RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2738

RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2738 (22 August 2022)
AppID:RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType: Migration
Division:GENERAL DIVISION
File Number(s): 2022/4476
Re:RDYQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:22 August 2022
Place:Sydney

The decision under review is affirmed.
...............................[sgd]........................................
Mrs J C Kelly, Senior Member
Catchwords
MIGRATION – visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under s 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – reviewable decision affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3498
Plaintiff M1/2021 [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875Wu and Minister for Immigration and Citizenship [2012] AATA 834
Secondary Materials
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
Mrs J C Kelly, Senior Member
22 August 2022
Introduction

The applicant is a 39-year-old dual citizen of Canada and the United States of America. He is currently 39 years of age. He first arrived in Australia in December 2013 as the holder of a Work and Holiday (Class US) (subclass 462) visa. In 2017 he was granted a Partner (Class BS) (Subclass 801) visa. He has not departed Australia since his arrival.
Taskforce Argos commenced an investigation into numerous people using Australian Internet Protocol (IP) addresses to share known child pornography over peer to peer sharing applications. An IP address was identified that was an Australian account registered to the applicant’s wife. On 6 February 2018, Taskforce Argos downloaded two video files containing child pornography material that had been made available by the applicant.
On 19 March 2018 state police officers executed a search warrant at the applicant’s residence and seized numerous electronic devices.
Thereafter, the applicant was charged, released on bail and on 5 July 2019, he pleaded guilty to, and was convicted of, possessing child exploitation material for which he was sentenced to two years’ imprisonment, suspended after serving four months. That is a State offence. He was also convicted of use a carriage service to transmit, make available, publish, distribute, advertise or promote child pornography material and sentenced to 12 months’ imprisonment, to be released after serving to and including 5 November 2019 on recognisance $1,000 good behaviour period two years. The second offence is a Commonwealth offence. The terms of imprisonment were to be served concurrently.
On 10 September 2019, the applicant was notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c) of the Act).
On 4 October 2019, the applicant sought revocation and provided submissions and further evidence in support.
On 26 May 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.
On 1 June 2022, the applicant applied to the Tribunal for review of the non-revocation decision.
Issues
That the applicant does not pass the character test for the purpose of s 501CA(4)(b)(i) of the Act is not in dispute. He has a substantial criminal record because he has been sentenced a term of imprisonment of 12 months or more (ss 501(6)(a) and 501(7)(c)) of the Act).
The issue to be decided is whether there is another reason why the original decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act having regard to the relevant policy made pursuant to s 499 of the Act, Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
Direction 90
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task, relevantly, in exercising powers under s 501CA of the Act. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(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 the 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 measureable risk of causing physical harm to the Australian community.
Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Each relevant consideration will be addressed in turn.
Primary considerations
Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) of Direction 90 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1 of Direction 90 sets out the matters to which regard must be had when considering the nature and seriousness of the non-citizen’s criminal offending.
The sentencing judge found that the possessing child exploitation material was the more serious of the offences the applicant committed.
The sentencing remarks included the following facts. A laptop and a hard drive were seized by police when a search warrant was executed at the applicant’s residence. The micro hard drive was examined and was found to contain 30 torrent files and 30 torrent fragment files.
The sentencing judge explained that the torrent program provides for the sharing of information, “clearly, for innocent use, but, unfortunately, it is also is used for nefarious purposes, such as in your case”.
An analysis of the devices found 5,559 child exploitation images and 123 movies. They were categorised according to the “Oliver scale” a scale from category 1 to 5 – category 5 being the most serious. Over 4,600 images and nine movies were in category 1, 28 images and 10 movies were in category 2, 200 images and four movies were in category 3. “But particularly disturbingly, 225 images and 96 movies in category 4 and 225 images and four movies in category 5”.
The sentencing judge said:
It is noted that 100 out of the 123 movies involved category 4 or higher. It has to be said that the number of 5559 images and 123 movies, it is sad to say, tends towards the lower end of what often comes before this court. That said, a significant proportion of that number fall within those categories four and five, to which I have referred. It is agreed that the movies located on the device primarily depicted adult males engaging in penetrative sexual intercourse with pre-pubescent girls, most of whom appeared under the age of 10 and, even more disturbingly, many were infants. And, indeed, it would appear that a majority of the videos depicted girls aged towards the lower end, and, indeed, from very early years of infancy up to 10 years of age.
I do not intend to describe in detail the vile nature of a number of the images and videos that are set out in the agreed schedule of facts, suffice to say that they involved prepubescent girls being tied up, raped orally and vaginally by adult males, and being tortured by the use of hot wax and other items. There are also images involving penetrative sex with animals and other degrading activities involving prepubescent young girls. The images clearly showed a number of these young victims being dealt with whilst in a clearly distressed state. It was identified that the majority, if not all of the material, came from international sites, including South East Asia and Eastern Europe.
It is well recognised that this offending cannot be described as a victimless crime. You have only got to hear what I have said to realise that these unfortunate children are being subjected to acts that go well beyond the comprehension of any reasonable person. They are not only subjected to those acts, but, of course, are kept in conditions that we could not even begin to comprehend.
The sentencing judge observed:
…the maximum penalty is 14 years. Now, it has increased to 14 years in a relatively short space of time, from five, to 10 to 14 years, as I understand it. That, no doubt, reflects just how seriously the community has come to view offending such as this, and also, no doubt, in recognition of the proliferation and the seemingly, if one can even imagine it, increasing level of depravity that is involved… That said, though, as sad as it is to say, given this type of offending the maximum penalty is 14 years, and your offending is nowhere near the upper level.
Later in his remarks, the sentencing judge said:
… As I have already indicated, a number of these images involve very young infants and the nature of those images could only be described as not only disgraceful, but indicative of totally depraved and deviant behaviour. Also to have particular regard to the need to deter similar behaviour by other offenders to protect children.
There can be no doubt that deterrence looms particularly large in cases such as this. Hopefully the sentence that I impose would be one that would deter you from similar offending, … Nonetheless, the sentence that I impose has to send an appropriate message to the public at large, to let people know that if they commit this type of offence they will be dealt with in a salutary manner.
The sentencing judge accepted that the applicant’s pleas of guilt indicated that the applicant was feeling remorse and shame for his offending. He found that there was no evidence to suggest that the applicant was a direct threat to a child under 16 actually living within the community. He took into account the applicant’s physical and mental health issues and the possible cancellation of his visa, either automatically if sentenced to “an actual period of custody” or discretionary cancellation.
The images and videos described by the sentencing judge are violent and sexual and involve children. While the applicant did not commit any of the acts portrayed in those images or videos and did not film or take photographs of those acts, his downloading of the images contributes to the demand for such material which generates its supply and the consequential incalculable harm to the vulnerable children who are the victims.
The Respondent referred to cases in the Tribunal where the seriousness of the offence of possessing child exploitation material was discussed, including Metcalfe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3498 at [74] and Wu and Minister for Immigration and Citizenship [2012] AATA 834 at [51].
Paragraph 8.1.1(1)(a) of Direction 90 specifies that the following types of crime or conduct are viewed very seriously by the Australian Government and the Australian community:
(i)Violent and/or sexual crimes, and …
Paragraph 8.1.1(1)(b) specifies conduct that is considered by the Australian Government and the Australian community to be serious. It includes:
(ii)crimes committed against vulnerable members of the community (such as the elderly and disabled), or … .
The Respondent’s reference to what was said in Metcalfe is incomplete. It referred only to paragraph 8.1.1(1)(b)(ii) of Direction 90 being engaged. The member in that case also specified paragraph 8.1.1(a)(i) and stated that the offence was a very serious crime of a sexual nature.
The offence of possession of child exploitation material in this case is viewed very seriously by the Australian Government and the Australian community as it falls within paragraph 8.1.1(1)(a)(i) of Direction 90. It was also in relation to children who are vulnerable as described in paragraph 8.1.1(1)(b)(ii).
I accept the sentencing judge’s assessment that the second offence relating to use of a carriage service, was at “a relatively low level”.
Paragraph 8.1.1(1)(c) of Direction 90 requires that the sentence imposed by the courts to be considered. The applicant was sentenced to a term of imprisonment in respect of both offences. A term of imprisonment is the last resort in the hierarchy of sentencing and reflects the objective seriousness of the offence.[1] The maximum available sentence for the possession offence was 14 years imprisonment. The sentence imposed was two years, suspended after four months. The court imposed a sentence of 12 months for the less serious offence, to be released after serving effectively four months, on recognisance $1,000 good behaviour period two years. The maximum available sentence was 15 years imprisonment.
[1] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
It is relevant pursuant to Paragraph 8.1.1(1)(d) of Direction 90 that the applicant has no prior criminal record. However, that fact demonstrates how serious the court considered both offences to be by imposing sentences of imprisonment.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[2]
[2] Direction 90, Paragraph 8.1.2(1).
When considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the first consideration is the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal conduct.[3]
[3] Direction 90, Paragraph 8.1.2(2)(a).
If the applicant reoffended, incalculable physical and/or psychological harm could be suffered by vulnerable children in Australia who may be exploited for the purpose of generating the material sought by the applicant.
The respondent contended that this is a case where the nature of harm is so serious that any risk of reoffending is unacceptable (paragraph 8.1.2(1) of Direction 90). The potential for such harm would be reduced by the applicant’s removal from Australia.
Following is a summary of the applicant’s evidence that is relevant to the assessment of his risk of reoffending. He first looked at pornography in early high school. He soon became addicted and watched daily. The only type available to him were the few previews that last only a couple of seconds. Once he was in Korea in 2009, he was downloading “torrents” and wondered if there were any porn torrents. He found illegal “torrents”. He knew then and now that what he did was wrong, “but the rush I got from doing something so against the law also gave me a rush of endorphins that I had never felt before”. He claimed that at the same time, he was sickened that he could do that and deleted the files straight away. “But it was also something now that my mind and body knew could be a source when I was feeling especially low.”
Another account he gave for his offending was that his Autism Spectrum Disorder (ASD) and Noonan’s syndrome held back his mental/emotional growth which led him to getting easily frustrated, angry, nervous and anxious when things did not go as he expected. He would then try to “find a pressure valve”. He believed that had led to his offending because he was crying out for help in the only way he was able to formulate at the time.

He attributes his situation to mental illness and depression. After his arrest he went into deeper depression, was given medication and noted changes immediately with the speed he reacted to people. He started to attend therapy which allowed him to start to process his actions and the damage he had caused. He attended over 30 sessions and looks forward to having the chance of more in-depth sessions upon release.
The applicant set out a plan for his future after release into the community. He planned to reactivate his private health insurance when released, to consult a GP and start a mental health plan which he hoped would involve being an inpatient or out-patient at a mental health hospital to address any potential Post Traumatic Stress Disorder (PTSD) from his incarceration or offending. He would attend a job placement organisation and take any available job and hoped to work in the non-profit welfare sector to begin giving back. He provided a proposed business plan to establish a group with his friend TM and another person to provide support for recently released prisoners and in future for others who have left highly regimented environments, such as members of the military. He planned to start visitations with his son and when possible, to pay for a report that would allow him to have some form of custody of his son.
The applicant wrote a letter of apology which expressed regret, sorrow and shame. He demonstrated insight into the harm caused to his victims and the impact on his wife, son, other family members and his friends, among others. He expressed his intention to follow any treatment plan put before him, and to act in future to restore relationships, including with his son, and to regain some degree of trust from the Australian people. During the hearing he said that it is not possible to say 100% that he will not re-offend but he does not believe that he will.
A letter from a state corrective services authority dated 28 November 2019 stated that the applicant did not incur any breaches of prison discipline and was not involved in any custodial incidents during his period in custody from 9 July 2019 until 5 November 2019. However, incidents occurred while the applicant was in immigration detention to which the Respondent directed cross-examination. Immigration detention incident reports categorised incidents as critical, major and minor. The applicant was the subject of fourteen minor incidents from entering detention after leaving prison until 3 September 2020.
The applicant wrote that during his 32 months in migration detention he had had a few incidents where he was “the victim of assault by fellow detainees or threats and stalking by a Serco employee”. He told the Tribunal that the incidents occurred within months of being transferred from one capital city to another and his wife cutting off contact and serving divorce papers. He pointed out that the last recorded incident was 3 September 2020 and that a psychiatrist in the detention centre had altered his medication in December 2020. He referred to a reference in one of the journal articles he provided about Asperger’s Syndrome and child exploitation material to pharmacological interventions being useful.
The Respondent sought to show that the applicant has anger issues. During cross-examination about some of the incidents that occurred during the applicant’s detention, it became clear that the applicant’s behaviour which he attributed to frustration was perceived by others to be expressions of anger. He did not understand why people reacted as they did.
More importantly, the applicant was cross-examined about his statement that his offending was a pressure valve for his frustrations, anger, nervous and anxious when things did not go as he expected.
There was a considerable body of expert evidence in this case.
The applicant was assessed by a consultant psychiatrist, Dr VS on 24 March 2018 following referral “for diagnostic clarification”. The working diagnoses according to DSM V were:
1.Adjustment disorder with depressive symptoms.
2.Dysthymia
3.Generalised anxiety disorder.
The differential diagnoses were Obsessive compulsive traits and paraphilic disorder.
Dr VS set out a management plan which included Fluvoxamine, referral to a forensic psychologist and review in two weeks with his wife.
Dr EM, psychologist, referred the applicant to a state autism body for assessment on 18 July 2018. In the referral letter Dr EM wrote the following. The applicant was referred for counselling by his GP. During his appointments he appeared to have a history of low empathy for other people. He showed deficits in being able to communicate effectively to his peers. He was isolated because he did not understand social situations to allow the development of friendships that satisfied his needs. He completed the Adult Autism Assessment (AAA) on 30 April 2018 which included input from his mother and stepfather. The AAA is a screening tool. The applicant scored similarly to 80% of people who had been diagnosed with Autism. He reported feeling very relieved knowing his difficulties in relationships with both friends and prospective relationships had been influenced by the possible diagnosis of ASD. The applicant was advised to seek a formal diagnosis from an external agency to confirm the diagnosis.
A senior speech pathologist and Ms KR, psychologist, for a state autism body, wrote a report dated 24 July 2018 addressed to “Dear colleague”. The applicant’s history was recorded, and an Autism Diagnostic Observation Schedule – 2^nd Edition (ADOS-2) administered. The applicant was found to meet the criteria for ASD, demonstrating mild autism-spectrum related symptoms. It was recommended that input from a psychiatrist would be beneficial for support and management of “any additional difficulties” with respect to his mental health, such as any stress or anxiety he may experience. Formal diagnosis being confirmed by a psychiatrist would benefit the applicant to ensure access to some aspects of future funding and supports.
Dr MS, the applicant’s General Practitioner (GP) referred the applicant to Dr JV, consultant psychiatrist, who wrote a report dated 8 March 2019. The consultation was by video. The applicant told Dr JV that the purpose of the appointment was to confirm a diagnosis of Autism. Dr JV had a copy of Ms KR’s report and a letter from Dr VS.
The applicant told Dr JV that he was seeking diagnostic clarity as that would help with his legal issues and help optimize his treatment. When challenged about the need for a formal diagnosis, the applicant referred to his current legal issues. He was wondering if the abnormal wiring in his brain secondary to Autism caused him to engage in behaviours that that led to the charges. Dr JV made it very clear that he was only addressing the diagnostic possibilities in the context provided by Dr VS and that the report was for clinical purposes only and not for medico-legal purposes.
Dr JV set out the applicant’s history which in summary referred to Leopard Syndrome (Noonan’s Syndrome) and his difficulties forming friendships and relationships.
The applicant denied the presence of any sexual urges behind downloading pornographic images. He reported that it was an act of aggression as he sees the persons in the images as the girls who had rejected him in his adolescence and teenage years. He achieved a form of gratification which he did not consider to be sexual. He was aware it was against the law but another part of his brain encouraged him to do it and he would succumb. He would then delete the pictures after a few days and acknowledged guilt.
Dr JV diagnosed Pervasive Development Disorder Unspecified per ICD-10. He explained why he did not diagnose Childhood or Atypical Autism as per ICD-10. The applicant had features that align with Asperger’s Syndrome but Autism itself was difficult to establish. Dr JV listed imitations on his assessment, including lack of collateral information from parents. The correspondence with the state autism body did not highlight reference to that information but he did not see the missing components impacting on the diagnostic interpretations significantly.
Dr MS, wrote a letter dated 28 March 2019 to the applicant’s legal representative which included the following. She and other doctors in the practice had been treating the applicant since 2017. The applicant suffered from Noonan Syndrome, resulting in small stature and cardiac abnormalities. Dr MS referred to the various practitioners he had seen and one he had not. He had been referred to a forensic psychologist on 24 March 2018 but did not see her. He saw MF for anger management three times to date which had been very useful. (There was no report from MF). A Mental Health Care Plan was in place. The applicant attended regularly to have it reviewed and discuss his needs to improve and help his wife cope with “current issues”, to be a good father and repair other relationships with his family overseas. He had been very diligent in accepting help. His current working diagnosis was high functioning ASD with adjustment disorder with chronic generalised and Social Anxiety and Depression for which he was treated with Fluvoxamine.
Dr GA, psychiatrist wrote a report dated 1 May 2019 which was addressed to the applicant’s legal representative. He interviewed the applicant “at length” in his rooms on 19 March 2019, on Skype on 29 March and interviewed the applicant’s then wife on Skype on 3 April 2019. Dr GA had a letter from Dr EM dated 23 March 2019, a report from psychologist KM dated 24 July 2018 and copies of the indictment. He summarised the charges. He understood that the report was to be put in mitigation prior to sentencing. The doctor had not sighted the child exploitation material but noted a range of categories, including the more severe. It was a purely forensic opinion.
Dr GA set out the following conclusion. The applicant related a 10-year history of viewing on his computer, child exploitation material, mixed with adult pornography. Viewing pornography has been a significant part of his life since first exposure to it as a college student. The adult pornography he described was of “schoolgirl” or “edge of legal” type.
The applicant related looking at pornography and masturbation as his only sexual activity throughout his life until his relationship with his wife began in 2012. That was his first relationship with a woman. His preoccupation with pornography has been quite prolonged and intrusive, masturbating to ejaculation up to three or four times each day for most of the time since college years. There had been a significant addictive component to this with a salience of this activity over others, to the neglect of other important aspects of life and to the exclusion of other activities. This continued while he worked as a schoolteacher in north-east Asia where he did not fit in well into the local culture, which highlighted his degree of isolation.
Such work as a schoolteacher in Asia was not unreasonable in the applicant’s circumstances and did not necessarily imply a choice of the role because of paedophilic impulses. However, taking up teaching work indicated no practical steps being taken to avoid the risks of physically acting out deviant sexual impulses.
The applicant warmly expressed his love and appreciation of his wife’s love and support for him and the broader structure of home life and personal and emotional security. However, there had been a struggle to maintain a sexual relationship with her, including a variety of practical reasons, although there was significant affection. The applicant’s viewing of pornography on a compulsive basis continued while he was living with her, including viewing illegal child exploitation material.
There was no history of physically acting out his sexual deviance. He related a history of being completely isolative and his activities being confined to a fantasy level with imagery on a computer.
The issues arise in the context of significant personality issues. The applicant expressed considerable anger at repeated rejections by women throughout his life, including his mother who suffered bipolar illness during middle school. Dr GA noted the strong link of sexual imagery the applicant had seen on the internet with girls he knew or had rejected him at that time. There was a very significant entanglement of this anger and sexuality at this early teenage phase that remains ill-defined and unexplored by the applicant and his psychologist.
There were other significant experiences which had hampered his capacity for mature and age-appropriate relationship formation, including disruptions in his family life when he was a child and growing up.
A further issue were the consequences of Noonan’s syndrome. He was of short stature and dysmorphic appearance, suffered significant deafness, eyesight problems and general development delay, which had further isolated him from his peers and normal friendships, including in terms of relationships with women on an adult level. His hearing difficulties and developmental issues have left him with a chronic degree of insecurity with what is being said and a degree of paranoid suspicion of what others are saying about him. This has given a mental set of distance from other individuals.
A cardiologist telling him that he risked sudden death if he raised his heart rate or stressed himself, precluded him from sport throughout life. That had taken away a bonding and normative relationship building activity that may have provided more appropriate linkages and reference points for him.
Noonan’s syndrome is associated with ongoing emotional and developmental delay and particularly difficulties being able to articulate emotions.
The applicant had been appropriately and successfully treated by his GP with an antidepressant for depressive symptoms.
The applicant had begun “to generally explore matters” with a psychologist which was a wise and reasonable step, and absolutely necessary prior to any specific treatment of his sexual deviance. Dr GA thought that the applicant “is now ready to address matters more specifically”.
The applicant is still adjusting to the gravity of the issue and the realisation of how far away from normative behaviour he has drifted over his life. Never before have the issues of his behaviours of compulsive viewing of pornography and the masturbatory sexuality that comes with this, as well as the child exploitation, come to light or been addressed. I think he is early in the process of fully realising the gravity of this and the true consequences of the matter. As such, I think his being early in the process cannot necessarily be held against him as recalcitrance, but rather this is the natural pathway of matters.
I think he requires specific treatment for his sexual deviance which is available in (state capital) where there is specialist psychiatrists and psychologists. He has indicated his willingness to embrace such treatment and has indicated his wife is applying for jobs in (state capital) to transfer so such treatment will be available to him.
Dr GA noted that the applicant’s wife was highly supportive, and the applicant was trusted with the care of their six-month-old child, towards whom he showed love and care. Dr GA thought her statement of support was a significant positive in the circumstances.
Dr GA concluded that the applicant’s risks of reoffending were generally low. He noted the lack of antisocial behaviour or personality disorder, the capacity to maintain other relationships and assume prosocial roles, to hold employment, awareness of the need to seek treatment and take it seriously, and the lack of psychiatric illness and substance use issues. His clinical assessment was that the applicant was at low risk of reoffending, especially given appropriate supervisory frameworks and treatment. On a standard risk assessment instrument as SF-20, he would score low risk of reoffending.
In the doctor’s opinion, the applicant would be highly responsive to treatment, especially as the nature of his offending had been in fantasy over internet pornography. The applicant’s risk of offending with children physically was very small but the risk of reusing the internet existed but was not large.
Dr EM (the applicant’s treating psychologist) wrote a letter to the court dated 16 May 2019. She was aware of the specific charges against the applicant. She had known the applicant since 13 April 2018. He had attended multiple sessions over the year, face to face and by Skype. The applicant had maintained regular counselling to support himself in understanding his motives for the “charges” and to seek prevention methods for the future. He was a loving father and supported his wife. He had been honest about his charges to their extended family and to his workplace. He was still hard-working in his employment. He had shown deep remorse and had understood the impact to a greater extent since becoming a father. He often stated that he is extremely guilty for the impact that his actions will have on himself, his wife, their son and extended family and friends. He appeared to have made great strides in rehabilitation and had worked hard with therapy and seeking additional psychiatric help in understanding his behaviour and how to prevent it happening again.
Mr K, Clinical Nurse Consultant (Forensic Mental Health), conducted a psychiatric assessment of the applicant on 26 and 27 July 2022 via audio-visual link.[4] He prepared a medico-legal forensic psychiatric report dated 3 August 2022. Mr K set out the history taken. Most relevant to this decision is that the applicant and his wife were divorced on 1 July 2022. She had ceased all contact with him in January 2020. He has had no contact with his son since then. He records YouTube videos and sends links to his former wife but is not sure if his son receives them. His former wife is required to send him a report, photographs, and a video of their son once per month. He has a family court hearing scheduled in October 2022 in which he is seeking regular contact with his son.
[4] The footer on each page of Mr K’s report has the title “Dr”. I infer that the footer, which include the AAT matter number, was added digitally by the applicant. It is not an accurate reflection of Mr’s qualifications.
The applicant’s medication was changed in 2021 while he was in immigration detention. He was currently prescribed an antipsychotic medication and an oral antidepressant.
The applicant described the sexual activities in which he and his wife participated and said that he found it difficult to ejaculate through normative sex with his partner.
He described his history of viewing pornography. He said that he preferred to watch 18 to 19 year old models and described the nature of the videos he enjoyed. He said that he had no sexual interest in children since he was prescribed medication and can resist urges to access child exploitation material. He had downloaded an “anti-masturbatory” application on his phone which support abstinence from masturbation. He had only masturbated four or five times since being in migration detention.
The applicant denied masturbating to or being sexually aroused by the child exploitation material. Mr K thought his denial of being sexually aroused by child exploitation material was unlikely considering the amount and type discovered on his devices.
Mr K used the Child Pornography Offender Risk Tool and the Correlates of Admission of Sexual Interest in Children Scale and concluded that the applicant appeared to be a relatively low risk of reoffending. Mr Knight’s impression was that the applicant is an appropriate candidate for specialised treatment in the community setting and anticipated that he would be likely to comply with treatment mandated rules and objectives. Risks in the community can be managed by limiting his opportunities to have unfettered access to the internet.

Mr K did not focus on assessing the applicant for a diagnosis of ASD but said that it was a reasonable diagnosis considering his history. He suffered from depressed mood and situational anxiety. His symptoms appear to have improved with medication. Mr Knight expressed the opinion that the applicant suffers from personality vulnerabilities which exacerbate his feelings of being unimportant and “invisible” to others.
Mr K thought it likely that the applicant would be a reportable person pursuant to state child protection legislation if he remained in Australia but was not aware of the applicable US legislation. He had agreed to provide the applicant with treatment via audio-visual link if his visa is not cancelled.
The applicant provided a 2014 article entitled ”Judiciary views on criminal behaviour and intention of offenders with high-functioning autism”.[5] The relevant finding was that the interviewed 21 California superior court judges reported beliefs that high functioning ASD offenders view the world in a different way and that much of their behaviour is not under the direct control.
[5] Colleen M. Berryessa, Journal of Intellectual Disabilities and Offending Behaviour, 3 June 2014.
Two other articles, Asperger’s Syndrome and the Criminal Law; The Special case of Child Pornography by Mark Mahoney (2009) and Downloading a Nightmare by Anat Rubin 2017 supported the following propositions.[6] Individuals suffering from ASD “have no criminal intent to commit such an offence or have understanding of the harm caused by child pornography”. Due to a lack of empathy and understanding of social morals, such individuals may be unaware they are committing a crime. It is widely accepted in the USA that such offenders are ‘misunderstood and incorrectly apprehended for this type of offence”. Such individuals would be unlikely to commit further offences as long as they were thoroughly educated that such behaviour is unacceptable.
[6]
These articles do not assist the applicant. He pleaded guilty to the offences and was convicted and sentenced according to Australian law. The sentencing judge considered Ms KM’s 2018 report, and reports of Dr EM and Dr GS. Notably he did not refer to the reports of Dr JV or Dr GA from which I infer he was not provided with them. In any event, the judge’s remarks on sentence and the sentence of imprisonment, and Direction 90, reflect the seriousness with which the Australian community considers such offending. The views expressed in the articles are not consistent with Australian law. In any event, none of the three psychiatrists who assessed the applicant diagnosed ASD or Asperger’s.
Similarly, case references the applicant provided do not assist. I am considering his circumstances and in particular the expert evidence about him.
While expressing remorse and regret and acknowledging responsibility, and knowing that what he was doing was illegal, my impression from the applicant’s evidence generally was that he was keen to attribute his offending to suffering from ASD. He thought ASD and Noonan’s Syndrome explained his offending but did not excuse it. None of the three psychiatrists who assessed him made that diagnosis. Dr JV was specifically asked to consider that diagnosis but did not agree with it. I find the analysis of Dr GA compelling. His conclusion was that the applicant required treatment for his sexual deviance. It remains untreated.
The sentencing judge observed that there appear to be some genuine prospects of rehabilitation on the applicant’s part and that there is no evidence to suggest that he is a direct threat to a child under the age of 16 living in the community.
At the time of sentencing in July 2019, the applicant had been receiving treatment from Dr EM from the time of his arrest in March 2018 and had not reoffended while he was on bail.
The opinions of Dr GA and Mr Knight are that he has a low risk of reoffending. His former wife is no longer supporting him. Her support was a factor Dr GA considered relevant in this context.
It is concerning that the applicant has reported to Dr JV and Mr K that there was no sexual aspect to his offending, which Mr K did not accept. Dr GA’s report demonstrates very powerfully that there was a sexual component to his criminal behaviour. Similarly, his claim that his offending was a lapse of judgment is not consistent with his continuing the conduct for which he was eventually convicted in 2019 for over 10 years. That was a fact that was not before the sentencing judge. Dr GA did take that into account in finding there was a low risk of reoffending.
It is clear from Dr GA’s report that the applicant had not explored or been treated for his sexual deviance which was longstanding. Both Dr GA and Mr K think treatment will assist the applicant. He has not been treated since he was imprisoned. I draw no adverse inference from that fact. I accept that such treatment was not available through the prison or detention system and the applicant could not fund treatment external to either institution. The cost of such treatment or how the applicant will be able to fund such treatment if he is released is unknown.
The applicant has a US tertiary qualification in communications, legal, economics and government. His employment history includes teaching in North East Asia for a couple of years, working in politics in the USA and casually in Australia, and as a casual cleaner in Australia and most recently as an analytical research officer for a regional council in Australia for 18 months to two years. I infer that his criminal record may make it more difficult for him to get a job. He acknowledged that for some periods he was supported by his mother and later his former wife. He described difficulties finding work in Australia.
His mother paid for Mr K’s report but she said that her financial resources are limited. The step-father said that he had resources in the context of support he could provide to the applicant if he returned to the US. The only support the applicant would have if released into the Australian community would be from TM, a person who has recently trained as a chaplain. The evidence did not suggest that TM could provide financial support.
The applicant’s evidence that his offending was a pressure valve is concerning, given the issues he will face if released into the community, including finding accommodation, supporting himself financially, looking for a job, and in particular the strain of continuing his family court proceedings for access to his son. He said that he has other friends who he did not ask to be involved in these proceedings because of the impact on them. Given his history of social isolation I give that evidence little weight.
His former wife advised the court in her letter dated 4 July 2019 that the applicant had grown mentally and emotionally since March 2018 after being prescribed medication by a psychiatrist and a psychologist. She described how their relationship and his relationships with his mother, step-father, and members of her family had improved.
The incidents in detention in which the applicant was involved which were emphasised by the delegate and to an extent during the hearing, included two altercations with another detainee and three incidents of abusive and aggressive behaviour towards staff. Four of the incidents occurred between 21 January 2020 and 2 March 2020 and the last one was on 3 September 2020. I do not give any weight to these events. They were minor events, mostly in the first four months of his detention when I infer he was getting used to that environment. At the time of the hearing, he had been in detention for two years and nine months. In any event, the incidents are irrelevant. The matter of concern is that the applicant found release of his frustration by offending in isolation, not by abusing people, physically or verbally.
It is relevant that the periods of the applicant’s suspended sentence and good behaviour bond have expired. He will not be the subject of parole for his past offending. It is not apparent from the evidence how risks in the community can be managed by limiting his opportunities to have unfettered access to the internet as Mr K mentioned or how appropriate supervisory frameworks would be established, as Dr GA mentioned.
The protection of the Australian community weighs heavily against revocation of the decision to cancel the applicant’s visa.
Best interests of minor children in Australia
Paragraph 8.3 of Direction 90 addresses the best interests of minor children in Australia affected by the decision. The Applicant has one Australian citizen son who was born in October 2018. He was involved in the child’s life before he was imprisoned in July 2019. His former wife’s evidence supports his evidence that he was an attentive and loving father who was involved in the child’s care, including bottle feeding and changing nappies,
I accept that his bail conditions did not allow him access to children except for his son. He has had no contact with the child since 7 January 2020. From 5 July 2019 until 7 January 2020, the applicant claimed to have had daily conversations. I understand that involved the child’s mother holding the telephone near the child. The evidence of the child’s mother as of 2 October 2019 was that the applicant called quite a lot in the first month he was in custody because he wanted her to sort out his financial affairs but then it was only every few weeks. It may have been easier for telephone calls to be made after the applicant was in immigration detention from November 2019, but I doubt there were daily conversations, given that the child’s mother said that they separated on 1 July 2019 with a view to getting a divorce in a year and the child turned one in October 2019.
The child’s mother has been the only parent to the child since the applicant’s imprisonment. She will continue to play that role in the foreseeable future. I do not doubt that the applicant wishes to play a parental role in the child’s life in the future, including because he is concerned that the child may have inherited Noonan’s syndrome and wishes to support the child in that event. He has indicated that he will live where his wife and child live.
He says that he has obtained pro bono representation in proceedings in the Federal Circuit and Family Court of Australia that are listed for a conference and hearing in October 2022. His legal representative told him he would be granted some contact. The applicant understands from his legal representative and agrees that if he gets visitation rights, he will have to arrange and pay for a number of visitations and a safety report. How he will fund that expenditure is speculative.
Correspondence shows that court proceedings have been on foot since about March 2020. Orders were made on 7 April 2020 that the child’s mother provide to the applicant a monthly update about the child. The applicant did not attend family dispute resolution with a family dispute resolution practitioner on 10 September 2021. On 7 October 2021 the legal representative of the child’s mother wrote to the applicant noting that he had received an invitation to attend a mediation with the Family Relationship Centre, and his client appreciated that the matter should move towards increased communication between the applicant and the child and proposing regular video/web link communication between the applicant and the child in the interim period until further court orders were made. The applicant declined the offer on 8 October 2021 because of the “poor”, “non-existent” track record when it comes to negotiating and would continue with external mediators. On the same day, the legal representative for the child’s mother replied and invited alternate suggestions. No progress seems to have been made.
The applicant believes that it will not take long for him to re-establish his bond with his son.
If the applicant’s visa cancellation is not revoked, he will not be able to have an in-person role in his son’s life in the foreseeable future. The mother of the child will not move to the USA. He may have contact with the child by telephone, audio-visual means or in writing and by photographs. The child is almost four years old and has not had personal contact with his father since he was about eight months old. I infer that it would be more difficult to develop and maintain a relationship with the child remotely than by personal contact.
It is 14 years before the child will turn 18. The outcome of the current Federal Circuit and Family Court proceedings is unpredictable. If the applicant remained in Australia, his access to and care of the child is likely to be decided by that court, taking into account his circumstances from time to time. That allays to a considerable extent my concern about the abhorrent and deviant nature of the applicant’s offending over a long period, and his lack of treatment to date and uncertainty as to whether he will be treated and the outcome of any such treatment in deciding whether he is likely to play a positive parenting role in the future. However, the applicant and the child’s mother may be engaged in costly legal proceedings about access and care of the child for many years, given the last known view of the child’s mother that was set out in her letter to the Department dated 2 October 2019. They planned to go down the mediation route if the visa appeal went well:
I’ve received legal advice in regards to my son and his father and wish to not comment further about this issue for the moment. I’m also unaware of his conditions on release and I do have to act in the best interests and safety of my son. But when my son is 18, he would miss out on regularly being able to spend time with his dad in the same place.
Whether and when the applicant will have any in person access to or care of the child if he remains in Australia is unknowable.
There is no evidence that the applicant has harmed the child physically or emotionally. The expert evidence is that he is not a direct threat to a child in person. If the child learned of the applicant’s past abhorrent offending in the future, that would be likely to have a negative impact on the child. The child may learn of that offending whether or not the applicant remains in Australia. The same might be said if the applicant were to reoffend, however any reoffending would be likely to have a greater adverse impact on the child if the applicant reoffended in Australia.
On balance, the best interests of the child weigh in favour of revocation of the visa cancellation decision.
Expectations of the Australian Community
The fourth primary consideration is expectations of the Australian Community. Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Direction 90 further states that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
The Full Court of the Federal Court of Australia considered clause 11.3 of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
Australia may afford a higher level of tolerance to criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[7]
[7] Direction 90, paragraph 5.2(4).
The question for the decision-maker is the weight to be attached to this consideration.
The applicant has breached the trust of the Australian community, as he conceded and for which he apologised and expressed his intention to act to regain that trust. He has not lived in Australia for most of his life or from a very young age.
In accordance with Direction 90, paragraph 8.4(2)(c), the Australian community expects that the Australian Government should cancel the applicant’s visa because of the commission of a serious crime against children, that is, a crime of a sexual nature.
Those expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The consideration, expectations of the Australian community, weighs heavily against the revocation of the visa cancellation decision.
Other considerations
The relevant other considerations in this case are international non-refoulement obligations, the extent of impediments if removed from Australia and links to the Australian community. Paragraph 7(2) of Direction 90 states the primary considerations should generally be given greater weight than other considerations.
International non-refoulement obligations
The applicant contended that cancellation of his visa would breach Australia’s international non-refoulement obligations because he may be subjected to vigilante attacks in the USA or Canada because his sexual offending would be recorded in a publicly available register of such offences.
The applicant and his mother raised this concern. A number of articles were provided in support of this concern. One article was about an incident in the state where the applicant’s mother and former step-father reside. The article referred to the public sex offence registrar in a small town in that state. The applicant’s mother gave evidence about a public register of sex offenders where she lives and an instance of vigilantism.
Another article mentioned that Canadian conservatives were moving to publicise the national registry which is run by the Royal Canadian Mounted Police and only available to police agencies. Some informal groups established lists based on publicly available information. The information about Canada appears to predate the current Trudeau regime.
The applicant understands that in the USA it does not matter whether the crime occurred within or outside that country. It will be recorded in a public register.
The respondent contended that no weight should attach to this consideration in favour of the applicant. It contended that I was entitled to defer consideration of this consideration following the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. The matter can be adequately dealt with by the applicant applying for a protection visa, which he said he would do when it was raised with him at the hearing. He said that he was unaware of that possibility before then.
In respect of the risk of harm, the respondent contended that there was no foundation for a finding that the applicant would be on a register or that such a register would be publicly available. He is not on any register and has received no threat of harm from anyone in Canada or the USA. Any such risk of harm is remote and speculative.
Where an applicant/plaintiff made representations seeking revocation of a cancellation decision under s 501(3A) of the Act which raised a potential breach of Australia’s international non-refoulement obligations, the first answer given by the High Court in Plaintiff M1/2021 sets out the consideration required when deciding whether there was “another reason” to revoke the visa cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act where the plaintiff/applicant remained free to apply for a protection visa under the Act:
(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;
(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

It is unnecessary to determine whether non-refoulement obligations are owed in respect of the applicant because he is able to make an application for a protection visa in which case whether or not non-refoulement obligations are owed to him will be fully considered.
Therefore I give no weight to this consideration.
Extent of impediments if removed
Direction 90, paragraph 9.2, requires a decision-maker to consider the extent of impediments that may be faced if the person is 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, and sets out matters relevant to that consideration.
The applicant is in his late 30s. The applicant suffers from Noonan’s syndrome, referred to by the various experts. He told the Tribunal that his physical health is pretty good but that removal would have dire ramifications for his mental health because he will not be able to continue his rehabilitation with his mental health and psychiatric issues which are critical to ensure that he does not relapse. He has consulted a psychiatrist while in detention who changed his medication. Mr K noted that it had been beneficial, and the applicant and his former wife’s evidence was to the same effect.
He has not undergone rehabilitation necessary to ensure that he does not relapse. His evidence was that little psychological support was available to him detention and there was none while he was in prison. Apart from the prescribed medication he takes and treatment for his sexual deviance, it is unclear what other treatment he requires. I found Dr GA’s the most comprehensive, considered and persuasive of the expert reports. While Mr K wrote that a diagnosis of ASD is reasonable, none of the three psychiatrists made that diagnosis. Dr JV was specifically requested to consider it.
The applicant claimed that removal would have dire ramifications for the significant relationship he enjoys with his child. As set out above, he has had no relationship with the child since January 2020. He will be distressed by being unable to have in person contact with his child, probably at least until the child is 18 years old. He may have access to the child by remote means or in writing. His permanent removal from the child may adversely impact his mental health.
He is a citizen of the USA and Canada. He has resided in Australia for about nine years. He has spent most of his life in the USA, having left Canada when he was four years old. He would face no linguistic or cultural difficulties on return to either country.
The applicant’s mother and former step-father provided written and oral evidence. They live within 5 miles of each other in the same state of the USA. His mother’ is 72 years old and has limited means, although she owns her home and lives alone. She continues to work part-time and has social security. She said that she would do what she could for the applicant. Her relationship with the applicant has improved since his offending.
His former stepfather gave evidence that the applicant and he have a continuing father-son relationship. They speak at least once a week. He was prepared to provide accommodation for the applicant. He also said that he had “resources” which I infer he was prepared to use to assist the applicant upon his return. The step-father said that their relationship had improved dramatically since the applicant’s offending. The applicant had talked very openly about the issues he had since his incarceration and the step-father was really impressed by the applicant’s clear thinking about the children who had been abused.
The applicant’s father and step-mother and a step brother and two half-brothers live in Canada. His stepmother wrote a letter of support but he does not and has never had a close relationship with his father or his father’s other children. The applicant said that his step-mother is now suffering ill-health. He expects no support from his father. I accept that he will not receive support from this side of his family if he were to return to Canada.
The applicant will have the same access to social, medical, and economic support as other citizens of Canada or the USA, should he need those supports.
Although not specifically raised by the applicant, he will not have personal contact with TM if he returns to Canada or the USA but will be able to continue their current relationship by telephone which has been their means of communication for the past three years.
Contrary to the applicant’s understanding, this consideration does not require a comparison of conditions in Australia and another country. If it did, I would conclude that the applicant would be better off in the USA than in Australia because of the affection and support of his mother and step-father, emotionally, financially and for accommodation.
This consideration weighs slightly in favour of revocation of the visa cancellation decision.
Links to the Australian community
The consideration links to the Australian community has two limbs.[8] Only the first is relevant, the strength, nature, and duration of ties to Australia.
[8] Direction 90, paragraph 9.4.
The applicant has spent less than nine of his 39 years in Australia. He arrived aged 30. He has been in prison and immigration detention for three years.
He married in 2014 but separated because of his offending in 2019. Although his former wife initially provided evidence supporting the applicant to the court and to the Department in October 2019, she cut off communication completely on 7 January 2020 and they are now divorced. He has a son in Australia but currently has no court order for access or care of the child. He will participate in court proceedings in October 2022.
TM is a friend and de facto spiritual guide to the applicant. He provided written and oral evidence. He and the applicant have become friends since mid-2018, after the applicant was charged, although they had worked for the same employer before that. TM has trained as a chaplain since he left his employment in 2017. As he said, getting to know the applicant has allowed him to get “some on the ground experience”, “to go with the book learning”. TM has seen the applicant once since he was imprisoned, in November 2019 when the applicant was released from prison and taken into immigration detention. They have been in telephone contact while the applicant was in prison and immigration detention. TM will be unable to have personal contact with the applicant if he is removed from Australia but will be able to continue telephone contact. I give little weight to TM’s opinion that the applicant will be able to assist to rehabilitate offenders and in the long term prevent crimes in the community when he has not been treated for his sexual deviance.
Although the applicant claimed to have other friends in Australia whom he did not get involved because of the impact on them, I give this evidence little weight given his history of social isolation, which the evidence of TM supported.
The applicant’s positive contribution to the Australian community has included his work as an analytical research officer, casual cleaner and political staffer for less than six years.
This consideration links to the Australian community weighs slightly in favour of revoking the visa cancellation decision.
Conclusion
I have to weigh all “primary” and “other” considerations set out in Direction 90. “Other considerations” should not be necessarily given less weight in all cases; it is a case-by-case consideration.[9]
[9] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.
The primary considerations protection of the Australian community and the expectations of the Australian community which weigh in favour of not revoking the decision to cancel the applicant’s visa outweigh the primary consideration the best interests of the child and the other considerations, international non-refoulement obligations, the extent of impediments if removed from Australia to his home country and links to the Australian community, which weigh in favour of revoking the decision to cancel the applicant’s visa.
There is not another reason why the decision to cancel the applicant’s visa should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.
Decision
The reviewable decision made on 26 May 2022 is affirmed.

154. I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

...................................[sgd].....................................
Associate

Date(s) of hearing: 8 and 9 August 2022

Solicitor for the Respondent: Mr Matthew Hawker, Sparke Helmore Lawyers
Dated: 22 August 2022

Date(s) of hearing:	8 and 9 August 2022
Solicitor for the Respondent:	Mr Matthew Hawker, Sparke Helmore Lawyers