Richards and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 326

Richards and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 326 (31 March 2025)
Applicant/s:  DARRYL WILLIAM RICHARDS
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/0296

Tribunal:Senior Member C Shepherd
Place:Adelaide
Date:31 March 2025

Decision:The Tribunal affirms the decision to cancel the Applicant’s visa.

................[SGND]..................
Senior Member C Shepherd
CATCHWORDS
MIGRATION – cancellation of Special Category (Temporary) (Class TY) Special Category (Subclass 444) visa under section 501(2)- where Applicant does not pass the character test – Applicant has substantial criminal record – exploitation of child materials – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
R v De Leeuw [2015] NSWCCA 183
SECONDARY MATERIAL
Direction No. 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

The Applicant is a citizen of New Zealand and is 58 years of age. He first arrived in Australia on 30 May 1985, then 18 years of age, and has lived in Australia since then. He was granted Special Category (Temporary) (Class TY) Special Category (Subclass 444) visa (the visa) on 6 February 2016.
On 8 February 2019, the Applicant pleaded guilty to, and was convicted of,
(a)Using Carriage Service to Access Child Pornography (Count 1)
(b)Possessing Child Abuse Material (Count 2).[1]
[1] Exhibit 1, HB277-HB278.
For count 1, the Applicant was sentenced to two years in prison, suspended immediately upon him entering into a Recognisance Release Order. For count 2, he was sentenced to 6 months’ imprisonment, suspended and served concurrently with count 1.[2]
[2] Exhibit 1, HB278-281; HB283.
On 28 October 2019 and on 23 July 2024, the Respondent issued notices to the Applicant of an intention to consider cancellation of the visa.[3]
[3] Exhibit 1, HB479 and HB484.
On 7 January 2025, the Applicant was notified that on 5 December 2024, a delegate of the Minister decided to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (Migration Act) (reviewable decision).[4]
[4] Exhibit 1, HB250-HB281.
On 15 January 2025, the Applicant applied to the Tribunal for review of the reviewable decision.[5]
[5] Exhibit 1, HB238-HB249.
ISSUES
It is not in dispute that the Applicant does not pass the character test under s 501(6) of the Migration Act, having been sentenced to a term of imprisonment for 12 months or more, and so has a ‘substantial criminal record’ for the purposes of s 501(6)(a).[6]
[6] Applicant’s Statement of Facts, Issues and Contentions at [38].
The issue for the Tribunal is whether exercise of the discretion under s 501(2), to cancel the Applicant’s visa, is the correct or preferable decision.
STATUTORY FRAMEWORK
Section 501(2) of the Migration Act states:
The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(a) states that a person does not pass the character test if they have a substantial criminal record as defined by s 501(7). Section 501(7)(c) provides that, for the purposes of the character test, a person has a substantial criminal record if they have been sentenced to a term of imprisonment for 12 months or more.
Section 499(1) of the Migration Act states:
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.
Section 499(2A) of the Migration Act provides that ‘a person or body must comply with a direction under subsection (1)’.
Direction No. 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) was made pursuant to s 499(1) of the Migration Act.
Paragraph 5.1(4) of the Direction states:
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501…Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
DIRECTION – OBJECTIVES AND MAKING A DECISION
Paragraph 5.1 of the Direction states that the objective of the Migration Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens…’.[7]
[7] Paragraph 5.1(1) of the Direction.
Paragraph 5.1(2) relevantly provides that ‘where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion’.[8]
[8] Paragraph 5.1(2) of the Direction.
Paragraph 5.2 of the Direction sets out principles to provide a framework ‘within which decision-makers should approach their task…’.
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
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’.[9]
[9] Paragraph 6 of the Direction.
Paragraph 7 of the Direction states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1… (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out the primary considerations as follows.
(1)   protection of the Australian community from criminal or other serious conduct
(2)   whether the conduct engaged in constituted family violence
(3)   the strength, nature and duration of ties to Australia
(4)   the best interests of minor children in Australia
(5)   expectations of the Australian community
Paragraph 9 sets out three ‘other considerations’ to be taken into account where relevant.
(a) legal consequences of the decision
(b) extent of impediments if removed
(c) impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Safety of the Australian community is the highest priority of the Australian Government
When considering the protection of the Australian community, I keep in mind that the safety of the Australian community is the highest priority of the Australian Government. I have regard to the principle that ‘entering or remaining in Australia is a privilege that Australian 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’.[10]
[10] Paragraph 8.1(1) of the Direction.
Paragraph 8.1 states that decision-makers should also 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 conduct
In considering the nature and seriousness of the Applicant’s conduct to date, I have regard to the matters set out at paragraph 8.1.1(1)(a) – (i) of the Direction.[11]
[11] Paragraph 8.1.1(1)(a) of the Direction.
A criminal history check for the Applicant produced in November 2024, indicates that the Applicant did not have any criminal convictions prior to the subject offending.[12] The check records a Breach of order suspending sentence committed in June 2019. I accept, following submissions by Ms Chalmers SC, that the Breach of order suspending sentence was recorded in error following a variation to the Applicant’s supervision order in June 2019. I do not place any weight on a minor traffic infringement disclosed by the Applicant.
[12] Exhibit 1, HB275-HB276.
I find that the Applicant did not have any criminal convictions or history of behaviour that would amount to ‘serious conduct’ as defined in the Direction, either prior or after the subject offending.
Subject offending
On 8 February 2019, the Applicant pleaded guilty to, and was convicted of, the subject offending.
The Crown Facts establish that in May 2017 a search warrant was executed at the Applicant’s home. Officers seized three devices. Following forensic examination of the devices and a subsequent interview with the Applicant, officers established that the Applicant had posted sexually suggestive comments on images of females under 18 years of age and that he possessed files with images that were identified as child abuse material.[13]
[13] Exhibit 1, HB537-HB541.
The Crown Facts sets out that the child pornography material was ‘categorised by reference to the Australian National Victim Identification Library (ANVIL) categorisation scheme, which is a database of child pornography material previously identified by officers of Australian law enforcement agencies’. The ANVIL scale comprises six categories with a ‘classification’ and ‘guide’ as follows.
Category 1: CEM-No sexual activity: Depictions of children with no sexual activity – nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas.
Category 2: CEM – Child Non penetrate: Non-penetrative sexual activity between children or solo masturbation by a child.
Category 3: CEM – Adult Non Penetrate: Non-penetrative sexual activity between child(ren) and adults(s). Mutual masturbation and other non-penetrative sexual activity.
Category 4: CEM – Sadism/Bestiality: Penetrative sexual activity between children(ren) or between child(ren) and adults(s) – including but not limited to intercourse, cunnilingus and fellatio.
Category 5: Sadism, bestiality or humiliation (urination, defecation, vomit, bondage, etc.).
Category 6: CEM – Animated or Virtual: Anime, cartoons, comics and drawings depicting children engaged in sexual poses; or activity or material featuring any of the activities taking place in categories 1 to 5 but in an image which is not (or does not appear to be) a genuine photograph and/or feature a real child.[14]
[14] Exhibit 1, HB537-HB538.
Count 1 concerned images classified as Category 1 files pursuant to the ANVIL scale. The Crown Facts state that comments posted by the Applicant on 1 January 2017 on images of females under 18 years of age included ‘nice thigh gap’, ‘ready and waiting’, ‘love to breed her’, ‘nice ass’, and ‘love her mound’.[15] In cross-examination, the Applicant accepted that he made those comments. The Crown Facts state that ‘further comments were posted between 1 January 2017 and 1 February 2017’.
[15] Exhibit 1, HB539.
Count 2 concerned images classified as follows: 21 Category 1 files, two Category 3 files, three Category 4 files and one Category 6 file.
The Crown Facts indicate that the Applicant admitted to police that he used the search terms ‘preteen’, ‘teen pussy’ and ‘young tween’.[16] A police statement identified that the following search terms has been entered in the internet browser used by the Applicant: ‘preteens in lingerie’, ‘tweens in lingerie’, ‘tight pre teen cunny’, ‘legs spread teens’, ‘dads n daughters fuck’, ‘teen anal’, ‘young pussy’ and ‘dad fucking son’.[17]
[16] Exhibit 1, HB541.
[17] Exhibit 1, HB571.
In cross-examination, the Applicant accepted that the search terms described in paragraph ‎32 were identified or located on review of his computer tower seized by police. The Applicant said that he understood the term ‘tween’ to mean a person aged between 10 and 12, or 12 and 13.[18]
[18] 20 March 2025.
Seriousness
The Direction provides that, without limiting the range of conduct that may be considered very serious, the types of crimes or conduct that are viewed very seriously by the Australian government and the Australian community are ‘violent and/or sexual crimes’, ‘crimes of a violent or sexual nature against women or children, regardless of the sentence imposed’, and ‘acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed’.[19]
[19] Paragraph 8.1.1(1)(a) of the Direction.
The subject offending constitutes crimes of a sexual nature against children. I find that the subject offending falls within the category of crimes under paragraph 8.1.1(1)(a) of the Direction and is viewed very seriously by the Australian government and the Australian community.
The Applicant submits that even though the subject offending ‘is deemed to be ‘very serious’, that does not detract from the obligation on the decision-maker to carefully consider the nature of the offending by reference to its objective facts and the subjective circumstances of the offender’.[20] The Applicant submits that ‘the risk evaluation exercise mandated under paragraph 8.1.2(2) requires cumulative consideration be given to all of the enumerated factors listed therein, which itself requires careful consideration of the nature and seriousness of the offending…’.[21]
[20] Applicant’s supplementary submissions in reply, [1].
[21] Applicant’s supplementary submissions in reply, [7].
The Applicant relies upon R v De Leeuw [2015] NSWCCA 183 regarding the matters that would ordinarily inform the assessment of the objective seriousness of the offences involving child exploitation material.[22] Ms Chalmers SC gave examples of the more insidious offending involving child exploitation material in closing submissions, and described the range of sentences that may be imposed.
[22] Applicant’s Statement of Facts, Issues and Contentions, [44].
The Court considered that ‘most of the images were at the lowest level of categorisation’ and the subject offending to be ‘at the less serious end of the spectrum’.[23]
[23] Exhibit 1, HB277-HB281.
Sentence
Paragraph 8.1.1(1)(c) of the Direction provides that ‘with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above’, the decision-maker must have regard to the sentence imposed by the courts. As the subject offending concerns crimes mentioned in (a)(ii), I am not required to have regard to the sentence imposed for the purposes of considering the nature and seriousness of the offending.
Impact on victims and their families
I am to have regard to the impact of the offending on any victims of the offending and their family, where this information is available and where the Applicant has been afforded procedural fairness.[24] In this case, there is no evidence on which I can make findings specific to the victims or their families that may have been the subject of the material in question. It is relevant that in sentencing remarks, the Court accepted Crown submissions that:
“… possession of child pornography is not a victimless crime because children are sexually abused in order to supply the market. This leads to a conclusion that there is a relationship between the offence and the exploitation of young children.”[25]
[24] Paragraph 8.1.1(1)(d) of the Direction.
[25] Exhibit 1, HB279.
Frequency of offending, and whether any increasing trend in seriousness
The subject offending concerns the period 1 January 2017 to 1 February 2017. The Court took into account that ‘the offending [did] not seem to have occurred over a long period’.[26] I find that there was no increasing trend in seriousness.[27]
[26] Exhibit 1, HB279.
[27] Paragraph 8.1.1(1)(e) of the Direction.
Paragraph 8.1.1(h)-(i)
For the purposes of paragraph 8.1.1(1)(g)-(i) of the Direction, there is no evidence that the subject offending has been repeated and there is no evidence of the Applicant having provided false or misleading information to the Department.[28]
[28] Paragraph 8.1.1(1)(e)-(g) of the Direction.
There is no evidence that the Applicant has been formally warned, or has been otherwise made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the Applicant’s favour). There is no evidence that the Applicant had committed offences outside Australia or engaged in conduct outside Australia that would be an offence in Australia.[29]
[29] Paragraph 8.1.1(1)(g)-(i) of the Direction.
Conclusion on the nature and seriousness of the Applicant’s conduct
I find that the subject offending is viewed very seriously by the Australian Government and the Australian community. I find that there is a relationship between the subject offending and the exploitation of young children. The Court’s view was that the subject offending was ‘at the less serious end’ of the spectrum of the offences concerned. I accept that there is a spectrum but, even at the less serious end, I find that the subject offending was serious. The subject offending was not repeated, and I find that the Applicant did not have any criminal convictions or history of behaviour that would amount to serious conduct, either prior or after the subject offending.
Risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct

In considering the need to protect the Australian community from harm, I 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.[30]
[30] Paragraph 8.1.2(1) of the Direction.
In assessing the risk that may be posed by the Applicant to the Australian community, I have regard to, cumulatively,
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…[31]
Nature of harm to individuals or the Australian community should the non-citizen engage in further criminal conduct or other serious conduct: paragraph 8.1.2(2)(a)
[31] Paragraph 8.1.2(2) of the Direction.
Should the Applicant engage in further criminal conduct or other serious conduct similar to the subject offending, the potential for harm to others is very significant. The Court accepted Crown submissions that:
“… possession of child pornography is not a victimless crime because children are sexually abused in order to supply the market. This leads to a conclusion that there is a relationship between the offence and the exploitation of young children.”[32]
[32] Exhibit 1, HB279.
Likelihood of the Applicant engaging in further criminal conduct or other serious conduct
In assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to the likelihood of the Applicant engaging in further criminal conduct 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… .[33]
[33] Paragraph 8.1.2(2)(b) of the Direction.
Information and evidence on the risk of the Applicant re-offending
Chloe Oliver, Psychologist
On 31 January 2025, Ms Chloe Oliver, Psychologist, conducted a clinical assessment of the Applicant via Microsoft Teams. Ms Oliver produced a report dated 12 February 2025.[34] I acknowledge the limitations raised by Ms Oliver in being unable to assess the Applicant in person, having been denied a request to conduct the assessment face-to-face.[35]
[34] Exhibit 1, HB18-HB43.
[35] Exhibit 1, HB19.
Ms Oliver concluded that the Applicant presents as being at a low risk of future offending with reference to [child sexual exploitation material] or contact offending.[36] In cross-examination, Ms Oliver said that she had not undertaken formal training in the risk assessment tool described as Static 99 but said that she does not consider it a reliable tool because it does not consider dynamic factors. Ms Oliver said that she is not trained in assessment of paedophilic disorders. Ms Oliver said that she formed the view that the Applicant did not have a sexual interest in children because he reported a long history of accessing adult pornography without accessing child exploitation material. Ms Oliver confirmed that the Applicant demonstrated an insight into understanding that the children in exploitation material were real children.[37]
[36] Exhibit 1, HB37.
[37] 19 March 2025.
Ms Oliver identified that the Applicant’s risk factors to be social isolation and his introverted nature, limited emotional support, and alcohol use. Ms Oliver considered that the Applicant was looking for an escape mechanism at the time of the subject offending, that he was accessing pornography and had become desensitised to the material leading him to access the child exploitation material.
Ms Oliver considered that the Applicant ‘requires ongoing intervention with a psychologist who is suitably experienced in conditions of addiction, dependence and social difficulties to assist him with formulation of strategies to prevent alcohol relapse and monitor for any changes in current risk classification’.[38]
Hope Rigby, Psychologist
[38] Exhibit 1, HB38.
As part of his supervised sentence, the Applicant was required to undertake psychology treatment and attended Ms Hope Rigby, Psychologist. The Applicant first attended Ms Rigby on 1 December 2018 for an assessment and attended Ms Rigby for two years between February 2019 and February 2021. Ms Rigby’s opinion as to Applicant’s risk of re-offending was that it is ‘extremely low’. Ms Rigby considered that the risk factors for the Applicant at the time of the subject offending were anxiety, depression and isolation. Ms Rigby agreed that had she known about the Applicant’s alcohol use, she would have also considered that a risk factor.[39]
[39] 19 March 2025.
I prefer Ms Oliver’s opinion on risk to that of Ms Rigby, because Ms Rigby had not undertaken a recent assessment of the Applicant and because Ms Rigby was apparently not aware of any concerns regarding the Applicant’s alcohol use, discussed in paragraphs 57 -‎69 below.
Court’s assessment
The Court found ‘rehabilitation’ to be a ‘very significant factor’ in considering the Applicant’s sentence.[40] Ms Chalmers SC submitted that the Court’s approach in sentencing, suspending the Applicant’s sentence and releasing him under supervision reflects the Court’s assessment of the Applicant having a low risk of re-offending.
Applicant’s evidence
[40] Exhibit 1, HB281.
The Applicant gave evidence that he has a very strong motivation not to re-offend, and he is ‘100% confident’ that he will not re-offend, because the consequences have been ‘drastic’, noting his conviction, immigration detention and the hurt that he has caused his family.[41]
Alcohol use
[41] 20 March 2025.
In his statutory declaration dated 4 December 2019, the Applicant stated that prior to the subject offending he was ‘not in a positive place’, and that he was feeling ‘depressed due to anxieties about work, and an overwhelming feeling of loneliness’. The Applicant stated that he was ‘drinking far too much, eating the wrong foods and not exercising’.[42] In cross-examination, the Applicant accepted that at the time of the subject offending he was depressed, lonely and drinking heavily.[43]
[42] Exhibit 1, HB385.
[43] 20 March 2019.
The Respondent submitted that the Applicant had not addressed his alcohol use and ‘how this may impact his behaviour or mental condition’. The Respondent submitted that the Applicant’s ongoing behavioural concerns may contribute to his risk of re-offending, despite Ms Oliver concluding that the Applicant presents a ‘low risk’ of future offending.[44]
[44] Respondent’s Statement of Facts, Issues and Contentions, [38].
The Applicant submitted that while alcohol use was an attendant factor at the time he committed the offending, it is not suggested that the fact of alcohol consumption alone was directly causative of his offending behaviour. The Applicant submits that despite ongoing alcohol consumption in the past eight years, the Applicant has not reoffended, save for a minor traffic infringement.[45]
[45] Applicant’s supplementary outline of submissions, [10].
Ms Oliver’s 2025 report records that:
(a)the Applicant reported that he could ‘consume up to 6 standard drinks a night on a weeknight and sometimes more than this on weekends’
(b)when discussing his alcohol consumption, the Applicant reported that prior to him being placed in detention, he did not hold a belief that this was problematic in his life or had negative impacts
(c)the Applicant confirmed that [the subject offending] had occurred whilst intoxicated or consuming alcohol
(d)the Applicant reported that at the time the subject offending occurred, he had a high degree of social isolation and that he would spend evenings with his sons using the internet or online gaming whilst he would consume alcohol, which had led him to accessing adult pornography each night for a number of months before ‘he then independently searched for the CAM/CSEM’
(e)the Applicant was largely unable to account for the escalation in his behaviours.[46]
[46] Exhibit 1, HB22.
Following a personal assessment inventory (PAI), Ms Oliver reported on clinical features which included that:
(a)the configuration of the clinical scales suggest a person with a history of drinking problems who is quite unhappy and pessimistic
(b)the Applicant’s alcohol problems have probably led to severe impairment in his ability to maintain his social role expectations
(c)the Applicant is likely to be unable to cut down on his drinking despite repeated attempts at sobriety
(d)the Applicant reports a number of difficulties consistent with a significant depressive experience
(e)the Applicant’s depression and alcohol use may be related in a number of different ways; the depression could be deriving the alcohol use or it could be a consequence of the disruption association with his alcohol use.[47]
[47] Exhibit 1, HB26-HB27.
In cross-examination, and with reference to her notes, Ms Oliver said that the Applicant told her that at the time of offending he was drinking 4-5 beers and a bottle of wine in the evenings. Ms Oliver considered that the Applicant displayed signs of alcohol dependency at the time of the subject offending. Ms Oliver said that the Applicant’s motivation for drinking alcohol at the time of the offending is different to his current motivation for drinking alcohol.[48]
[48] 19 March 2025.
Ms Oliver reported that the Applicant ‘ceased drinking for a prolonged period of time. Whilst his alcohol use did recommence, there are no indications that he has engaged in any further offending behaviours’.[49]
[49] Exhibit 1, HB33.
On an Alcohol Use Disorder Identification Test (AUDIT) conducted by Ms Oliver, the Applicant’s recorded a score of ‘16’ described as ‘harmful’.[50] In cross-examination, Ms Oliver explained that ‘harmful’ relates to a person’s physical health. Ms Oliver assessed the Applicant as having a ‘low risk’ for dependence symptoms.[51] Ms Oliver confirmed in cross-examination that based on the AUDIT, she did not consider alcohol to be a current risk factor for the Applicant in terms of dependency or alcohol use disorder.
[50] Exhibit 1, HB30.
[51] Exhibit 1, HB30.
Ms Oliver considered that the Applicant ‘requires ongoing intervention with a psychologist who is suitably experienced in conditions of addiction, dependence and social difficulties to assist him with formulation of strategies to prevent alcohol relapse and monitor for any changes in current risk classification’.[52]
[52] Exhibit 1, HB38.
Relevantly, the Court did not impose an alcohol prohibition condition on the Applicant but stated:
“…The [Applicant] advised that he welcomed the thought of attending counselling with a psychologist. The [Applicant] also advised he believes his drinking had become too much lately due to the stress of the current court matters and he advised he would like to explore the option of AOD counselling. This satisfied me as to the issue that had been of concern and I did not need to raise with counsel today.”[53]
[53] Exhibit 1, HB280.
In cross-examination, Ms Rigby said that the Applicant did not use the excuse of intoxication for the subject offending and said that there was ‘nothing in [her] notes that [the Applicant] was drinking at the time of offending’. Ms Rigby considered that when she was treating the Applicant, he may not have made a link between his alcohol use and subject offending. As noted in paragraph ‎54 above, Ms Rigby agreed that had she known about the Applicant’s alcohol use, she would have also considered that a risk factor. Ms Rigby said that one of the assessments conducted on the Applicant included questions about alcohol use, and results did not show an elevated score. Ms Rigby considered that the Applicant demonstrated excellent engagement in therapy and was not surprised if the Applicant has made a link between alcohol and the subject offending by 2025.
In cross-examination, the Applicant said that he could not remember exactly, but he believed that his alcohol consumption at the time of the subject offending was ‘around or about 5 or 6 drinks per night’. The Applicant said that he would not have had 4 or 5 beers and a bottle of wine, but he might have had beers or wine. The Applicant said that during the supervision period he had not ceased drinking completely but that he had reduced his alcohol consumption and would not have consumed alcohol every day. He said that prior to detention in 2025, his alcohol consumption had increased to pre-offending levels.
The Applicant said his pre-detention level of alcohol consumption does not impact on his confidence about not re-offending because he now knows the offending was wrong, and he does not want to go through what he has been through again and that is an incentive not to re-offend. The Applicant gave evidence that he had not undertaken counselling specific to alcohol use, but that that he intends engage in counselling with Amity Community Services in relation to his alcohol use.[54]
Consideration
[54] 20 March 2025.
I do not place weight on any inconsistencies in evidence of Ms Oliver and the Applicant as regards the volume of alcohol consumed by the Applicant at various times, because I consider such inconsistencies are likely attributable to the passage of time since the subject offending and the Applicant’s reaction to detention and uncertainty about the future.
However, given the Court’s comments regarding the Applicant’s alcohol use in February 2019, the Applicant’s own concerns regarding his alcohol use in December 2019 and the Applicant’s reported alcohol use to Ms Oliver in 2025, it is difficult to reconcile the apparent lack of discussion about alcohol use between the Applicant and Ms Rigby in fortnightly sessions over the course of 2019-2021. Ms Rigby’s November 2019 report does not refer to alcohol. This is one of the reasons that I prefer Ms Oliver’s opinion on risk to Ms Rigby’s opinion, as referred to in paragraph ‎54 above.
The Applicant submits that ‘it cannot be said that ongoing alcohol use alone increases the Applicant’s risk of reoffending to an unacceptable level’.[55] While I accept that ongoing alcohol use alone does not increase the Applicant’s risk level, based on the evidence described in paragraphs ‎60-‎69 above, I find that:
(a)alcohol use was an attendant factor at the time the Applicant offended, the Applicant’s alcohol use had increased prior to detention after a period of decreased alcohol use, and the Applicant has not undertaken any counselling to address his alcohol use, and
(b)Ms Oliver recommended that the Applicant requires ongoing intervention with a psychologist to prevent alcohol relapse and to monitor for any changes in current risk classification.[56]
Mental health
[55] Applicant’s supplementary submissions, [11].
[56] Exhibit 1, HB38.
In 2018, Ms Rigby reported that the Applicant to be ‘assessed as suffering from anxiety in the severe range’, and ‘depression in the extremely severe range’. Ms Rigby considered it likely that both anxiety and depression were pre-existing conditions to the subject offending.[57] Ms Rigby assessed the Applicant as having ‘good insight’ and concluded that he has the positive traits of insight and treatment seeking, as well as the Applicant being ‘less likely than the average person to engage in antisocial or harmful behaviours to others’. Ms Rigby reported that the Applicant expressed remorse for his actions.[58]
[57] Exhibit 1, HB542-HB547.
[58] Exhibit 1, HB542-547.
In November 2019, Ms Rigby described the use of cognitive behavioural therapy sessions with the Applicant. Ms Rigby said that the Applicant was ‘consistent in his commitment to attending, reflecting and implementing change’ and ‘has shown insight into the precipitating factors that lead to his actions and which had led to the criminal charges’. Ms Rigby considered that the Applicant did not meet the criteria for pornography addiction. Ms Rigby considered that the outcome of therapeutic intervention had been a ‘significant and lasting reduction in symptoms relating to anxiety and depression’, and that the Applicant has exhibited conscious control over his actions in the present and strong and demonstrable commitment to family and community.[59]
[59] Exhibit 1, HB426-432.
In 2025, Ms Oliver noted that the Applicant reported that he had never been formally diagnosed with a mental health condition, although had been treated for anxiety.[60] Ms Oliver conducted a Depression, Anxiety and Stress Scale 21 (DASS-21), which yielded a result of ‘extremely severe depression’ for the Applicant.[61] In cross-examination, Ms Oliver explained that that the Applicant told her that his mood had worsened significantly since entering detention because of isolation and fear about the future. Ms Oliver considered the Applicant’s depressive symptoms at the time of her assessment were more likely to be reaction to his environment and circumstances, rather than a long-term state.[62]
[60] Exhibit 1, HB23.
[61] Exhibit 1, HB29-HB30.
[62] 19 March 2025.
Evidence of rehabilitation
In cross-examination, the Applicant explained how he has changed his thinking since the subject offending and is able to distract himself if he finds himself thinking about accessing pornography. He explained that if he has thoughts of looking at material, he will go and do something else. The Applicant gave the example of going outside and engaging in physical tasks.[63] The Applicant’s evidence of his use of distraction reflects the notes recorded by the Department of Corrections parole officers on 9 April 2019 and 21 May 2019.[64]
[63] 20 March 2025.
[64] Exhibit 2, p 27.
Ms Oliver reported that the Applicant’s responses on the PAI indicate a ‘high level of motivation for engagement in treatment services’ and said that the Applicant ‘reports a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility’.[65] Ms Oliver noted that the Applicant had ‘met all requirements during his suspended sentence, engaged in regular therapy with a psychologist, gained social supports through the ‘Man Shed’ and ceased drinking for a prolonged period of time. Whilst his alcohol use did recommence, there are no indications that he has engaged in any further offending behaviours’.[66]
[65] Exhibit 1, HB29.
[66] Exhibit 1, HB33.
Evidence of the Applicant’s rehabilitation also includes the following.
(a)The subject offending occurred in 2017 and that the Applicant has lived in the community since that time with no evidence of the Applicant having committed any further offending or any other relevant conduct since that time.
(b)Ms Oliver said that the Applicant did not demonstrate any behaviours of deception or non-compliance and demonstrated behavioural change since the subject offending.[67]
(c)The Applicant was fully compliant with supervision orders over the course of a two-year period.[68]
[67] 19 March 2025.
[68] Exhibit 2, summonsed records.
Protective factors in place for the Applicant include the following.
(a)The Applicant has been employed on a long-term basis with the same employer. The Applicant’s managers are aware of the subject offending and have offered counselling and support to the Applicant and continue to hold the Applicant’s job for him since he has been detained.[69]
(b)The Applicant is required to comply with reporting obligations under the Child Protection Offender Registry (ANCOR) for 15 years, having commenced in February 2019.[70]
(c)The Applicant became involved in the Men’s Shed after the subject offending and became a committee member in 2023.[71]
(d)The Applicant and his wife adopted two rescue dogs and he walks the dogs on a daily basis.[72]
(e)The Applicant has undertaken trips with his family and extended family and he spends time with his family and extended through family dinners and other occasions.[73]
[69] Exhibit 1, HB420 and HB422.
[70] Exhibit 1, HB288-HB293.
[71] Exhibit 1, HB239 and HB379.
[72] Exhibit 1, HB386.
[73] Exhibit 1, HB393 and HB396.
Conclusion on the protection of the Australian community

I find that the subject offending constitutes conduct viewed very seriously by the Australian Government and the Australian community and I find that it was serious offending. I consider that the potential for harm to the Australia community, should the Applicant commit offences of a similar nature in the future, is significant.
I find that the Applicant has engaged in therapy, pro social activities and that there are protective factors for the Applicant in the community. That the Applicant has lived in the community since the subject offending and has not re-offended is demonstrative of the Applicant’s rehabilitation. I accept Ms Oliver’s assessment of the Applicant as having a low risk of re-offending, and that the Court’s approach indicated that it considered that the Applicant had a low risk of re-offending. Low risk does not mean no risk, and it is relevant that alcohol use was an attendant factor at the time the Applicant offended, that the Applicant’s alcohol use had increased prior to detention after a period of decreased use and that the Applicant has not undertaken any counselling to address his alcohol use. Relevantly, Ms Oliver recommended that the Applicant requires ongoing intervention with a psychologist to prevent alcohol relapse and to monitor for any changes in current risk classification.[74]
[74] Exhibit 1, HB38.
I find that primary consideration 1 weighs in favour of exercising the discretion to cancel the visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
I do not attribute any weight to this primary consideration.
PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Impact on immediate family members in Australia
I am to consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australia permanent residents or people who have a right to remain in Australia indefinitely.[75]
[75] Paragraph 8.3 of the Direction.
The Applicant submits that each of the following immediate family members, who live in Australia and are Australian citizens, will be impacted by the decision.
(a)SR, the Applicant’s wife.
(b)DR, the Applicant’s eldest son.
(c)BR, the Applicant’s youngest son.
(d)CD, the Applicant’s sister.
(e)JR, the Applicant’s mother.
(f)NR, the Applicant’s father.
SR (the Applicant’s wife)
SR was born in Australia and is an Australian citizen. She provided three statements in support of her husband and gave evidence at the hearing.[76] The Applicant and his wife have been married for 31 years.
[76] Exhibit 1, HB89-HB92; HB95-HB98; HB99-HB101; 20 March 2025.
SR gave evidence at the hearing, and in her most recent statement, that she is no longer employed. She said that ‘due to the stress of [the Applicant’s] situation, I did not feel as if I could improve my performance to meet the expectations.[77]
[77] Exhibit 1, HB89, [2].
In relation to their financial situation, SR explained that.
“…I spoke with my financial advisor about accessing my superannuation funds now for the mortgage and car loan. If [the Applicant] is forced to leave Australia, I believe that we will need to sell the house and the car as there is no way I can afford the loan repayments by myself.”[78]
[78] Exhibit 1, HB92, [33]-[34].
SR stated that if her husband is returned to New Zealand, she does not know what she will do, but fears that whether she goes to New Zealand or Australia she will ‘lose her family permanently’.[79]
[79] Exhibit 1, HB92, [37].
In her 2019 statement, SR explained that her mother lives in South Australia and has medical issues.
In her 2024 statement, SR described how her relationship with her husband has suffered and how she and her husband are committed to working on their relationship.
In cross-examination, SR said that she did not know what she would do if her husband had to go back to New Zealand. She said that if she were to stay in Australia, she did not know what her relationship would be with her husband.
I accept that exercise of the discretion to cancel the visa will have a very significant impact on SR.
DR (the Applicant’s eldest son), aged 29
DR is the Applicant’s eldest son and provided a statement in support of his father.[80]
[80] 11 February 2025.
DR was diagnosed with autism in 2008 and has experienced significant mental health issues.[81]
[81] Exhibit 1, HB124.
DR moved out of home in 2020, states that he has a ‘meaningful relationship’ with his mother and father and meets them for meals every few weeks, as well as spending Christmas and family events together, and states that he is self-sufficient and can pay his own rent and household bills, but relies on his father’s help for setting up his private health insurance, car registration, yearly services and car insurance.[82]
[82] Exhibit 1, HB119, [17].
DR states that the thought of his father returning to New Zealand permanently makes him feel extremely anxious, and he will be ‘emotionally devastated’ if he father leaves Australia.
Ms Rigby conducted an assessment in relation to DR and concluded that he is ‘suffering from a lifelong debilitating condition in the form of Autism and that he has ‘measurable deficits in the field of social interactions, and measurable deficits in communication, and that as Autism is a lifelong condition, this will not change or improve’. Ms Rigby assessed his mental health as poor, with extremely high scores across the domains of Anxiety, Depression and Stress. Ms Rigby states:
“[DR] is demonstrating a strong reliance on his father for emotional and practical support. [DR] is demonstrating that he has no other person to access for emotional and practical support. [DR]’s measurable deficits…indicated that he would be very unlikely to be able to find another emotional and practical support person.”
Ms Rigby ‘is of the strong opinion that if the Applicant were to be removed, ‘there would be a very high and significant risk of harms to his son [DR]’. She also considers that the resultant harms would be significant and have a severely negative impact on the mental health of DR.[83]
[83] Report of Hope Rigby, Psychologist, 10 February 2025.
While I accept that DR is living independently, I find that exercise of the discretion to cancel the visa would likely have a particularly negative impact on him.
BR (the Applicant’s youngest son), aged 26
BR provided a statement dated 11 February 2025.[84]
[84] Exhibit 1, HB185-189.
BR stated that he moved to Queensland in 2021, that he speaks to his parents at least once a fortnight and he tries to visit his family in Darwin at least twice a year. He stated that he would be devastated if his father is returned to New Zealand as he would lose the ability to see him and would worry constantly about his wellbeing.[85]
[85] Exhibit 1, HB185-HB188.
While I accept that BR may be able to keep in contact with his father by phone and electronic means, I find that exercise of the discretion to cancel the visa would have a negative impact on him. I accept that the financial cost of travel to New Zealand would impact BR on being able to visit his father.
CD (the Applicant’s sister)
CD stated that the Applicant is her only sibling, and that they have a close relationship. She stated that the Applicant has provided support to her family, including assistance with kitchen renovations. CD submitted that her anxiety ‘flared up’ when the Applicant was taken into immigration detention. She believes that the Applicant’s removal would significantly affect her mental health.[86]
[86] 12 February 2025.
I find that exercise of the discretion to cancel the visa would have a negative impact on CD and her family.
JR (the Applicant’s mother), aged 84, and NR (the Applicant’s father), aged 85
The Applicant’s parents provided two joint statements in support of the Applicant.[87] They stated that:
(a)they have a close relationship with the Applicant, and described regular family gatherings
(b)they have no hesitation on calling on the Applicant for help with maintenance jobs around their property
(c)they both have significant medical issues, and their last trip to New Zealand was challenging, and they cannot see themselves being able to travel far in the future, from a physical and financial perspective
(d)they would be devastated if the Applicant has to leave Australia.
[87] Exhibit 1, HB151; HB153-HB154.
In a statement made on 11 February 2025, the Applicant’s father described being diagnosed with congestive heart failure which is incurable but controllable.[88]
[88] Exhibit 1, HB175, [10].
In cross-examination, the Applicant described helping his parents out whenever needed, and explained that he lives close to them.
The Applicant’s sister describes their parents as being very dependent on the Applicant. CD states ‘I am not sure that my parents would be able to continue to live in their own home if [the Applicant] was to be departed. I am also unsure as to how they would cope emotionally and have grave concerns that they would not cope’.[89]
[89] 24 November 2019.
I find that exercise of the discretion to cancel the visa would likely have a very negative impact on the Applicant’s parents.
Strength, nature and duration of any other ties
I am to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[90]
Length of time in Australia
[90] Paragraph 8.2(2)(a)-(b) of the Direction.
The Applicant has lived in Australia for 40 years, having arrived as an 18-year-old with his parents and his sister. He did not arrive as a ‘young child’ for the purposes of paragraph 8.2(2)(a) of the Direction.
It was 32 years after the Applicant arrived in Australia that the subject offending occurred, and I give weight to the Applicant’s involvement in the community, his long-term employment and support to his family since his arrival in Australia.
Other family and social links
The Applicant submits that he has adult nieces and nephews residing in Australia. I accept those family members will be impacted by the decision.
The Applicant has been involved in Men’s Shed since 2019 and has recently become a committee member.
The Applicant has been employed by Bridge Toyota for over 32 years, and he continues to be employed in the position of Stock Controller. The Applicant’s managers are aware of the subject offending and have offered counselling and support to the Applicant and continue to hold the Applicant’s job for him since he has been detained.[91]
[91] HB420 and HB422.
Conclusion on primary consideration 3
I find that Primary Consideration 3 weighs heavily against exercise of the discretion to cancel the visa.
PRIMARY CONSIDERATION 4: BEST INTEREST OF MINOR CHILDREN:
The parties agreed that there is no minor child that will be affected by a decision to cancel the Applicant’s visa. I do not give this consideration any weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[92]
[92] Paragraph 8.5(1) of the Direction.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Relevantly, that conduct includes serious crimes against children.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, the High Court described paragraph 8.4(4) (as it was then):
“…to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be ‘in the particular case’…but to proceed on the basis that the views of the Australian Government…are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90.”[93]
[93] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52].
I find that the Applicant has committed offences that are viewed very seriously by the Australian community. The nature of those offences falls under a category specified in paragraph 8.5(2) of the Direction. I find that the Australian community, as a norm, would expect that the Australian Government would not allow the Applicant to remain in Australia.
Paragraph 8.5(3) of the Direction states that the expectations outlined in paragraph 8.5 apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
I find that primary consideration 5 weighs in favour of exercising the discretion to cancel decision.
OTHER CONSIDERATIONS
Paragraph 9 sets out three ‘other considerations’ to be taken into account where relevant:
(a) legal consequences of the decision
(b) extent of impediments if removed
(c) impact on Australian business interests.
Other consideration (a): Legal consequence of the decision
The Applicant submitted that he ‘does not attempt to undermine the purpose of the humanitarian program by making unwarranted protection claims’.[94] I do not attribute any weight to other consideration (a).
[94] Applicant’s Statement of Facts, Issues and Contentions, [65].
Other consideration (b): Extent of impediments
Paragraph 9.2 requires me to consider the extent of any impediments that the Applicant may face if removed from Australia to his home country, which I find to be New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
- the Applicant’s age and health
- whether there are substantial language or cultural barriers, and
- any social, medical and/or economic support available to the Applicant in New Zealand.
Age and health
The Applicant is 58 years of age. He takes medication for high blood pressure and has been assessed as having anxiety and depression.
Ms Oliver considered that in January 2025, the Applicant presented with symptoms of depression in the ‘extremely severe’ category attributable to being in immigration detention and uncertainty about the future. Ms Oliver recommended that the Applicant be seen by a psychiatrist and assessed for suitability for anti-depressant medication. She considered that the Applicant requires ongoing intervention with a psychologist to assist him with formulation of strategies to prevent alcohol relapse.
Ms Oliver reported that the Applicant’s removal from Australia and his family/social and work supports would have a far more detrimental impact on his mental health and subsequent level of risk than his remaining.[95]
[95] Exhibit 1, HB38.
The Applicant’s wife, parents, sister and children expressed concerns about the Applicant’s mental health if he is returned to New Zealand.
Language and cultural barriers
The Applicant lived in New Zealand until he was 18 years of age and speaks English. The Applicant submits that that ‘there are no facts in these circumstances that indicated that there will be substantial language or cultural barriers’ for the Applicant in New Zealand.[96]
[96] Applicant’s Statement of Facts, Issues and Contentions, [68].
Social, medical and/or economic supports
The Applicant submits that he has no social or professional connections in New Zealand. He considers that his lack of local references, professional networks and recent experience in the New Zealand labour market will impede his ability to secure meaningful employment. I accept that it would be difficult and take time for the Applicant to establish himself socially, professionally and financially.
I find that the Applicant requires treatment for his mental health and alcohol use. The Respondent submits that the available country information suggests that there are general and mental health care supports available to the Applicant in New Zealand.[97] I accept that submission.
[97] Respondent’s Statement of Facts, Issues and Contentions, [57].
The Respondent submits that the Applicant has shown the ability to maintain familial relationships during his time in custody via telephone. I accept that the Respondent would be able to maintain contact through phone and other electronic means. However, I consider that the Applicant is likely to be impacted by the lack of in-person family and social support.
Conclusion on other consideration (b)
I find that the impediments that the Applicant may face if he is returned to New Zealand include isolation because of a lack of family and social support, and an associated risk of a decline in his mental health. I consider that the Applicant would require treatment for his mental health and alcohol use, and I am satisfied that he would be able to access that treatment in New Zealand. I consider that it may be difficult and that it would take time, for the Applicant time to establish himself socially and financially in New Zealand.
I find that other considerations (b), being the impediments that the Applicant may face if returned to New Zealand, weigh moderately against exercise of the discretion to cancel the visa.
Other consideration (c): Impact on Australian business interests
The Direction provides that ‘an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.[98]
[98] Paragraph 9.3(1) of the Direction.
I accept the submission that the Applicant, in his role as Stock Controller for the same company over a long period of time, demonstrates that his skills, knowledge and experience will not be easily replaceable. The Applicant’s employer’s evidence is that replacing the Applicant at short notice would be impossible, and that losing him from the business would negatively impact the operation of the business and staff morale. However, I am unable to find that cancellation of the visa would significantly compromise the delivery of an important service in Australia. I do not give any weight to other consideration (c).
CONCLUSION
One of the principles in the Direction relevant to the Applicant, having lived for almost 40 years in Australia, is that…’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’.[99] This principle is part of a framework within which decision-makers should approach their task, and sits alongside the other principles under paragraph 5.2, including that the safety of the Australian Community is the highest priority of the Australian Government.
[99] Paragraph 5.2(6) of the Direction.
Informed by the principles in paragraph 5.2, I am required to take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.[100] I am required to comply with the Direction and ‘bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together’.[101]
[100] Paragraph 6 of the Direction.
[101] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [23].

In considering primary consideration 1, I find that the subject offending constitutes conduct viewed very seriously by the Australian Government and the Australian community and I find that it was serious offending. I consider that the potential for harm to the Australia community, should the Applicant commit offences of a similar nature in the future, is significant. The Applicant has engaged in therapy, pro social activities and there are protective factors for the Applicant in the community. That the Applicant has lived in the community since the subject offending and has not re-offended is demonstrative of the Applicant’s rehabilitation. I accept Ms Oliver’s assessment of the Applicant as having a low risk of re-offending, and that the Court’s approach indicated that it considered that the Applicant had a low risk of re-offending. However, low risk does not mean no risk. Alcohol use was an attendant factor at the time the Applicant offended, and the Applicant’s alcohol use had increased prior to detention after a period of decreased use. The Applicant has not undertaken counselling to address his alcohol use and Ms Oliver recommended that the Applicant requires ongoing intervention with a psychologist to prevent alcohol relapse and to monitor for any changes in current risk classification. I find that primary consideration 1 weighs in favour of exercising the discretion to cancel the visa. The Direction provides that primary consideration 1 is generally to be given greater weight than other primary considerations.
I find that primary consideration 5 weighs in favour of exercising the discretion to cancel the visa, I find that the Australian community, as a norm, would expect that the Australian Government would not allow the Applicant to remain in Australia.
Primary consideration 3 weighs heavily against exercising the discretion to cancel the visa. I find that the Applicant’s family members, all of whom are Australian citizens will be negatively impacted by the Applicant’s removal from Australia.
I find that the other considerations (b), being the extent of impediments facing the Applicant, weighs moderately against exercising the discretion to cancel the visa.
The Direction provides that primary consideration 1 is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations. I find no reason to depart from that approach in this case. In the circumstances of this case, I find that primary considerations 1 and 5 outweigh primary consideration 3 and other consideration (b).
DECISION
The Tribunal affirms the decision to cancel the Applicant’s visa.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for the decision herein of Senior Member Shepherd.

............................[SGND].....................................
Associate

Dated: 31 March 2025

Date of hearing: 19 and 20 March 2025

Advocate for the Applicant:

Ms Mary Chalmers SC (Murray Chambers)

Advocate for the Respondent: Ms Tegan Weir (HWL Ebsworth Lawyers)

Date of hearing:	19 and 20 March 2025
Advocate for the Applicant:	Ms Mary Chalmers SC (Murray Chambers)
Advocate for the Respondent:	Ms Tegan Weir (HWL Ebsworth Lawyers)