He recalled that when he was aged 18 years, he was conscripted into the Serbia army and served for one year in the army.
He says at the age of 30 years he migrated to Australia as a tiler and painter on a work visa then obtained permanent residency after 2 years.
He says he met his first wife in 2005 and they married in 2005. The union produced
one daughter now aged about 15 years and one son now aged about 13 years. He says when he first arrived in Australia he worked for another person and then became a self-employed contractor tiler and still works in this capacity.
……
The fingers of the accused can be seen touching the outside of the vagina.[46]
[46] He denied having done this in his evidence to the Tribunal.
Child pornography images were located by police on [RBKG’s] laptop. These images depicted prepubescent girls in sexual poses, with legs apart and vaginas exposed. There were also images of prepubescent girls being penetrated, sucking an adult male’s penis and a cartoon figure of a girl being annually penetrated with a finger.
……
He was able to explain that the time of his offending he had been consuming alcohol to excess and had been stressed due the separation with his wife and poor finances
and difficulties with meeting his mortgagee repayments. He noted at that time of his life he was also smoking cannabis.[47]
[47] This is contrary in his evidence to the Tribunal that he only used alcohol.
[RBKG] advised that he met his new partner, after he was released from prison. He noted his new partner is age 31 years and migrated to Australia with her family from Bosnia many years ago. The writer notes that his new partner speaks good English and was able to assist the writer at times when there was difficulty understanding.
[RBKG] new partner has recently given birth to a daughter, now aged about 8 weeks. Due to the nature of [RBKG’s] offences, Child Safety required that his new partner live separately to [RBKG]. The new partner is currently residing with her parents and sister in Melbourne. She advised the writer by phone that she intends to remain supportive of [RBKG] and intends to remain in a relationship with him as she loves him.
……
[RBKG] currently resides in Brisbane and continues to work as a self-employed tiler.
He states he has had no contact with his first wife or children since his arrest and does not know where they reside.
……
The writer has provided treatment to [RBKG] across 8 sessions between January and March 2021.
[48] Exhibit 2, G21, Attachment G4, pp 134-138.
……”[48]
On 30 April 2021, the Applicant was caught driving with a blood alcohol reading of 0.168.[49]
[49] Ibid, G5, Attachment B, p 44.
A report from Professor James Freeman (Consultant psychologist) dated 5 May 2021[50] says that “the risk of recidivism primarily relates to him avoiding substance misuse and improving his capacity to avoid instances of non-consequential thinking”.[51] He told Professor Freeman that he was “drinking in moderation”.[52] In evidence to the Tribunal he said that he was not drinking at all at that time.
[50] Ibid, G21, Attachment G4, pp 139-148.
[51] Ibid, G21, Attachment G4, p 146.
[52] Ibid, G21, Attachment G4, p 141.
On 24 May 2021 the Applicant was caught driving with a blood alcohol reading of 0.26.[53]
[53] Ibid, G5, Attachment B, p 45.
On 27 May 2021, the Applicant was caught driving without a license.[54] He had a blood alcohol reading of 0.283.[55] The circumstances of this offending as set out in the QLD Police Brief were as follows:
[54] Ibid, G5, Attachment B, p 46.
[55] Ibid, G5, Attachment B, p 47.
“On the 27th of May 2021 at approximately 12:20am, police from Coorparoo Police Station were performing mobile patrols of Main Street, Kangaroo Point.
At this time Police have observed a green Mazda Utility bearing Queensland Registration [……] driving erratically on Main Street, Kangaroo Point, drifting in and out of the far left hand lane and nearly striking the gutter on multiple occasions.
Police have pulled in behind this vehicle and have activated their emergency lights and sirens in an attempt to intercept the vehicle. The vehicle has continued to drift all over the road as it has turned left onto Thomas Street. Police have followed the vehicle at low speed as it has driven down Thomas Street, appearing to look for a place to stop on the very crowded street.
The vehicle has then turned left onto Elliott Street, Kangaroo Point, before coming to a stop.
Police have quickly conducted a check of the vehicle's registration, revealing that the registered owner, the defendant in this matter, was unlicenced, having had his licence suspended on the 24th of May 2021 in relation to a separate matter.
Police have exited their vehicle and have approached the defendant's vehicle which has suddenly driven off at speed towards Pearson Street, Kangaroo Point as police have approached, failing to stop for police for a prescribed purpose.
Police have quickly returned to their vehicle and have followed the vehicle onto Pearson Street, before observing the vehicle driving to the intersection with Main Street, Kangaroo Point, where it has driven straight through a red traffic light on a busy main road without slowing down, driving without due care and attention.
Police have ceased following the vehicle, and have pulled over and checked their vehicle as per police procedures following an evade.
Police have then performed mobile patrols of Kangaroo Point for the vehicle before observing that the defendant resided at [……]. Police have then returned to Pearson Street, observing that the driveway to the defendant's unit complex was located on Pearson Street.
Police have then parked across the road and have waited to see if the vehicle returned to the defendant's address.
At approximately 12:50am police have heard the screeching of tyres from Main Street, Kangaroo Point. Immediately following these screeches police have observed the Green Mazda Utility bearing Queensland Registration [……] turning left onto Pearson Street from Kangaroo Point. Police have observed the vehicle to be driving at a very slow speed and to still be drifting from one side of the lane to the other.
Police have clearly observed the male driver of the vehicle through the open passenger window and now know him to be the defendant in this matter.
Police have remained parked until observing the defendant drive his vehicle into the carpark of his unit complex, and have followed, intercepting the defendant as he was exiting the driver seat of his vehicle.
Police have immediately detained the defendant and have performed a Roadside Breath Test recording a result above the lawful alcohol limit to drive. The defendant was then transported to the Brisbane City Watchhouse for a secondary test.
Whilst at the Watchhouse police have questioned the defendant in relation to his alcohol consumption, with the defendant stating he had been drinking alcohol constantly for the previous 4 weeks, and had no idea when he had started drinking today or when his last drink was. He stated that he was drinking white wine, that he had no emergency reason for driving and that he has been drink driving for 20 years with no issues.
The defendant has also stated that he was aware that his driver licence had been suspended, and that he had nil emergency reason for driving.
At 1:43am on the same day, upon requirement given and direction made, the defendant has provided a specimen of breath for analysis recording a reading of 0.283 grams of alcohol in 210 litres of breath.
The defendant was subsequently arrested and processed through the watchhouse, where he was charged with driving whilst under the influence of liquor, evade police, driving without due care and attention and driving whilst suspended.
Police have observed that the defendant was currently facing two further charges of driving whilst under the influence of liquor and a further drive whilst suspended. Police have then opposed the defendant's bail and have completed the necessary documents for him to appear before the Brisbane Magistrates Court on the 27th of May 2021.[56]
[56] Ibid, G6, Attachment B1, pp 48-53.
On 27 May 2021, the Applicant was in court charged with failing to comply with a requirement to stop a vehicle and various other motor vehicle offences. He was convicted without punishment. He was disqualified from holding or obtaining a driver’s license for 2 years from 27 May 2021.[57]
[57] Ibid, G4, Attachment A, p 39 and G5, Attachment B, pp 41-43.
By letter dated 23 June 2021, the Applicant was provided with notice of visa cancellation under s 501(3A) of the Act.[58]
[58] Ibid, G14, Attachment G, p 79, G19, Attachment G2, pp 95-98, G20, Attachment G3, pp 99-114 and G27, Attachment L, p 355.
On 15 July 2021, the Applicant completed a request for revocation of mandatory cancellation of his visa.[59] In this he states:
“To stay in Australia with my partner, [JM], and our five month old daughter, [Child C]. they are both Australian citizens. They cannot go with me to Serbia because they would be in danger there, but they would have a very difficult life if they stay in Australia without me.
I have lived and worked in Australia for 15 years. If I am allowed to stay here, I will be resuming my employment in tiling and flooring.
My offending is linked to my issues with alcohol abuse. I relapsed recently because of the stress and suffering due to being separated from my partner. I will never touch alcohol again. My partner has said she will leave me if I drink alcohol again, or if I get into any trouble.
I would be in danger if I had to go back to Serbia. I will provide further information on this.
……
I [RBKG] LIVE AND WORK AS A PROFESSIONAL TILER WITH MY OWN BUSINESS IN QUEENSLAND, AUSTRALIA SINCE 2006. I MARRIED IN YEAR 2005 IN SERBIA AN AUSTRALIAN CITIZEN. WE HAVE TWO CHILDREN BORN AND LIVING IN AUSTRALIA.
I DIVORCED Y WIFE IN 2017. I STARTED TO HAVE A NEW RELATIONSHIP WITH MY NEW PARTNER [JM] IN AUGUST 2019. WE HAVE 7 MONTHS OLD DAUGHTER IN BRISBANE QLD. [JM] AND OUR DAUGHTER ARE DEPENDENT ON ME BECAUSE [JM] CANNOT WORKING. WE HAVE PLANNED TO GET MARRIED IN 2022 AND BUYING NEW FAMILY HOUSE. IF I WOULD HAVE TO LEAVE AUSTRALIA MY PARTNER AND OUR CHILD WOULD STRUGGLING WITHOUT MY SUPPORT AND WOULD HAVE FINANCIAL DIFFICULTIES. I FEAR FOR MY LIFE TO GO BACK TO SERBIA BECAUSE I BORROWED IN YEAR 2005 €45000 EURO FOR MY WEDDING FROM A DANGEROUS CRIMINAL ORGANISATION AND COULDN’T PAY THE MONEY BACK. THAT WAS THE REASON WHY I NEVER LEFT AUSTRALIA AND TRAVELLED OVERSEAS SINCE I ARRIVED. I DO NOT OWN ANYTHING IN SERBIA AND HAVE NO FAMILY OR RELATIVES IN THE COUNTRY OF SERBIA. I AM AFRAID TO LEAVE AUSTRALIA AND TO LIVE ON THE STREET IN SERBIA. I WISH TO REVOKE MY VISA AND STAY WITH MY FAMILY IN AUSTRALIA.”[60]
[59] Ibid, G14, Attachment G, pp 81-84.
[60] Ibid, G14, Attachment G, p 82 and G19, Attachment G2, p 97.
On 26 July 2021, the Applicant was in court charged with a breach of the suspended sentence imposed on 14 May 2019 and extended on 26 March 2012. He was convicted and sentenced to 24 hours imprisonment.[61]
[61] Ibid, G4, Attachment A, p 39.
A letter from the Victorian Department of Families, Fairness and Housing dated 28 October 2021 to the Applicant states:
“Re: your daughter, [Child C].
……
I would like to confirm the expectation of Child Protection that no contact can occur between [Child C] and yourself, at this time. This includes in person, calls and video contact. Ms [JM] is aware of this expectation, and has agreed to this.
For Child Protection to consider a review regarding change in the above, we would require specialist assessments and intervention of yourself to be completed. I am aware that you are unable to complete these as you are currently in immigration detention. Please note, reviewing this risk assessment does not mean that the recommendations made by Child Protection will change, this will be reviewed at the time.”[62]
[62] Ibid, G23, Attachment H, p 345.
A letter from the Victorian Department of Families, Fairness and Housing dated 19 May 2022 to the Respondent states:
“I wish to inform of the Child Protection involvement with [Child C], who remains in the primary care of her mother, [JM].
Child Protection in Victoria became involved following a report of concern on 23/03/21, which informed that [JM] had relocated to Melbourne with [Child C], as part of safety planning conducted by Child Safety Queensland. [JM] had been informed by Child Safety Queensland of [RBKG’s] offending at six months gestation. She continued a relationship with [RBKG] and had intended to live with him and have [Child C] in their care, prior to the intervention in the days after [Child C’s] birth by Queensland Child Safety. Queensland Child Safety indicated that legal intervention would have occurred should [JM] not have voluntarily travelled to Victoria.
Concerns reported regarding [RBKG], were that he had been convicted of making and possessing Child Abuse Material, some of which he produced using his older daughter who resides with her mother and sibling in Queensland. This offending occurred over a period of time.
Child Protection intervention with [JM] occurred over several months, ceasing in October 2021. During the investigation, [JM] was not able to articulate the risk [RBKG] posed to [Child C], becoming too upset on each occasion discussion was attempted. [JM’s] continued narrative was that this change to her family life was imposed on her (by statutory authorities). [JM] has not acknowledged the role of her decision making in remaining with [RBKG], as contributing to her situation. [JM] appears to prioritise family life over any risk to [Child C]. At the commencement of our involvement, [JM] had stated her intention to live with [RBKG] in Serbia, should he be deported. [JM] later continued to confirm that this would not occur.
[RBKG] was interviewed via phone, as at the time he remained in Immigration Detention. [RBKG] shows very limited insight into the seriousness of his offending, or the impact of his offending. He was not able to inform of any negative effect his actions may have on his children, other that it depends on what they are told about his offending. [RBKG] focussed on the family unit being broken down, rather than a consideration of risk and protecting children from harm. [RBKG] stated he will seek to have contact with his older children when able, as there are currently restrictions around this due to an Intervention Order being in place. [RBKG] described his offending as essentially situational, that he was drinking alcohol excessively at the time, but stated that does not excuse his offending.
There are some discrepancies between the parents narrative. [RBKG] informed that he told [JM] of his offending, but not the full detail, approximately a month into their relationship. [JM] informs she was told by Queensland Child Safety at six months gestation. [RBKG] denies that [JM] has been providing him with financial support. This contradicts [JM’s] assertions that she has been giving him money while he has been in prison and immigration detention. [JM] refers to [RBKG] as her ex-partner, [RBKG] states he considers them together, and that [JM’s] is stating this to Child Protection as she is afraid of the consequences.
I am aware that [RBKG] has made several applications to be moved to an Immigration Detention centre in Melbourne, to be closer to [JM’s] and [Child C]. [JM] had not informed Child Protection of these applications, despite being fully aware of them herself. [RBKG’s] plan if he is to remain in Australia, would be to live as a family with [JM] and [Child C]. He acknowledged this would only occur if Police and Child Protection say this was able to be done, he informed he would not do this illegally.
[RBKG] has not met [Child C] in person. [JM] had been allowing video contact with [RBKG] and [Child C] despite previously agreeing to no contact. When brought to her attention, [JM] then agreed to not continue with this contact. [JM] indicated her intention to take [Child C] to visit [RBKG] to say goodbye should he have been successfully transferred to Melbourne Immigration Detention, and should he be deported. [JM] has agreed to not allow this contact, only after additional discussion with Child Protection.
Child Protection have substantiated the likelihood of harm to [Child C], and consider [RBKG] as likely to cause this harm. [RBKG] has directly offended against one of his children, and the likelihood of him perpetrating this harm against another of his children, needs to be strongly considered. [Child C] is a very vulnerable child who has no ability to protect herself. The expectations outlined below have been provided to both parents. During this involvement, no applications for Protection Orders were made for [Child C], mostly due to the safety provided by her father remaining in Immigration Detention.
On ceasing Child Protection involvement with [Child C], Child Protection have left both parents with the expectation that no contact can occur between [Child C] and her father, [RBKG]. This includes in person, calls and video contact.
For Child Protection to consider a review regarding a possible change to the above expectation, Child Protection would require specialist assessments and intervention of [RBKG] to be completed. I am aware that he is unable to complete these as he is currently in Immigration Detention. Both parents have been informed that reviewing his risk assessment, does not mean that the recommendations made by Child Protection will change.
Child Protection are not agreeable for [RBKG] to live with [Child C] throughout her childhood. If any contact were agreed to occur, it would likely be for fully supervised sessions consisting of a few hours, and would likely occur not even on a weekly basis. Ms [JM] has been assessed as not appropriate to supervise any contact between [Child C] and her father. Child Protection would also recommend similar assessments and intervention for Ms [JM], as she does not acknowledge the risk [RBKG] poses to [Child C].”[63]
[63] Ibid, G24, Attachment I, pp 346-348.

The Applicant has generally been employed in Australia as a tiler. He has been a taxpayer.
The Applicant accepts that he has a problem with alcohol. He said that he was addicted to alcohol and that he drank to deal with his depression. He agreed that he can’t control himself when he drinks and that he becomes “careless”. He agreed that he had given incorrect reports of his alcohol use to psychologists. His reported use of cannabis in psychologist reports is totally contrary to his evidence to the Tribunal.
In a report prepared by Dr Gavan Palk dated 29 March 2021, it states:
“[RBKG] displayed regret for his offences and says he has not used cannabis since the time of his arrest, and he has curtailed his consumption of alcohol and only occasionally consumes alcohol.”[64]
[64] Ibid, G21, Attachment G4, p 135.
In the Applicant’s personal statement, he stated:
“……
I am a recovering alcoholic.
I always used to drink regularly it became bad when my ex-wife and I began to have problems with our relationship. It started by having a couple of beers after work but it gradually got worse.
Alcohol was all I could think about when we were separated. I was depressed.
I would drink at home, usually on my own. Sometimes, it would be two six packs of beer or a bottle of wine. This was every day.
This was how I would drink until around seven months before I was arrested. At this time, I had moved to Forest Lake. My ex-wife and I had sold our house.
The drinking got worse once I moved to Forest Lake. I was using my share of the sale of the house to spend on alcohol. It got to the point I was spending close to $200 to $300 a day on alcohol.
Being an alcoholism affected me both physically and mentally. I would often vomit from being drunk. I lost my driver’s licence due to drink driving which prevented me from working. Losing my job was hard because it gave me a routine. Without work, I was bored. I was drinking to feel better, it got me up in the morning and helped me to get to sleep at night.
Alcohol made me not care. I was not in control of myself. When you’re drunk, you know what you’re doing but it is like you do not care or worry about the consequences and later you’d see it was wrong. You’d get sober and think, “why did I say this.” This is what I mean by not having control.
This was my habit up until I went to prison in February 2018.
I thought about quitting drinking. I could see how bad it was. I would get the shakes and sweating when I wasn’t drinking. I could not control my body. The only time I felt normal was when I was drinking, but it wasn’t really normal.
I got a couple addresses for agencies so I could go to ask for help with giving up alcohol. I kept putting it off, I would tell myself, “not today, go tomorrow”. I never went.
……
I have been on a probation order since May 2019. I will be on this order until the end of 2021.
I have been in regular contact with my probation officer, I usually speak to the or have reports at their office, once or twice a week.
I have done around fifteen therapy sessions with a psychologist that my probation officer organised. It has been helpful to speak to her about stressful things that have been going on, such as when I did have a job or a stable place to live.
My probation officer also referred me to do sexual offending treatment. I completed the Getting Started Program, which was around 9 group sessions, I was recommended to do the Medium Intensity Sexual Offending Program (“MISOP”) and was on track to do this until my probation officer said I could not do it because of my immigration status.
Because of this, I have been doing sexual offending treatment program with Dr Gavan Palk. This involves sessions in his office and completing a work book. I have been doing this so I can understand better why I committed these crimes. Dr Palk is also helping me to develop plans to stay out of trouble about this, and to learn about my mistakes and thoughts. I have completed all chapters of this program with him.
I am scared to look at pornography sites. After my crimes, I have no interest in this, I think it is dangerous because I cannot control what I access.
I have been committed to abstaining from alcohol since my release from prison. My partner has helped me with this a lot. She does not drink alcohol, even before her pregnancy, she did not like to drink. She is aware I used to be an alcoholic and is a huge help to me.
I know it is easy to fall back into addiction, I believe in maintaining no alcohol for this reason. I have managed this far better than I thought I would.”[65]
[65] Ibid, G21, Attachment G4, p 121 [49]-[59] and p 123 [72]-[79].
The Applicant reported no particular physical or mental health issues aside from high blood pressure, which he manages with medication.
If the Applicant were to be released into the community, he would like to return to working as a tiler and would want to be with JM and Child C. This would only happen if it was permitted. The evidence set out above suggests that this is most unlikely. His relationship with JM has been poor, but it is now alright again, according to him. He has no other family in Australia, aside from his estranged former wife, Child A and Child B.
The Applicant has a significant criminal history,[66] The most serious offending relates to CEM as discussed above. A copy of his record of convictions is annexed hereto and marked “B”.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant does not pass the character test for the reasons set out above.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. 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 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[67]
[67] 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.
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)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a 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 four 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 best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)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:[68]
“…Direction 65 [now Direction 90] 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.”[69]
[68] [2018] FCA 594.
[69] 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 about 2011 according to QLD police estimates of the age of CEM found in his possession. This was not discovered until October 2016. He has also engaged in driving offences and drug offences as set out above.
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 Applicant’s conduct as set out above includes Family Violence as defined in the Direction, and Child Exploitation offences. His own daughter, Child A was a victim. This is 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’s conduct is such that he does not pass the character test and he has offended against Child A.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) 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 length of the sentence imposed on the Applicant is an indication that his offending is very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
There is no clear trend in the Applicant’s offending, but it has occurred over a considerable period of time.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending is serious. He has offended against his own infant daughter as well as possessing CEM that has been produced by the exploitation of other children. His driving record is very serious, and it is possibly only good fortune that has prevented serious injury, or even a fatality.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence of this.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about 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.
There is no evidence of this.
I do not consider factors (d), (f) and (g) 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
The Applicants’ past offending has been heinous. Any repetition of his most serious offending would involve the victimisation of children. Consuming child exploitation material is not only indicative of aberrant sexual tendencies, it encourages the production of more such material, thereby damaging ever more young victims. His drink driving, if continued, could easily lead to death or serious injury to other members of the community.
Likelihood of engaging in further criminal or other serious conduct
In addition, child safety experts are also very concerned about the risk of the Applicant having access to, or even contact with Child C.

There is no evidence before the Tribunal regarding this assertion, beyond the Applicant’s evidence. He was unable to be more specific about who these people were.
The Applicant has not sought a Protection Visa.
I have come to the view that the Tribunal is faced with untestable assertions regarding the Applicant’s notoriety and status of interest to unknown parties, and his likely treatment upon return to Serbia. I am in no position to adequately assess these assertions.
The Law – Non-refoulment
Section 499 of the act provides as follows:
“Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
(4) Subsection (1) does not limit subsection 496(1A).
The Tribunal is accordingly bound to comply with any such direction.
The currently applicable direction is Direction 90.
Under the heading of “other considerations”, Direction 90 provides as follows:
9. Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
9.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) 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. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a 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 non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible 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. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non refoulement obligations.
9.2 Extend of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
A claim by the Applicant of harm or disadvantage that is not found to come within Clause 9.1 may nevertheless be relevant to Clause 9.2. It is also to be noted that “other considerations” are stated to “include (but not be limited to)” the specific considerations set out in Clauses 9.1 to 9.4.2. This may be relevant in some cases.
Given that Direction 90 is made under the Act, unless there is express reason to do otherwise,[75] it should be interpreted in a way that is consistent with the Act as a whole. In this context, it is also relevant to have regard to other provisions of the Act.[76]
[75] The Minister has given “directions that would be inconsistent with this Act or regulations” contrary to S 499 (2).
[76] Sections 5H, 5J, 5K, 5L, 5LA, 36, 91R (3), 197C, & 198 of the Act.
The relevant date at which to make an assessment of the Applicant’s status is the time at which the decision is made, not at any earlier time.[77]
[77] MIEA V Singh (1997) FCR 288.
The task of the Tribunal is to:
“Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J.”[78]
[78] Minister for Home Affairs v Omar (2019) FCAFC 188 at [39].
This issue has been the subject of recent High Court consideration in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. In that case the majority of the Court said[79]:
“36. The Delegate was required to read, identify, understand and evaluate the plaintiff's representations. The Delegate's reasons record that they did so. The Delegate accurately identified that the plaintiff's representations raised a potential breach of Australia's non-refoulement obligations but said that it was unnecessary to determine whether non-refoulement obligations were owed in respect of him because he was able to make an application for a protection visa, "in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing that application". The Delegate decided not to bring the plaintiff's representations in relation to non-refoulement to account (in the sense of giving weight to them and balancing them against other factors) in making the Non-Revocation Decision, reasoning that a protection visa application was "the key mechanism provided for by the [Migration Act] for considering claims by a non-citizen that they would suffer harm if returned to their home country". That approach was not inevitable, but it was not erroneous.
37. Contrary to the plaintiff's submissions, the Delegate's reasons do not reflect a misunderstanding of the operation of the Migration Act. For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
38. The Court is not "astute to discern error" in the reasons of an administrative decision-maker73 . The Delegate's reasons convey that the Delegate had read and understood the plaintiff's claim and proceeded on the basis that non-refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non-refoulement obligations as "another reason" for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness.
39. Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked.
40. Here, the reasons record the Delegate's consideration of the issues of fact presented by the plaintiff's non-refoulement claims. The Delegate stated that they had considered the plaintiff's "claims of harm upon return to [South] Sudan outside the concept of non-refoulement and the international obligations framework" and that they accepted that, "regardless of whether [the plaintiff's] claims [were] such as to engage non-refoulement obligations, [the plaintiff] would face hardship arising from tribal conflicts were he to return to [South] Sudan". The harm, which formed the basis of his non-refoulement claims, was that if he was returned to South Sudan he faced persecution, torture and death. In concluding that they were not satisfied that there was another reason to revoke the Cancellation Decision, the Delegate stated that they had "considered all relevant matters including ... an assessment of the representations received in relation to the invitation for the purposes of s 501CA(4)(a)". The Delegate concluded that the plaintiff represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed both the interests of his children and "other countervailing considerations", which would include the hardship identified by the Delegate.”
[79] Gageler J substantially agreed with the majority, being Kiefel CJ, Keane J, Gordon J and Steward J.
I consider that the Applicant has “raised a potential breach of Australia's non-refoulement obligations” but, applying the reasoning in Plaintiff M1 (above), I have formed the view that it is “unnecessary to determine whether non-refoulement obligations (are) owed in respect of him because he (is) able to make an application for a protection visa”. Having regard to the Applicant’s submissions and the decision in Plaintiff M1 (above), I do “not give weight to potential non-refoulment obligation as another reason” for revoking the Cancellation Decision.
This consideration carries no weight, for the reasons set out above.
This consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, 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 46 years of age and aside from high blood pressure, which he manages with medication, in good health.
He has skills as a tiler. He has also worked in construction, security and farming.
He has lived in Serbia for a substantial portion of his life. He is familiar with the language and culture.
The Applicant claims to have no family remaining in Serbia. He told the Tribunal that it is hard to get work there. I accept that there would be some initial difficulties at least, in re-establishing himself in Serbia.
This consideration however, weighs slightly in favour of revocation of the Applicant’s visa cancellation. I note that if the Applicant sought and was granted a protection visa, this other consideration would not arise.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider 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 direct evidence concerning this other consideration.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has lived in Australia for 16 years, arriving here as a 30 year old adult.
He has been employed here and started his own business as a tiler. He has contributed as a taxpayer.
As set out above, it seems that the Applicant’s significant relationships in Australia are with JM and Child C. There are complexities associated with this relationship as set out above.
The Applicant called no witnesses to speak on this matter. A letter of support was provided by a Mr B.[80] No other particular connection was raised as being significant by the Applicant.
[80] Exhibit 2, G21, Attachment G4, p 129.
This Other Consideration (d), paragraph 9.4.1 of the Direction, when taken at its best for the Applicant, weighs slightly in favour of revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests
There was no evidence on this topic so this consideration is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral
(b)extent of impediments if removed: weighs slightly in favour of revocation
(c)impact on victims: neutral
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs slightly in favour of revocation; and
(e)the impact on Australian business interests: neutral
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 weighs against revocation.
Primary consideration 3 weighs against revocation.
Primary consideration 4 weighs against revocation.
Other considerations, (a) and (c) are neutral.
Other consideration (b) and (d) weighs slightly in favour of revocation.
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 s501CA (4)(b)(ii) to revoke the original decision.
Decision
The decision under review is affirmed.

I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

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

Dated: 20 October 2022

Date of hearing: 6 October 2022

Advocate for the Applicant:

Self-Represented

Advocate for the Respondent:
Ms Cody Allen

Sparke Helmore Lawyers

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Respondent

Statement of Facts, Issues and Contentions filed 13 September 2022

2

Respondent

G-Documents filed 18 August 2022

3

Respondent

Tender Bundle filed 13 September 20222

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Beenleigh Magistrates Court

18/08/2015

Contravene Direction or Requirement

No conviction recorded

Fined $200

Beenleigh Magistrates Court

07/12/2016

Contravene Direction or Requirement

No conviction recorded

Fined $250

Beenleigh Magistrates Court

19/12/2017

Failure to appear in accordance with undertaking (on 10/11/2017)

Failure to appear in accordance with undertaking (on 29/11/2017)

On all charges: No conviction recorded

Fined $600

Richlands Magistrates Court

10/01/2018

Contravene of domestic violence order (between 04/12/2017 and 02/01/2018)

Conviction recorded

Fined $600.00

Richlands Magistrates Court

19/01/2018

Breach of bail condition (on 25/12/2017)

Conviction recorded

Fined $300.00

Beenleigh Magistrates Court

23/01/2018

Possessing dangerous drugs (on 19/10/2016)

Possessing dangerous drugs (on 19/10/2016)

Possess utensils or pipes etc that had been used (on 19/10/2016)

On all charges: No conviction recorded

Fined $750

Beenleigh Magistrates Court

23/01/2018

Breach of bail condition (on 15/12/2017)

No conviction recorded

Fined $400

Richlands Magistrates Court

31/01/2018

Breach of bail condition (on 10/01/2018)

Conviction recorded

Fined $200.00

Brisbane District Court

14/05/2019

Possessing child exploitation material

Conviction recorded: Probation (30 months)

Brisbane District Court

14/05/2019

Indecent treatment of child under 16 (take photograph etc) child under 12 years lineal descendent/guardian/carer – domestic violence offence (2 charges between 01/01/2011 & 20/10/2016 & 01/01/2014 & 20/10/2016

Indecent treatment of children under 16 child under 12 years lineal descendent/guardian/carer – domestic violence offence (between 01/01/2014 & 20/10/2016)

On all charges: convicted – sentences to 3 years imprisonment

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions filed 13 September 2022
2	Respondent	G-Documents filed 18 August 2022
3	Respondent	Tender Bundle filed 13 September 20222

Court	Court Date	Offence	Court Result
Beenleigh Magistrates Court	18/08/2015	Contravene Direction or Requirement	No conviction recorded Fined $200
Beenleigh Magistrates Court	07/12/2016	Contravene Direction or Requirement	No conviction recorded Fined $250
Beenleigh Magistrates Court	19/12/2017	Failure to appear in accordance with undertaking (on 10/11/2017) Failure to appear in accordance with undertaking (on 29/11/2017)	On all charges: No conviction recorded Fined $600
Richlands Magistrates Court	10/01/2018	Contravene of domestic violence order (between 04/12/2017 and 02/01/2018)	Conviction recorded Fined $600.00
Richlands Magistrates Court	19/01/2018	Breach of bail condition (on 25/12/2017)	Conviction recorded Fined $300.00
Beenleigh Magistrates Court	23/01/2018	Possessing dangerous drugs (on 19/10/2016) Possessing dangerous drugs (on 19/10/2016) Possess utensils or pipes etc that had been used (on 19/10/2016)	On all charges: No conviction recorded Fined $750
Beenleigh Magistrates Court	23/01/2018	Breach of bail condition (on 15/12/2017)	No conviction recorded Fined $400
Richlands Magistrates Court	31/01/2018	Breach of bail condition (on 10/01/2018)	Conviction recorded Fined $200.00
Brisbane District Court	14/05/2019	Possessing child exploitation material	Conviction recorded: Probation (30 months)
Brisbane District Court	14/05/2019	Indecent treatment of child under 16 (take photograph etc) child under 12 years lineal descendent/guardian/carer – domestic violence offence (2 charges between 01/01/2011 & 20/10/2016 & 01/01/2014 & 20/10/2016 Indecent treatment of children under 16 child under 12 years lineal descendent/guardian/carer – domestic violence offence (between 01/01/2014 & 20/10/2016)	On all charges: convicted – sentences to 3 years imprisonment