RNSQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 465

RNSQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 465 (24 April 2025)
Applicant/s:  RNSQ
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2022/4675

Tribunal:General Member Gallagher
Place:Perth
Date:24 April 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides:
The decision of the delegate of the Respondent dated 2 June 2022 not to revoke the cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa under s 501CA(4) of the Migration Act1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa is revoked under s 501CA(4).

..........................................[SGD]..............................
General Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – child exploitation material offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 44-year-old citizen of Portugal – extent of impediments if returned to Portugal – Non-Revocation Decision is set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code 1913 (WA)
Migration Act 1958 (Cth)
Sentencing Act 1995 (WA)
CASES
Ahmed and Minister for Immigration [2018] AATA 4458
AJL20 v Commonwealth of Australia [2020] FCA 1305
Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Chen v Minister for Immigration and Border Protection [2017] FCA 46
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Fetelika v Minister for Home Affairs [2023] FCA 95
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Metcalfe v Minister for Immigration [2021] AATA 3498
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2738
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712
RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111
The State of Western Australia v McCarthy [2014] WASCA 210
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Delegate) dated 2 June 2022 not to revoke the cancellation of his Transitional (Permanent) (Class BF) visa (the Visa)[1] under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act), pursuant to s 501CA(4) of the Migration Act (the Reviewable Decision).
[1] R2, D1, G4, p 41.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal)[2] on 7 June 2022,[3] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
[2] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[3] R1, D1, G2, p 12.
s 500(1)(b) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.
APPLICANT’S IDENTITY
Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal ordered that the name, address or any other information tending to reveal the identity of the Applicant and any member of his family not be published. As such, the Tribunal has assigned to the Applicant the pseudonym RNSQ.
BACKGROUND AND HISTORY OF PROCEEDINGS
The background facts of this matter are set out in the Tribunal’s previous decision, RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712 at [5]-[20].
On 9 August 2022, the Tribunal first heard the matter.
On 26 August 2022, the Tribunal affirmed the Reviewable Decision.[4]
[4] RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712.
On 26 September 2022,[5] the Applicant filed an application for judicial review of the Tribunal’s decision with the Federal Court of Australia. The Applicant’s Federal Court matter was heard on 5 April 2023.[6]
[5] RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 [5].
[6] RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111.
On 18 September 2023, Feutrill J remitted the matter to the Tribunal for reconsideration.[7]
[7] RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111, Order 2.
The present matter was heard by the Tribunal on 26 November 2024.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.[8]
LEGISLATIVE FRAMEWORK
[8] Migration Act s 501CA(4)(b)(ii).
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and, if they do not, consideration of whether there is ‘another reason’ that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that section apply. Section 501(6) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or
…
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A)(a) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons if the Minister is satisfied that the person does not pass the character test because:
(a)The person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months;[9] or
(b)The person has been convicted of one or more sexually based offences involving child.[10]
[9] Migration Act s 501(3A)(a)(i).
[10] Migration Act s 501(3A)(a)(ii).
Additionally, under s 501(3A)(b) of the Migration Act, the person must be 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 a Territory.’
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[11] If the person makes representations in accordance with the invitation, then, under s 501CA(4), the Minister may revoke the cancellation decision if satisfied that either the person passes the character test or there is ‘another reason’ why the cancellation decision should be revoked.
[11] Migration Act s 501CA(3)(b).
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide whether, under s 501CA(4)(b)(ii), there is ‘another reason’ why the cancellation decision should be revoked.[12]
[12] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 26 November 2024 at the Tribunal’s Perth Registry. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and Migration Specialists. The Respondent was represented by Mr Tom Lettenmaier of Counsel, who was instructed by Ms Abby Tyagi of Minter Ellison.
The Applicant, his representative, and his lay witnesses appeared in-person. The Applicant’s expert witness, Mr Richard Balfour, Psychologist, appeared by video.
The Respondent’s representatives appeared in person.
At the hearing, the Applicant gave evidence and was cross-examined, along with Mr Balfour and three of the Applicant’s sisters, (W1, W3 and W6, respectively). A summary of their evidence, is compiled in Annexure A.[13]
[13] For completeness, the Tribunal notes that it heard oral evidence from Dr Phil Watts, Clinical Psychologist at the proceedings on 9 August 2022 only. A summary of Dr Watts’ evidence and related reports appears in RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712 [99]-[101], and his oral evidence appears in its entirety in the transcript of proceedings for the hearing held on 9 August 2022: R2, D10, pp 1072-1087.
The following documents were marked as exhibits:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 26 July 2024, filed 29 July 2024 (A1);
(b)Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions dated 2 October 2024, filed 3 October 2024 (A2);
(c)Applicant’s Bundle of Evidence filed 29 July 2024 (A3);[14]
(d)Statement of Applicant’s daughter dated 2 October 2024, filed 3 October 2024 (A4);
(e)Applicant’s Bundle of Documents filed 21 November 2024 (A5);[15]
(f)Respondent’s Statement of Facts, Issues and Contentions dated and filed 12 September 2024 (R1);
(g)Remittal Bundle prepared by the Respondent, comprising 3 volumes, 1264 pages, and documents D1 to D16, being documents submitted by the parties in the previous Tribunal proceedings and other related Tribunal and Federal Court documents (R2); and
(h)Respondent’s Additional Bundle of Evidence, being documents produced under summons by Dr Luke Williams, Psychologist[16], comprising 5 pages (R3).
[14] Including medical report by Dr Balfour dated 4 April 2024.
[15] Including statements of W1, W3, and W6.
[16] For completeness, Dr Williams was not called to give evidence at the hearing on 26 November 2024.
The Tribunal has taken into account the tendered evidence, along with the oral evidence provided by the Applicant’s witnesses.
At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110).
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act.
Failure to pass the character test arises as a matter of law.[17] As noted above, a person does not pass the character test if:
(a)they have a ‘substantial criminal record’, which, by s 501(7)(c), includes a person who has been sentenced to a term of imprisonment of 12 months or more;[18] or
(b)they have been convicted of one or more sexually based offences involving a child.[19]
[17] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, 685 [63].
[18] Migration Act s 501(6)(a).
[19] Migration Act s 501(6)(e).
On 15 August 2019, the Applicant was sentenced to a term of imprisonment of 14 months by the District Court of Western Australia for one charge of 'Possession of child exploitation material' pursuant to s 220 of the Criminal Code 1913 (WA).[20]
[20] R2, D1, G6, p 63
As such, the Applicant does not pass the character test by operation of both ss 501(6)(a) and 501(6)(e) of the Migration Act. The parties agree this is the case.
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must determine whether, having regard to the primary and other considerations contained within Direction no. 110, there is ‘another reason’ why the Cancellation Decision should be revoked. The statutory power to revoke can only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[21]
[21] Migration Act s 501CA(4)(b)(ii).
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably, and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
Direction no. 110
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction no. 99.[22]
[22] Direction no. 110 paras 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under
ss 501 or 501CA of the
Migration Act.[23] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction

no. 110 where relevant to the decision.[24]
[23] Direction no. 110 para 5.1(4).
[24] Direction no. 110 para 6.
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
1Australia 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 noncitizens 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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 [sic] risk of causing physical harm to the Australian community.
5Australia 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.
6With 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.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The 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.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[25]
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; and
5expectations of the Australian community.
[25] Direction no. 110 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[26]
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
[26] Direction no. 110 para 9.

Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (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.
3One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test,[27] the Tribunal must determine whether, having regard to the primary and other considerations contained within Direction no. 110, there is another reason why the Cancellation Decision should be revoked.
[27] See [28]-[29] above.
The statutory power to revoke can only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[28]
[28] Migration Act s 501CA(4)(b)(ii).
The Applicant contended that the Cancellation Decision should be revoked for the following reasons:[29]
(a)the best interests of his two minor age Australian citizen children, currently aged 14 and nine, who will be unable to maintain a meaningful relationship with the Applicant if he is removed from Australia. The Applicant submitted that this primary consideration, of itself, outweighs all other considerations, and is sufficient to qualify as ‘another reason’ to revoke the Cancellation Decision.[30]
(b)the best interests of his minor nieces and nephews in Australia, in particular his nephew (N) who has been diagnosed with autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD);
(c)the Applicant’s otherwise good character and the assessed low risk of reoffending (including remorse and rehabilitation), demonstrated in particular by the time he spent in the Australian community between being searched by the Australian Federal Police (AFP) (in April 2018) and charged with the principal offence (in February 2019), during which time he was subject to no conditions or charges and did not reoffend;
(d)the length of time he has spent living in and contributing to the Australian community;
(e)the impact his removal would have on his family members in Australia; and
(f)the impediments he would face if removed to Portugal, noting that he has not lived there since he was eight-years-old and does not speak, read, write, or understand the Portuguese language, and suffers from multiple health conditions.
[29] A1 [38].
[30] A1 [205].
The Respondent, however, contended that there is not ‘another reason’ why the Cancellation Decision should be revoked because:[31]
(a)the protection of the Australian community and its expectations weigh heavily against revocation, which is consistent with the paramount importance of the protection of the Australian community;
(b)in accordance with paragraph 7(2) of Direction no. 110, more weight ought to be given to the protection of the Australian community in light of the nature of the Applicant’s offending against children and the harm that would flow if he was to reoffend in the same way; and
(c)the considerations weighing heavily against revocation should outweigh those in favour of revocation.
[31] R1 [75]-[77].
Protection of the Australian Community
The first primary consideration, para 8.1(1), focuses on the protection of the Australian community.
Direction no. 110 requires decision-makers to keep in mind that ‘the safety of the Australian community is the highest priority of the Australian Government’ and, to that end, ‘the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’.[32] In this respect, the Tribunal is directed to have particular regard to the principle that:
[E]ntering 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.[33]
[32] Direction no. 110 para 8.1(1).
[33] Direction no. 110 para 8.1(1).
Paragraph 8.1(2) of Direction no. 110 then provides 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.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[34] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct to be considered very serious or serious, it does not limit the range of conduct that may be so regarded.[35]
[34] Direction no. 110 para 8.1(1).
[35] Direction no. 110 para 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction no. 110 provides:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending history is summarised in RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712 at [7], and set out below for ease of reference:[36]
[36] See also R2, D1, G6, pp 63 to 64.

Court Court Date Offence Court Result

Perth District Court of Western Australia 15/08/2019 Possessed child exploitation material Imprisonment: 14 Months concurrent

Perth Magistrates Court 13/04/2011 No authority to drive Fine: $500; disqualified 3 months

Fremantle Magistrates Court 02/09/2008 No authority to drive Fine: $400; disqualified 9 months

Perth Magistrates Court 06/09/2007 Drive contrary to learner’s permit Fine: $200

Perth Magistrates Court 12/09/2006 Unlicensed vehicle Fine: $100

Perth Magistrates Court 12/09/2006 No motor drivers licence Fine: $150; disqualified 3 months

Fremantle Court of Petty Sessions 20/01/2000 Failure to give way from a “Stop” sign Fine: $400 (global)

Fremantle Court of Petty Sessions 20/01/2000 No motor drivers licence Fine: $400 (global); disqualified 3 months

Fremantle Court of Petty Sessions 29/04/1998 Drive contrary to learner’s permit Fine: $200; disqualified 3 months

Fremantle Court of Petty Sessions 29/04/1998 Excess 0.02% Fine $100; disqualified 3 months concurrent

Court	Court Date	Offence	Court Result
Perth District Court of Western Australia	15/08/2019	Possessed child exploitation material	Imprisonment: 14 Months concurrent
Perth Magistrates Court	13/04/2011	No authority to drive	Fine: $500; disqualified 3 months
Fremantle Magistrates Court	02/09/2008	No authority to drive	Fine: $400; disqualified 9 months
Perth Magistrates Court	06/09/2007	Drive contrary to learner’s permit	Fine: $200
Perth Magistrates Court	12/09/2006	Unlicensed vehicle	Fine: $100
Perth Magistrates Court	12/09/2006	No motor drivers licence	Fine: $150; disqualified 3 months
Fremantle Court of Petty Sessions	20/01/2000	Failure to give way from a “Stop” sign	Fine: $400 (global)
Fremantle Court of Petty Sessions	20/01/2000	No motor drivers licence	Fine: $400 (global); disqualified 3 months
Fremantle Court of Petty Sessions	29/04/1998	Drive contrary to learner’s permit	Fine: $200; disqualified 3 months
Fremantle Court of Petty Sessions	29/04/1998	Excess 0.02%	Fine $100; disqualified 3 months concurrent

In relation to the nature and seriousness of the Applicant’s conduct, the Applicant’s submitted that:[37]
[37] A1 [44] - [64].
(a)While he acknowledges that the Australian government has a low tolerance for visa holders who have engaged in criminal or other serious conduct, given:
(i)his lack of other criminal history;
(ii)the circumstances of his offending;
(iii)the time since its commission;
(iv)evidence of rehabilitation; and
(v)evidence that the Applicant has been tested in the community,
it cannot be said that the protection of the Australian community consideration outweighs other considerations weighing in favour of not revoking the Cancellation Decision.
(b)If the seriousness of the Applicant’s offending and the risk of him reoffending combined are ‘given greater weight than other considerations’,[38] then the logical finding for the Tribunal is that the Cancellation Decision be revoked, as his risk of reoffending is so low.
(c)Emphasis should be placed on the fact that the Applicant’s child exploitation material (CEM) offending occurred over a four-month period, the images accessed were all freely available on the internet, he did not save the images for accessing later (rather, they were found in a cached format), that he pleaded to the offending, and that he has not viewed CEM since March 2018.
(d)The sentencing judge did not consider the Applicant’s traffic offences to be serious or relevant to his sentencing in 2019, and hence the Tribunal should focus on the CEM offending when considering the protection of the Australian community consideration.
(e)The CEM offending was serious as it involved him viewing a significant number of CEM images over a four-month period.
(f)He was granted a 20% sentence reduction for his early guilty pleas and cooperation with police, sentenced to 14 months’ imprisonment (being eligible for parole after 7 months) when the maximum available penalty was seven years imprisonment, and was made a reportable offender. That is, the sentencing judge could have sentenced the Applicant to a much longer term of imprisonment and did not, which demonstrates his offending was at the lower end of the scale of seriousness in this type of offending.
(g)There is no trend of increasing seriousness or effect of repeated offending in circumstances where the Applicant’s prior offending history, which consists of traffic offending and three offences as a minor (including one violent offence when the Applicant was 15 years old) was acknowledged as irrelevant by the sentencing judge in 2019.
(h)While serious, the gravity of the Applicant’s CEM offending is mitigated by his lack of prior relevant criminal history, genuine remorse, and actions taking since committing the CEM offending.
(i)The nature and seriousness of the CEM offence must weigh against revoking the Cancellation Decision, however it does not outweigh the Applicant’s risk of reoffending, the best interests of his children, his links to the Australian community, or the extent of impediments he will face if removed to Portugal.
[38] See [38] above.
The Respondent made the following submissions in relation to the nature and seriousness of the Applicant’s conduct:[39]
[39] R1 [35]-[44].
(a)The nature and seriousness of the Applicant’s conduct weighs heavily against revocation.
(b)The Applicant’s offending conduct should be viewed as very serious, having regard to the relevant factors in para 8.1.1 of Direction no. 110.
(c)Possessing CEM is a sexual crime, a crime against children, and a crime against the vulnerable.[40]
[40] Referring to Direction no 110 paras 8.1.1(1)(a)(i)-(ii), 8.1.1(1)(b)(ii) and RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2738, [31] (Senior Member Kelly).
(d)CEM is not a victimless crime, it affects real children who are degraded and violated in order to create a product to distribute to CEM consumers.[41]
[41] Referring to Metcalfe v Minister for Immigration [2021] AATA 3498, [70], [75] (‘Metcalfe’).
(e)The Applicant possessed a significant volume of material including images and videos of ‘very young girls in suggestive poses’, girls from ages 4 to 12, ‘pre-pubescent females being penetrated by adult males’ and child abuse material.[42] The Tribunal should place significant weight on the fact that the applicant possessed CEM in categories that the Tribunal has previously described as horrific, gruesome, and sickening.[43]
[42] R2, D6, S13, p 564.
[43] Metcalfe [76].
(f)The gravamen of the Applicant’s offending was viewing CEM, and as a result of viewing the CEM, it was downloaded to the mobile phone as ‘artefacts’ or data caches.[44] This issue, however, was considered by the sentencing judge and whilst it was a ‘factor that might go in [his] favour’, overall, viewing CEM was still characterised as a very serious offence.[45] Ultimately, the distinction between a person who views CEM and a person who saves it onto their device is of little moment in these proceedings.
[44] Referring to A1 [47].
[45] R2, D6, S13, p 568.
(g)In relation to the Applicant’s contention that the sentence imposed on him reflects that his offending was on the lower end of the spectrum,[46] while the Minister accepts that the maximum term of imprisonment for possessing CEM is seven years and there are, of course, more serious cases than this matter, it nevertheless does not necessarily mean that the Applicant’s offending was on the lower end of the spectrum. This is for the following reasons:
[46] Referring to A1 [61].
(i)The volume and the nature of CEM was serious and not at the lower end of the spectrum. In particular, it included images in ANVIL categories four and five.
(ii)The sentencing judge imposed an immediate term of imprisonment on a first-time offender with positive antecedents.
(iii)The sentence imposed included a 20% discount for an early plea pursuant to s 9AA of the Sentencing Act 1995 (WA) (i.e., but for the discount, the term of imprisonment would have been approximately 17 months). The Tribunal should consider the application of the discount when weighing the sentence imposed.
(iv)The sentencing judge did not suspend all or part of the sentence (which the Applicant sought) because the offending was ‘simply too serious’.[47]
[47] R2, D6, S13, p 571.
(v)Overall, an immediate term of imprisonment reflected the seriousness of the Applicant’s offending and weighs heavily against revocation (although the sentence imposed is not required to be considered by the Tribunal pursuant to para 8.1.1(1)(c) of Direction no. 110).
(h)The Tribunal should have regard to the following factors in assessing the Applicant’s offending:
(i)It was very serious and occurred over a period of nearly four months, it was not a one-off or isolated incident. It is of little moment that viewing and possessing CEM over that period only resulted in one offence.[48]
[48] Referring to Direction no. 110 para 8.1.1(1)(e).
(ii)The fact that someone stops offending after the police investigate them, and that they have been charged is not unsurprising and not a matter that should not weigh in their favour. Unlike the circumstances in Fetelika v Minister for Home Affairs [2023] FCA 95 (‘Fetelika’), the Applicant had not been charged during the period prior to his incarceration and had not taken responsibility for his actions.[49]
[49] Fetelika [74], [86].
·     In reply, the Applicant noted that he had not been investigated or charged when he ceased offending. The Applicant contended that while the circumstances in Fetelika differed because that Applicant had been charged, the Tribunal took in Fetelika that fact into account - as this Tribunal should in relation to the present applicant - and the Respondent’s contention at [50(h)(ii)] above obscures the facts of the case.[50]
[50] A2 [1].
(iii)The Applicant’s contention that he stopped viewing CEM in March 2018, a month before police seized his phone and interviewed him, is inconsistent with his evidence given at the first Tribunal hearing that he stopped viewing CEM immediately after the police raid.[51]
[51] See R2, D10, p 1044.
·     In reply, the Applicant contended that going by the transcript from the hearing on 9 August 2022, the Respondent is incorrect.[52] The Applicant noted that the transcript reads:
[52] A2 [2], [3].
Knowing something is wrong and taking responsibility are two different things, [the Applicant]. What did you do to take responsibility for viewing child exploitation material? --- I completely stopped. I refused to see it again.
·     In reply, the Applicant contended that the Respondent did not directly quote the transcript here because it does not support its point, rather it supports a conclusion that the Applicant took responsibility by refusing to watch it again. The Applicant also contended that there is no reference (in the transcript extract) to the police raid and it is unclear how the evidence is inconsistent.
(iv)The Applicant contended that he had not provided false or misleading information to the Department,[53] (however, he did not disclose convictions from 1997).[54] Additionally, the Applicant has intimated that he does not know any family in Portugal.[55] Yet the Applicant told prison officers he had an aunt in Portugal whom he would stay with. It was not until the Applicant received his notice of cancellation that he represented that he did not know them.[56]
[53] See A1 [63].
[54] R2, D6, p 498.
[55] A3 p 83 [2].
[56] R2, D6, p 599.
·     In reply, the Applicant contended that it is unclear what circumstance the Respondent is claiming the Applicant did not disclose convictions from 27 years ago, as he has not left Australia, or applied for a visa since arriving as an eight-year-old child.[57]
[57] A2 [5].
·     The Applicant also contended in reply that at the first hearing, the Applicant gave evidence that his sisters assisted him to complete the revocation request and his sisters knew he had some family in Portugal (despite having no relationship with them). It is his view that he does not have family in Portugal and alternatively, that he does not ‘know’ family in Portugal.[58]
·     Further, the Applicant noted in reply to W1’s evidence at the hearing on 9 August 2022 that the family members who reside in Portugal have significant health issues and would be ;no help in looking out for [the Applicant] if he was there’, such that ‘to [the Applicant], he doesn’t have family in Portugal’.[59]
(i)Finally, the Applicant’s remorse should be considered in light of the following:
(i)When initially interviewed, he denied having CEM on his phone, and did not admit and but rather expressly denied viewing CEM.
(ii)On 18 October 2019, (after being sentenced) the Applicant represented to the Department of Corrections that the Category 4 and 5 images may been ‘planted’ on his device by police.[60]
(iii)While the Applicant pled guilty at an early opportunity, he repeatedly denied deliberately looking for CEM.[61]
(iv)The Applicant initially told the Department of Justice he had ‘no recollection’ of viewing CEM.[62]
(v)Whilst the Applicant has expressed remorse, the above matters suggest this is contingent on the consequences his actions have had for himself and his family, and that he downplayed the seriousness of his offending and denied the most serious aspect of it despite pleading guilty.
[58] A2 [6].
[59] A2 [7], referring to W1’s statement within A5 [18].
[60] R2, D6, S38, p 666.
[61] R2, D1, G51, pp 257 [2]; D6, S18, p 596.
[62] R2, D1, G9, p 75.

As to the Applicant’s traffic and assault offending, the Respondent submitted that this factor weighs somewhat against revocation because:[63]
(a)Some weight should be given to the Applicant's past driving record, his damage and disorderly convictions, and the assault on his mother.
(b)The Applicant cannot argue that he has an otherwise good record of compliance with the law in Australia.
(c)Further, traffic offences, particularly those involving driving without a licence, are not minor, but rather serious and demonstrate a disregard for Australian laws and the safety of its community.[64]
(d)It is notable that the Applicant admitted to police that he was consciously breaking traffic laws.[65]
[63] R1 [44].
[64] Ahmed and Minister for Immigration [2018] AATA 4458.
[65] See R2, D6, S6, pp 506-7.
The Tribunal has considered the evidence and the parties’ related submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in para 8.1.1 of Direction no. 110.
The Tribunal notes the facts and circumstances of the Applicant’s offences and the convictions imposed. The Tribunal also notes the Applicant has been sentenced to a term of imprisonment and the related sentencing remarks.
The Applicant has been convicted of CEM offending, traffic offending and one charge of ‘Excess 0.02%’ in 1998.
The Applicant’s’ CEM offending, which he accepts is ‘serious’ in nature,[66] falls squarely within the conduct referred to in paras 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(b)(ii) of Direction no. 110 that the Australian Government and the Australian community views ‘very seriously’ regardless of the sentence imposed, being sexual crimes, and ‘seriously’, being crimes against vulnerable members of the community. CEM victims are vulnerable children who are degraded and violated in order to produce material to fuel the CEM consumer market, and fall into categories that the Tribunal has previously described as horrific, gruesome and sickening.[67]
[66] A1 [58].
[67] See Metcalfe.
Additionally, para 8.1.1(1)(a) of Direction no. 110 makes clear that the range of conduct that may be considered ‘very serious’, is not limited to the types of crimes or conduct expressly referred to in that paragraph.[68] The Tribunal has consistently been of the view that driving and traffic offences are serious crimes against other road users[69] that place the lives of other road users at risk.
[68] Direction no. 110 para 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious’, using the same prefix ‘without limiting the range of conduct that may be considered serious…’
[69] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1, [51]-[54] and Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32, [50]-[51], referring within to Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561, [43]-[45].
In considering para 8.1.1(1)(b) of Direction no. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to a forced marriage,[70] whether the crimes were committed against government representatives or officials,[71] and any crime committed while in immigration detention.[72] None of the Applicant’s offending or other conduct falls within the scope of these considerations.
[70] Direction no. 110 para 8.1.1(1)(b)(i).
[71] Direction no. 110 para 8.1.1(1)(b)(ii).
[72] Direction no. 110 para 8.1.1(1)(b)(iv).
The Applicant’s principal offending involved conduct for which he was ultimately sentenced to 14 months imprisonment. This conduct forms the basis of the finding that the Applicant does not pass the character test.[73] While sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, the Applicant’s CEM offending is considered very serious irrespective of the sentence imposed by the courts given it was a crime of a sexual nature and against a child.[74]
[73] Direction no. 110 para 8.1.1(1)(b)(iii).
[74] See Direction no. 110 paras 8.1.1(a)(i), 8.1.1(a)(ii), 8.1.1(1)(c).
The Applicant’s offending history spans from 1998 to 2019 culminating in the CEM offending and marked with two periods of five years or more where the Applicant did not offend. In relation to the frequency of the Applicant’s offending and whether there is any increasing trend in seriousness,[75] the Tribunal has considered the Applicant’s argument that the sentencing judge, having treated the Applicant’s earlier offending as irrelevant, indicates there is no trend of increasing seriousness or effect of repeated offending[76] alongside the Respondent’s position that the sentencing judge imposed an immediate term of imprisonment on a first-time offender, and refused the Applicant’s request to suspend any part of it because the offending was too serious.
[75] Direction no. 110 para 8.1.1(e).
[76] See [49(g)] above.
As to the cumulative effect of the Applicant’s repeated offending,[77] again the Applicant’s position that there is no such effect in circumstances where his prior offending history was considered irrelevant at sentencing is considered along with the Respondent’s remarks regarding the Applicant’s CEM offending not being a one-off or isolated incident and it being of little moment that his viewing and possessing thousands of images only resulted in one offence.
[77] Direction no. 110 para 8.1.1(1)(f).
As to whether the Applicant provided false or misleading information to the Department,[78] having considered the parties’ views, the Tribunal is satisfied that there is no evidence the Applicant was presented with a situation where disclosure of his prior criminal offending was required, and he failed to do so.
[78] Direction no. 110 para 8.1.1(1)(g).
For completeness, the Tribunal notes that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(d), 8.1.1(1)(h), or 8.1.1(1)(i) of Direction no. 110.
Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has an offending history that includes offending which is objectively very serious. The Tribunal acknowledges that the Applicant’s offending history is also marked by periods of time where he did not offend.
Having regard to the evidence and matters relating to which paragraph 8.1.1 of Direction no. 110 are relevant, and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[79]
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[79] See also Direction no. 110 para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[80] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[81]
[80] Direction no. 110 para 8.1.2(2)(a).
[81] Direction no. 110 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[82]
Nature of the harm
[82] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[83]
[83] Direction no. 110 para 8.1.2(2)(a).
In relation to the nature of the harm to individuals or the Australian community should he reoffend, the Applicant submitted that:[84]
(a)The potential harm that could occur should the Applicant reoffend in a similar way to the CEM offending is an increase in indirect support of the international child exploitation industry by viewing images online.
(b)When the likelihood of the Applicant engaging in similar conduct is considered cumulatively with the nature of the potential harm that could be caused, he cannot be seen to pose an unacceptable risk of harm to the community.
[84] A1 [66]-[67].
In relation to the nature of the harm, the Respondent submitted that supporting a criminal enterprise that abuses, humiliates and corrupts children is conduct that is sufficiently serious such that any risk of reoffending in this way is unacceptable.[85] The Respondent also emphasised that the victims are powerless to remove the images or videos, and the Tribunal should accept the sentencing judge’s view that this must cause considerable pain and anxiety.[86]
[85] R1 [47].
[86] See R1 [47], referring to The State of Western Australia v McCarthy [2014] WASCA 210, [71]-[72] where the Court found that the harm caused to victims of CEM is ‘incalculable’ and the Tribunal should have regard to the established fact that detecting and investigating CEM offending is difficult due to its online nature and prevalence. See also R2, D6, S13, p 570.
The Tribunal accepts that the Applicant has, in more recent times, developed a level of insight into offending that may be viewed as remorse for his offending conduct (rather than remorse for the impact his offending has had on his own life and family). The Tribunal also considers that the Applicant has demonstrated an understanding of the significant harm that would be caused to the Australian community should he engage in further offending.
That being so, the Applicant has an offending history that involves CEM and traffic offending. In the Tribunal’s view, it is clear that, should the Applicant commit further very serious and serious offences, this would result in further harm that may cause considerable and widespread physical, psychological, and economic harm to members of the community, including children.
Whether the harm caused, if the Applicant were to reoffend in a similar way, is such that any risk of it being repeated is unacceptable, is addressed below.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[87]
[87] Direction no. 110 para 8.1.2(2)(b).
The Tribunal has considered the extensive evidence from the Applicant, his siblings, other lay witnesses, and expert witnesses regarding his risk of reoffending (and the parties’ related submissions in this regard). Rather than attempt to present this evidence in summary form or otherwise address it in its entirety, and given it appears in detail in various sources,[88] the Tribunal instead makes the following comments, findings and references to the parties’ submissions.
[88] For example, in Annexure A in RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712 and the transcripts of proceedings for the hearings held on 9 August 2022 and 26 November 2024.
In his written submissions, the Applicant refers to the Federal Court’s decision in RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111, [69] where the Court noted that a decision-maker must assess risk and reach a view as to the extent to which the Australian community needs to be protected from the risk of harm the former visa-holder poses, by reference to the factors specifically relevant to the non-citizen who has requested revocation – it is not an abstract assessment.
The Respondent noted that the Full Court recently stated that the approach in Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866, [66] (Banks-Smith J) and Chen v Minister for Immigration and Border Protection [2017] FCA 46, [65], [68] (Burley J) were to be preferred over RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111.[89] The Respondent submitted that accordingly, the Tribunal must have regard to the likelihood that the Applicant will reoffend, but it does not need to make express findings or estimate the level of risk.[90]
[89] R1 [50]. See also RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 108, [15] (Murphy, Abraham and McEvoy JJ).
[90] R1 [50].
The Applicant submitted that while the potential harm is serious, when considered cumulatively with the likelihood of him engaging in further criminal or serious conduct, the risk represented by him to the Australian community is extremely low (noting that a past offender can never present a ‘zero’ risk), and there is insufficient evidence on which to base a finding that he could be considered to pose an unacceptable risk to the Australian community such that it outweighs all considerations.[91]
[91] A1 [70].
The Applicant then refers to a number of authorities where the Tribunal found as such and in cases where the sexually based offences committed against children were of a more serious nature than the Applicant’s CEM offending.[92] In the Applicant’s view, this serves to demonstrate that not all matters involving CEM and/or sexual offences involving children are considered so serious that any risk of them being repeated is ‘unacceptable’, or that this primary consideration must always be determinative of the outcome.[93]
[92] A1 [71]-[81].
[93] A1 [83].
The Respondent contended that factual findings made by differently constituted Tribunals are of little assistance and each matter turns on its own facts.[94]
[94] R1 [48].
The Applicant submitted that the Applicant poses an objectively very low risk of reoffending (that could not be reasonably considered to be unacceptable’), given:[95]
[95] A1 [84]-[151].
(a)Dr Watts’ opinion that he does not see the Applicant as being a particular risk to the community;
(b)Mr Balfour’s view that the Applicant’s risk of committing further CEM offences is low;
(c)Mr Williams’ report of the Applicant’s positive engagement with the rehabilitation process;
(d)The Applicant’s self-reflection on his life and his behaviour that led him to offend, during his sessions with his counsellor and mental health nurse;
(e)The Applicant’s voluntary contact with ReSet and Holyoake, demonstrating commitment to reducing his risk of reoffending and to understand the reasons he offended.
(f)The Applicant is appropriately medicated, now having an awareness of his physical and mental health diagnoses.
(g)The incredible family support he has received (and will continue to receive if released) since their becoming aware of his offending when he was sentenced in August 2019 and becoming aware of his physical and mental health conditions.
(h)The Applicant’s consistent expressions of remorse for his behaviour evident from his cooperation with police, the sentencing remarks, expert reports, and letters of support.
(i)The Applicant’s time in the community for a period of approximately 15 months between 23 April 2018 and at least 1 February 2018 where was not subject to any charges, bail or other conditions and his not having accessed or viewed CEM since March 2018.
(j)The Applicant’s time in detention (since October 2020), where he has been in possession of a mobile phone with internet access and has not accessed or viewed CEM.
(k)The Applicant’s ability to stop offending due to his awareness of the consequences if he did.
(l)The Applicant will be required to report to the Australian National Child Offender Register upon release until at least August 2027.
(m)The likely higher level of tolerance of harm that the Australian community would have in relation to him having spent not only his formative years but almost his whole life in Australia, having arrived in Australia as an eight-year-old and not having left the country since.[96]
[96] See Direction no. 110 para 5.2(6).
The Respondent submitted that the Applicant poses an unacceptable risk of reoffending for the following reasons:[97]
(a)Paragraph 8.1.2(2)(b)(ii) of Direction no. 110 requires that the Tribunal consider the risk the Applicant presents now, and there is no ability for the Tribunal to delay its decision until the Applicant has participated in psychological or social intervention. Whilst the Applicant has undertaken some treatment, Mr Williams’ report states that he still has unmet treatment needs.
(b)Dr Watts’ report suggested that there was an unmet treatment need that contributed to his offending. Stating that his consumption of child pornography was ‘used as a way of escaping negative trauma’, that it was a risk factor if ‘his life goes badly’ and his ‘trauma escalates’, and the Applicant ‘needs to treat the trauma’.[98] Further, that his risk assessment would be ‘more confidently low’ if the Applicant completed the sex offender course.[99] Dr Watts’ conclusions are contingent on further treatment.
(c)Mr Balfour appears to opine that the Applicant ought to complete a sex offenders’ course.[100] In any event, Mr Balfour’s report opines that Dr Watts’ assessment should be disregarded.[101]
(d)In those circumstances, the Applicant has an unmet treatment need and the Tribunal should be satisfied that, as at the time of the decision, the Applicant has not completed treatment, and this contributes to his risk of re-offending. Although, it accepts that since the first hearing, the Applicant has undertaken some treatment with Dr Williams.
(e)Mr Balfour and Mr Williams state that alcohol is a factor in the Applicant’s offending.[102] The Applicant’s alcoholism is untested outside of a detention environment. Accordingly, the Applicant’s risk of re-offending must be viewed considering the risk that he will return to excessive alcohol consumption.
(f)Mr Williams’ opines that the Applicant has hebephiliac (post-pubescent children) sexual interests.[103] It is unclear whether Mr Balfour has considered the Applicant’s risk of reoffending on the basis that he has hebephiliac tendencies. Rather, Mr Balfour’s report was focused on whether the Applicant had paedophiliac tendencies.[104]
(g)The Applicant’s time in the community should be given less weight because it was in circumstances where the Applicant was aware that police and law enforcement were aware of his CEM consumption, and he would reasonably expect that would continue after they had executed a search warrant and seized his phone. Further, limited weight should be placed on the Applicant’s non-consumption of CEM whilst these proceedings are on foot. It is reasonable to expect that a person with such a matter on foot would not re-offend during that period.
(h)It accepts that the Applicant being a registered on the Australian National Child Offender Register (‘ANCOR’) is a protective factor. The Tribunal, however, should have regard to the fact that ANCOR reporting obligations rely on, to some degree, self-reporting by registered sex offenders.
[97] R1 [51]-[52].
[98] R2, D1, G34, p 216 [37]-[38].
[99] R2, D1, G34, p 216 [38].
[100] A3, p 30, [4]-[5].
[101] A3, pp 33 to 34 [17]-[19].
[102] A3, pp 27, 76-7.
[103] A3, p 77.
[104] A3, p 35. At the hearing, Mr Balfour gave evidence that he made no distinction between the two terms.

The Tribunal accepts that the evidence supports the following propositions:
(a)The Applicant has shown a commitment to rehabilitation, however still has unmet treatment needs.
(b)The Applicant is remorseful for his offending behaviour, however this appears to the Tribunal to still be predominantly in relation to the impact his behaviour has had on his own life and the lives of family members, in particular his eldest daughter, and to a somewhat lesser extent how his offending behaviour has impacted the victims of his offending.
(c)The Applicant has been independently assessed as a low risk of reoffending.
(d)The Applicant has not accessed or viewed CEM (or otherwise offended) since March 2018, including a 15-month period in the community prior to going to prison.
(e)The Applicant understands the effect of his offending behaviour on his migration status, which serves as a deterrent on future offending.
As such, the Tribunal finds that in the Applicant’s case, he presents a low risk of reoffending. The Tribunal considers that the circumstances of the Applicant’s offending are such that this low risk is unacceptable, notwithstanding it being likely that the Australian community would have a higher level of tolerance of harm given he has spent almost his entire life in Australia. The Tribunal acknowledges that this finding in itself is not determinative of the Applicant’s case, with the ‘weighing exercise’ to be engaged in once all the relevant considerations have been addressed.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the low, unacceptable risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs heavily against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Tribunal understands that the Applicant assaulted his mother when he was 15 years old and convicted of assault occasioning bodily harm.
There is also the suggestion that the Applicant threatened his ex-partner while on the telephone to W4. No charges were laid, nor was any further action taken.[105]
[105] A1 [156].
The parties agree these matters ought to be given little weight and the Tribunal finds this consideration weighs very slightly against revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
1Decision-makers must consider any impact of the decision on the non-citizen's    immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant submitted that this consideration should weigh significantly in favour of revocation of the Cancellation Decision.[106] In addition to the matters canvassed in his written submissions,[107] at hearing the Applicant emphasised that he has nine siblings in Australia who have supported him through three Federal Court proceedings and two Tribunal proceedings, five of his siblings have given evidence in support of him remaining in Australia, all of his family members are permanent residents of Australia, his parents poor state of health, and the detrimental impact his removal would have on his close knit family, along with the fact that his CEM offences occurred 30 years after his arrival in Australia.
[106] A1 [173]
[107] A1 [159]-[173].
The Respondent accepted that this consideration should weigh in favour of revocation of the Cancellation Decision.[108] The Respondent added at hearing that it is ‘quite clear’ that the Applicant’s removal would have a significant effect on his family.
[108] R1 [55]
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal is required to consider any impact of a decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or have an indefinite right to remain in Australia.[109] The Tribunal is also required to consider the strength, nature, and duration or any other ties the Applicant has to the community.[110]
[109] Direction no. 110 para 8.3(1).
[110] Direction no. 110 para 8.3(2).
The Tribunal accepts there is an abundance of evidence[111] attesting to the Applicant’s close and enduring familial relationships and the significant impact his removal would have on his family, in particular his parents (who both have health concerns), children, and siblings. The Tribunal accepts that the Applicant arrived in Australia as a young child, began offending 10 years after his arrival and has spent considerable time in Australia contributing positively to the Australian community working and volunteering.
[111] See, for e.g., Annexure A alone.
In the circumstances, the Tribunal finds that the strength, nature, and duration of ties consideration weighs very heavily in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination as to whether cancellation or refusal under s 501 is, or is not, in the best interests of children who are under the age of 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors are:[112]
(a)the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually, or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[112] Direction no. 110 paras 8.4(4)(a)-(h).
The Applicant’s minor age children
The Applicant has two minor age daughters, aged 8 and 14 years old, who are both Australian citizens. The Applicant has seen his daughters twice (in person) since he was imprisoned in 2019 and is in daily contact with them via electronic means.
The Applicant submitted that the best interests of the Applicant’s minor children weighs strongly in favour of revocation of the Cancellation Decision, outweighs all other considerations, and is sufficient to qualify as ‘another reason’ to revoke the Cancellation Decision.[113]
[113] A1 [205].
While the Respondent accepts that the best interests of the Applicant’s minor children weighs in favour of revocation,[114] it is not to the extent proposed by the Applicant.[115]
[114] R1 [60].
[115] See R1 [57]-[60].
The Tribunal has considered the abundance of evidence and related submissions from the parties on this consideration as it relates to the Applicant’s minor age daughters.[116] Having done so, it makes the following comments and findings relevant to the matters in para 8.4(3) of Direction no. 110:
[116] A1 [175] - [205]; R1 [57] - [60]; A2 [8] - [12] and Annexure A.
(a)The Applicant lived with his daughters and ex-partner as a family unit prior to his going to prison in 2019. The Applicant’s daughters have visited him twice in recent times, however their relationship has been marked by an approximate five-year absence, with regular contact maintained by electronic means.
(b)The Applicant’s daughters have 10 and four years, respectively, until they turn 18 years of age. While meaningful contact has been extremely limited, the Tribunal accepts the Applicant has maintained a parental relationship with his daughters, which has the potential to be a positive relationship in the future in circumstances where, particularly in relation to his older daughter, he and several of his sisters are of the firm view that his influence is key to keeping his daughters on a positive path.
(c)There is no evidence that the Applicant’s offending conduct has had any negative impact on his daughters, or that they have been subject to family violence, abuse, or neglect by the Applicant.
(d)It is plain from the evidence that separation would have a detrimental effect on the Applicant’s daughters, in particular his older daughter, whom the Tribunal accepts is having behavioural issues, using substances, and is experiencing significant emotional distress. The Tribunal also accepts electronic communication would be insufficient in these circumstances and that the Applicant’s daughters would be unable to travel to visit him if he were removed.
(e)While the Applicant’s ex-partner fulfils a parental role in relation to their daughters, and her current partner also has a parental role to some extent, there is evidence that these relationships, particular in relation to the Applicant’s older daughter, are in themselves fraught with difficulties.
(f)There is no clear expert evidence regarding any certainty of the effect the Applicant’s release would have on his daughters’ behaviours, in particular his older daughter. Rather, the certainty about the effect the Applicant’s return to his daughters would have comes from observations from the Applicant’s sisters and also from the relationship the Applicant had with his daughters prior to his going to prison.
(g)Further, the Applicant’s family’s criticisms of the parental roles his ex-partner and her current partner play have been said in circumstances where the Applicant’s siblings have not met the Applicant’s ex-partner’s current partner, and the only direct account provided in this regard is that of the Applicant’s ex-partner’s, in her statement.
(h)Therefore, while the Tribunal is hesitant to accept the Applicant’s family’s criticisms of the Applicant’s ex-partner and her current partner (regarding parenting styles and providing financially for their daughters for example), it accepts that there is clearly an estrangement for the large part with the Applicant’s family that the Applicant’s ex-partner is experiencing challenges parenting her daughters, in particular her older daughter, that the Applicant’s older daughter’s behaviour is highly concerning on its face, and any positive direct/face-to-face influence from any available source, including the Applicant, would be beneficial. This is notwithstanding that the Tribunal accepts the Respondent’s submission that the Applicant being a positive role model to his older daughter, as he presently stands, is a hope and a wish ‘at its highest’.
(i)The Applicant’s older daughter’s views expressed in her statement[117] speak of her love for her father, her upset and struggle with his absence, and her wish to spend time with him if released. The Applicant’s older daughter said she has had ‘some discussions’ with her mother as to why the Applicant went to prison.
[117] A4.
The Applicant’s minor nieces, nephews, and great nieces
The Tribunal understands the Applicant has 10 minor nieces and nephews who would be affected by his removal, and two great nieces. The Tribunal accepts that the Applicant’s nephew, E, who is currently nine years of age and with whom he maintains regular contact, would be more significantly affected given his close relationship with the Applicant.[118]
[118] A1 [207]-[209].
In these circumstances, the Tribunal finds this primary consideration, weighs very heavily in favour of revocation of the Cancellation Decision insofar as it relates to the Applicant’s minor children, and moderately in favour of revocation with regard to the Applicant’s minor nieces, nephews, and great nieces. Overall, the Tribunal considers heavy weight should be afforded to this consideration in the Applicant’s circumstances
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that:
[t]he 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 to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) of Direction no. 110 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of [particular kinds].
The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paras 8.5(2)(a)-(f) of Direction no. 110. Those particularised types of harm generally reflect the types of conduct identified in paras 8.1.1(a)-(b) as conduct which is considered ‘very serious’ or ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated ‘expectations apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community’. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.[119]
[119] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBRv Minister for Home Affairs (2019) 272 FCR 454 and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208, [86]-[87].
Paragraph 8.5(4) of Direction no. 110 directs that:
[t]his consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above [in para 8.5], without independently assessing the community’s expectations in the particular case.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached, or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction no. 110.
(a)Paragraph 5.2(2) states that ‘the safety of the Australian Community is the highest priority of the Australian Government’;
(b)Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, ‘should expect to… forfeit the privilege of staying in Australia’;
(c)Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community;
(d)Paragraph 5.2(5) states that 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; and
(e)Paragraph 5.2(6) states that, 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.
The Applicant submitted that given he first arrived in Australia as an eight-year-old child, the Australian community would afford him a higher level of tolerance, noting that he has lived in Australia for more than 36 years.[120] The Applicant also accepted that the nature of the Applicant’s character concerns are such that the Australian community would accept he should not continue to hold a visa.[121]
[120] A1 [212].
[121] A1 [212], referring to Direction no. 110 para 8.5(2)(c).
The Applicant also submitted that should the Tribunal assess that this consideration weighs against revocation of the Cancellation Decision, it should be given less weight due to his low risk of reoffending, the best interests of his two minor daughters (who are Australian citizens), the difficulties he will experience in Portugal, and the impact that non-revocation would have on his family in Australia.[122]
[122] A1 [214].

The Applicant says he has telephone calls with a mental health nurse every six months and sees a psychologist, Mr Williams. The Applicant said that he commenced talking to a mental health nurse just after the first Tribunal hearing (in 2022). The Applicant said he has discussed his CEM offending with Mr Williams, because he wants to help himself, not just to help with his present proceedings. The Applicant said that Mr Williams had said to him that pornography is like a drug. The Applicant said that after a while, he ‘explored other avenues’, that he probably suffered from depression, and that he was not thinking clearly about what he was doing.
The Applicant said that he is going to keep talking to Mr Williams and that his family helps pay for this.
When asked to explain why the CEM offending happened, the Applicant said he was depressed, his alcohol use stopped him from thinking clearly, and he was suffering from PTSD. When asked, the Applicant said he was not presently taking antidepressants.
The Applicant said that he has not viewed pornography or CEM since he went to prison because he does not want to be deported or for there to be ‘more victims’. The Applicant said that if he remained in Australia, he would not access CEM in order to not put himself at risk of being deported, to lessen demand for CEM, and so that his family and kids will not suffer.
The Applicant said that he has changed as a person since he went to prison, that he thinks before he acts and speaks, and that he has developed coping strategies such as talking to someone and not drinking alcohol.
As to his relationship with his children, the Applicant said that he communicates with them via Snapchat and daily via WhatsApp video calls. The Applicant said his children have visited him twice in detention, once in December 2023 and once ‘last month’ (being October 2024). The Applicant said his sister (W1) brings his children when they visit. The Applicant said these visits were great and very emotional, and that during them he would discuss with his older daughter her relationship with his ex-partner’s current partner and school matters. When asked, the Applicant said that these are the only (face to face) visits he has had with his children in the last four years and that he was committed to being a good father ‘no matter what’.
The Applicant said that if he were to remain in Australia, he would speak with his ex-partner about shared custody of their children.
The Applicant said that prior to his time in prison, he and his ex-partner and children were always together. The Applicant said that the children currently live with their mother ‘100%’. The Applicant said that his ex-partner is supportive of his remaining in Australia, that she believes their children need a father, and asks him ‘why are they holding you?’
The Applicant said that his ex-partner asks him for help, mainly with their older daughter, and he also provides financial help. The Applicant said his ex-partner gets no financial help from her current partner. When asked, the Applicant said his children don’t like his ex-partner’s current partner too much, his children say his ex-partner’s current partner ‘yells all the time’, and his ex-partner’s current partner does not live with his ex-partner and their children.
The Applicant said that if he did not remain in Australia, his kids would be ‘emotional wrecks’ and he could not afford for them to visit him.
When asked, the Applicant said that his older daughter knows that he went to prison ‘for pornography’ and he explained this to her ‘a few years ago’.
The Applicant said it would be difficult to maintain contact with his children via electronic means because of the time difference (between Australia and Portugal). When asked if he would maintain communication with his children via electronic means, taking into account this time difference, the Applicant said he would have no employment in Portugal and therefore he would not have a phone and his family in Australia would not support him in Portugal. The Applicant accepted the proposition that funds could, theoretically, be transferred to him via electronic means. When asked if, on the basis that he had access to a phone with internet, he would maintain his relationship with his children via video calls from Portugal if required, the Applicant said that he did not think that he would, because his state of mind would have deteriorated (by then, if he were removed).
The Applicant said that he would commit suicide if he landed there (referring to Portugal).
The Applicant said that he had concerns for his children’s behaviour since he has been in prison. The Applicant said that his older daughter had been ‘hanging around the wrong crowd’, destroying buildings, drinking (alcohol), and had been ‘out of control lately’. The Applicant said that if he remained in Australia, his older daughter will ‘start behaving again’. The Applicant said that his children are the reasons he wants to remain in Australia and that he would be ‘gutted’ and ‘afraid’ if he were removed.
As to any future work opportunities in Australia, the Applicant said that he had a friend who could give him a job and that his brother-in-law could get him a position at Alcoa.
The Applicant said his ex-partner hocks jewellery. When asked, the Applicant said that his ex-partner’s current partner provides no financial assistance, and he knows this because his ex-partner always asks for financial help with rent, bills, and phone payments, and she has said a few times that her current partner ‘doesn’t help’ (financially). When taken to a reference in his ex-partner’s statement that her current partner helps with ‘financial situations’ when she does not have money at the time,[141] and asked whether he could be sure that his ex-partner’s current partner provides no financial assistance, the Applicant maintained that his ex-partner’s current partner does not help financially and he bases this belief on the fact that he helps his ex-partner in this manner.
[141] A3, pp 81-82 [22].
The Applicant said that he does not believe that his children look up to his ex-partner’s current partner and that ‘they don’t really like him’. When asked, the Applicant agreed it would be fair to say that his ex-partner, who spends the most time with their children, would have a better (more accurate) view of the relationship their children have with her current partner.
When taken to Mr Williams’ treatment notes,[142] the Applicant said that he had had appointments with Mr Williams, and that he had spoken to him about his offending and a range of other matters.
[142] R3.
When taken to the following entry in Mr Williams’ notes:[143]
[143] R3, p 3.
Porn over the phone – sharing with mates – porn stating [sic] to expand – nudist camps – photos – looking at them – family oriented stuff – had kid in there but not why I was looking at it – went – was on a nudist site…
The Applicant indicates these notes were accurate, emphasising that he was looking at porn at this time (which was ‘maybe 2018’, although he was ‘not sure’) and that he did not share the images he viewed on these nudist camp websites.
When it was put to the Applicant that of the 2,431 images that he was found to have possessed and viewed on his telephone, the vast majority (being 2,409 images) were Category 1 images[144] and the remaining images were Category 2 (11 images), Category 4 images (4 images), and Category 5 images (7 images),[145] the Applicant said that he was not purposefully looking for those more serious images. The Applicant said that when he was looking at nudist websites in 2017 and 2018,[146] in doing so he viewed a reasonably large number of Category 1 images and a handful of Category 4 and 5 images, that he does not remember the dates he viewed the Category 4 and 5 images, that he wasn’t actually searching for images in Categories 4 and 5, and that viewing the Category 4 and 5 images did not prompt him to look for more images of the same kind.
[144] Category 1 being the least serious and Category 5 the most serious using the Australian National Victim Image Library. See summary at R1 [38].
[145] See R1 [38]-[39].
[146] The Statement of Material Facts indicate that the CEM images were found to be present in the course of his looking at nudist sites from 9 November 2017 to 23 March 2018: see R2, D6, S10, p 513.
As to the reference in Mr Williams’ treatment notes to:[147]
[147] R3, pp 4-5.
…nudist camp material – in the beginning I wasn’t – changed towards then – younger teenagers – 12-13
…
Girls only – wasn’t undeveloped – more 12, 13, 14, 15 – 18 and over…
The Applicant said that he did not tell Mr Williams that he was sexually interested in very young children, but that he was sexually interested in younger teenagers aged 12 to 13.
When asked, the Applicant said he remembered speaking to Mr Balfour about the following matters during Mr Balfour’s telephone assessment of him on 26 February 2024:[148]
[148] A3, p 24 (being p 18 of Mr Balfour’s report dated 3 April 2024).
I asked [the Applicant] what is a paedophile, and he replied, “Well according to Luke [Williams] it’s anyone that likes kids under the age of 12. For a sexual nature”.
In view of his CEM offending behaviour, I asked [the Applicant] whether he is a paedophile, and he replied, “No. Maybe I was, but I’m not anymore”.
I asked [the Applicant] whether he is sexually attracted to children, and he replied, “Not in that way no [physical contact]”.
The Applicant also said, regarding his comment that he was not sexually attracted to children ‘in that way’, that was the case in general, not just in relation to children under 12 years of age and despite the fact he had previously told Mr Williams that he had previously been sexually interested in young teens (which he had been before, but not anymore).
The Applicant told the Tribunal he had two very young great-nieces born in 2024, who are yet to visit him in detention. When asked what contact he had with his nieces and nephews, other than N, the Applicant said that in the past he would see his nieces and nephews on special occasions and at family gatherings.
As to Mr Balfour’s note that the Applicant has had ‘ample opportunity to commit further CEM offences whilst in immigration detention’,[149] the Applicant said that he has not viewed CEM since the police seized his phone (in 2018) nor has he looked at pornography since the police came to his house.[150]
[149] A3, p 32 (being p 26 of Mr Balfour’s report dated 3 April 2024).
[150] See also R2, D3, p 420 [3].
MR BALFOUR’S EVIDENCE
This is a summary of the Mr Balfour’s oral evidence at the hearing held on 26 November 2024. It is in addition to the evidence contained in his report dated 4 April 2024.[151]
[151] A3, pp 6-40, including letter of instruction dated 22 February 2024 from Estrin Saul Lawyers and Migration Specialists.
Mr Balfour said that he is in involved in a government run program for sex offenders and it is the first CEM offender-specific rehabilitation program in Australia.
Mr Balfour said that his overall clinical impression of the Applicant is that he was cooperative and of average intelligence.
Mr Balfour said that the Applicant’s severe alcoholism and childhood trauma led to his PTSD and that hyperarousal was one of his PTSD symptoms. Mr Balfour also said that the Applicant’s alcohol abuse and internet pornography addiction are maladaptive coping strategies for his untreated PTSD and the pornography addiction led him to his CEM addiction.
Mr Balfour said that sex offenders are a complex group of offenders who present with various levels of risk of reoffending. Mr Balfour said that adult male paedophiles are at the highest risk of reoffending[152] and that CEM offenders are at a lower risk of reoffending.
[152] A3, p 29.
Mr Balfour said that he did not believe the Applicant satisfied the diagnostic criteria for a paedophiliac disorder and was of the view that the Applicant can at best be described as having a paedophilic orientation. When asked where that opinion sat on the continuum of severity, noting Mr Williams’ view that the Applicant’s sexual interests are best characterised as hebephilia,[153] Mr Balfour said:
[153] See A3, p 77. Mr Williams writes that the Applicant’s interests would be better characterised as Hebephilia, that is ‘an interest in post-pubescent children’.
(a)There are sub-populations of offenders.
(b)He does not himself draw a distinction between paedophilia and hebephilia.
(c)His own report takes into account the Applicant’s attraction to young teenage girls.
(d)The viewing of CEM is a consequence of internet pornography addiction. It is part of the way that pornography is marketed. CEM is found in the ‘dark shady corners of the internet, but also on Pornhub’.
(e)Viewers become habituated to internet pornography then look for more extreme arousal.
Mr Balfour said that the Applicant has a deviant sexual interest in children but the majority of CEM offenders do not progress to ‘hands on contact offences’, and if CEM offenders do reoffend, they reoffend with further CEM offences.
Mr Balfour said that one risk factor for reoffending is when an offender is in denial of their offending, even after having been through the legal process in relation to it. Mr Balfour said that it helps an offender’s rehabilitation when that offender acknowledges they have a problem, but still may have poor insight into why they offended. Mr Balfour said that some of the reasons why an offender may deny their offending is the serious circumstances of their offending and the profound shame they feel, with that shame also being a suicide risk.
Mr Balfour said that the Applicant had told him that he was sexually attracted to pre-teenage children for his own sexual gratification, specifically post-pubertal[154] female children aged 13 years or older, and that he would masturbate to image of these children.
[154] Mr Balfour said that it was complex to define the word ‘puberty’.
When asked what he meant by his reference to the Applicant being ‘best described as having a paedophilic orientation of the non-exclusive type’,[155] Mr Balfour said that this means a person with an interest in child pornography (but no interest in contact with children) as well as a sexual interest in adult women.
[155] See A3, p 29.
Mr Balfour was taken to the following extract from his report:[156]
[156] A3, p 25.
I asked [the Applicant] what is his general attitude towards his offending behaviour, and he replied, “I was very sorry and I’m very ashamed for doing it. I was disgusted in myself. I embarrassed myself and my family, my friends, my kids, everyone. I feel so sorry I wish that I never did it and I feel sorry for the victims as well. Because at the end of the day, they’re the ones that have to suffer for the rest of their lives”.
I asked [the Applicant] to explain to me why his offending behaviour is wrong, and he replied, “Very wrong and very, very bad. Well because of the age of the victims. Well, it’s so bad you don’t know what happened to get these pictures done. You don’t know if they’ve been forced. The harms to their mental state. Because they’re gonna [sic] suffer for the rest of their life. They can suffer from depression, self-harm, and suicidal thoughts. There [sic] there’s that thing – what you call it? – demand, and supply. The more that people look at it; the more victims there’s gonna be”.
I asked [the Applicant] who are the victims of his offending behaviour, and he replied, “The victims are the kids and their families. Well, the ones I was looking at they were all European backgrounds. 12 and over”.
“I asked [the Applicant] to describe the impact of his offending behaviour upon the victims, and he replied, “Depressed. They probably can’t function in life. They probably can’t uphold a family relationship or job. They must be thinking ‘What the hell is going on?’. It must be like hell for them”.
In his opinion, Mr Balfour said that the Applicant has expressed remorse for his offending, understood the wrongfulness of it, had realised it is not a victimless crime, understands the supply and demand nature of CEM, and noted that prior to the Applicant’s CEM offending, the Applicant was a responsible partner and father.
When asked about how and/or why the Applicant offended, Mr Balfour said that the Applicant is not in denial of his CEM offending, his insight into his offending is improving and developing, and the Applicant is having sessions with Mr Williams. Mr Balfour said that the Applicant viewed pornography as a form of escapism and once he became habituated to it, the images were no longer titillating ‘like a drug addict needing a higher dose’. Mr Balfour said that this led to the Applicant viewing nudist photos and then CEM.
When asked, Mr Balfour said that he had assessed the Applicant against the criteria for PTSD and found that the Applicant’s personal history and presentation satisfy the DSM-V diagnostic criteria for PTSD.[157]
[157] See also A3, p 27.
As to the following extract from Mr Balfour’s report:[158]
[158] A3, p 29.
There is no such thing as an absolute zero risk of recidivism when assessing child sex offenders. In risk assessment terminology, the definition of an acceptable risk is one that is a tolerable risk (i.e. a risk that is bearable in a specific context based on the current values of society). With regard to sex offenders, the acceptable risk level is called the desistence level. The desistence level refers to a sex offender’s level of risk falling to the baseline level of risk for sex offending in the general population (i.e., men who have no prior sexual offending history who spontaneously offend for the first time).
Mr Balfour said that the threshold as to what is a risk to society is a socially constructed one. Mr Balfour also said that while there are no actuarial risk assessment tools for CEM offenders,[159] the base rate of reoffending for CEM offenders is ‘very low’ to begin with. Mr Balfour also said that CEM offenders do not have access to rehabilitation in prison as they are considered to be at a lower risk of reoffending than contact offenders.
[159] See also A3, p 32 [15].
When asked, Mr Balfour said that he considered the Applicant has had the opportunity to reoffend as he has access to the internet in immigration detention.[160]
[160] See also A3, p 32 [11].
Mr Balfour answered ‘yes’ to the question of whether being on the register of offenders has an impact on the risk of reoffending.
Turning to the Issues Paper Mr Balfour provided with his report,[161] Mr Balfour highlighted a number of paragraphs, which state:[162]
[161] A3, pp 41-71, titled “Issues Paper F: People Who Have Committed Sexual Offences,” by Owen Ormerod, date of submission 22 December 2020.
[162] A3, pages 40 and 43.
(a)The principal recommendation of the issues paper is to discontinue mandatory inclusion of low-risk sex offenders on the (sex offenders) register, particularly CEM-only offenders (who typically present with very low levels of risk of recidivism).
(b)The courts could instead conduct risk assessments by psychological and/or psychiatric professionals with expertise in this offending area, to establish whether the individual should be included on the register.
When asked if he considered the Applicant to have understood the consequences of his previous actions in viewing CEM, and how he believed this would impact the Applicant’s future behaviour, Mr Balfour said:
(a)the Applicant ‘gets how terrible it is, being a father of two daughters’;
(b)the Applicant has suffered catastrophic consequences to his life, in relation to his mental health, his relationship with his ex-partner and their two children, his facing deportation, and his standing in the community; and
(c)the Applicant has been subject to formal and informal layers of punishment, having challenged the matter for five years.

As to whether it matters that a person with an internet pornography addiction has a previous interest in pubescent children, Mr Balfour said that if the Applicant was sexually interested in young teenagers separate from his internet pornography addiction, this would not change his position regarding the Applicant’s risk of reoffending, because if the Applicant had had such an interest, then why did he stop at CEM offending and not go on to contact offending or online grooming?
W6’S EVIDENCE
This is a summary of W6’s oral evidence at the hearing held on 26 November 2024.[163] It is in addition to W6’s evidence contained in written statements provided in both proceedings. Those written statements are:
[163] W6 did not give oral evidence at the hearing on 9 August 2022.
·W6’s statement dated 16 April 2020 (R2, D1, pp 250-1); and
·W6’s statement dated 21 November 2024 (within A5).
W6 gave evidence that she had witnessed the Applicant make a number of changes since 2019, including attending Alcoholics Anonymous (‘AA’) courses and counselling, and that he is more compassionate. W6 said that the Applicant would not have done those things before and that it has been like having her old brother back.
W6 said that if the Applicant were removed the impact on her would be ‘massive’, and the biggest impact would be on their mum and dad and also her eldest daughter, who is now 21 years old. W6 said her parents suffer from medical issues and, if the Applicant were removed, her parents’ stress and depression would magnify.
W6 said ‘everyone’ misses the Applicant and things are not the same. She said that the Applicant would have difficulties adjusting to life in Portugal, that he would not have the support that he has in Australia, he would struggle with the language in Portugal, and would also struggle being away from his family.
W6 said that if the Applicant remained in Australia, she would support him 100%, with job applications, appointments and financially. W6 said that if the Applicant were released, he would stay with his parents or his sister, W1.
W6 said her biggest worry is the impact that the Applicant’s current circumstances are having on his older daughter, who is drinking alcohol, vaping, and hanging around the wrong crowd in abandoned buildings ‘smashing things up’.
W6 said that if the Applicant’s older daughter had him back, she would not get away with being out at night and there is ‘no way’ she would be out driving with older people in their cars.
When asked, W6 said that she had not seen the Applicant’s older daughter since January 2023, due to an argument that the Applicant’s ex-partner had had with W4 and all the current contact between herself and the Applicant’s older daughter is through social media.
W6 said that the Applicant knew what he did was wrong and that he has a lot of support if he is released.
When asked, W6 said that she does not spend time at the Applicant’s ex-partner’s house and that the Applicant’s ex-partner and her current partner do not come to family events together as much as they used to. W6 said that what she knows about the Applicant’s older daughter comes from what the Applicant’s older daughter and W1 tell her, not from her direct observations of the family home setting.
As to her comment in her statement that:[164]
[164] A5.
I did ask [the Applicant’s older daughter] if anything was happening at home and where is she [referring to the Applicant’s older daughter having told W6 that her mother doesn’t love her and is never home] and she stated that mum is too busy with [her current partner] and doesn’t care if she is out all the time so she is going to have fun.
W6 said that this was in relation to the Applicant’s older daughter having made a complaint to her on a trip to Rottnest ‘a fair time ago’ that she could go out and her mum doesn’t care, so she can do what she wants.
In relation to her additional comment that ‘I know if my brother can go home then there is still time to get her back to where she should be’,[165] W6 said that if the Applicant guides his older daughter, she would ‘calm down a bit’. W6 said that she knows that the Applicant would be there for his older daughter and while she wants to say that she knows, rather than hopes, that the Applicant’s older daughter’s behaviour would improve with his guidance, she also acknowledges that the Applicant ‘needs counselling’.
[165] A5.
W3’S EVIDENCE
This is a summary of W3’s oral evidence at the hearing held on 26 November 2024. It is in addition to W3’s oral evidence at the hearing held on 9 August 2022[166] and to the evidence contained in written statements provided in both proceedings. Those written statements are:
[166] W3’s evidence at the hearing on 26 November 2022 is summarised in RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712 [85]-[89] and also appears in its entirety in the transcript of proceedings for the hearing held on 9 August 2022: R2, D10, pp 1055-61.
·W3’s statement dated 15 April 2020 (R2, D1, pp 244-6);
·W3’s statement dated 4 August 2022 (R2, D5, pp 487-9); and
·W3’s statement dated 21 November 2024 (within A5).
W3 gave evidence that she does not contact the Applicant as much as she would like and that she last had contact with him on 21 November 2024.
W3 said that the Applicant is a calm and loving person, who says ‘I love you’ to his parents, which was not the case prior to him being in prison.
W3 said that she ‘believes 100%’ that the Applicant will not reoffend and that he has had ample opportunity to do so in prison.
W3 said that she has had contact with the Applicant’s daughters when she sees them, and with the older daughter over social media. W3 said that she last saw the Applicant’s daughters at the Royal Show earlier that year, when her sister W1 picked them up and then she met up with them all.
W3 said that the Applicant’s daughters are ‘not coping’ (with his absence) and that the Applicant’s older daughter is ‘going downhill quickly’, drinking (alcohol), taking ‘selfies’, dressing provocatively, ‘on Instagram’, that she had ‘destroyed Rockingham pub’, that ‘all her friends are over 18’, that she is ‘quiet’, ‘not doing so great at school’, ‘vaping’ is ‘a shell of her former self’ and was ‘bubbly’ before (the Applicant went to prison).
W3 said that the Applicant’s older daughter gets home from school at 8pm, waits for her mum to go to sleep so that she can go out, and has no parental guidance.
W3 said that based on what the Applicant’s older daughter tells her, the Applicant’s ex-partner has ‘given up’[167] on her older daughter as she does not want to start an argument. W3 said that the Applicant’s ex-partner has ‘threatened no contact’ until the Applicant is released.
[167] See A5 at [4] of W3’s statement dated 21 November 2024.
W3 said that the Applicant gave his older daughter structure and rules.
W3 said that the Applicant’s older daughter said that:
(a)Her mother ‘dumps’ her and her sister to her grandmother’s so she can go out with her current partner;
(b)She does not like her mother’s current partner;
(c)She does not get along with her mother’s current partner’s daughter, who is around the same age and she ‘gets told off’.
When asked, W3 said that she had never met the Applicant’s ex-partner’s current partner and she has not spoken to the Applicant’s ex-partner in over a year.
W3 said that if the Applicant is removed, his older daughter will end up an alcoholic, on drugs, or pregnant.
W3 said that if the Applicant is removed, their mother ‘is the next one to go’ as she would not be able to cope and their father’s health would also rapidly deteriorate.
W3 said she does not know how she would cope if she ‘gets the call’ to say that the Applicant will be removed. W3 said if the Applicant is removed, she would not be able to grieve for him as she would be looking after her daughters. W3 also said that the Applicant is removed, ‘they would have to pick him up in a body bag’.
W3 said that her own daughters still cry for their late grandmother, one and a half years after her passing.
W3 said that if the Applicant were released, she could support him, take him places, help him financially, get him a car, their brother could help with work and their father could also help. W3 said that she currently assists the Applicant with the costs of his food, clothing and counselling. W3 said the Applicant did not previously rely on his family for support because he was embarrassed.
W1’S EVIDENCE
This is a summary of W1’s oral evidence at the hearing held on 26 November 2024. It is in addition to W1’s oral evidence at the hearing held on 9 August 2022 and to the evidence contained in written statements provided in both proceedings.[168] Those written statements are:
[168] W1’s evidence as at the hearing on 26 November 2022 is summarised in RNSQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4712 [74]-[81], and also appears in its entirety in the transcript of proceedings for the hearing held on 9 August 2022: R2, D10, pp 1087-94.
·W1’s statement dated 7 April 2020 (R2, D1, pp 242-3);
·W1’s statement dated 27 October 2021 (R2, D1, pp 341-4);
·W1’s statement dated 4 August 2022 (R2, D1, pp 485-6); and
·W1’s statement dated 21 November 2024 (within A5).[169]
[169] This statement includes a video recording of several Instagram posts from the Applicant’s older daughter’s Instagram account, referred to in paragraph [3] of the statement.
W1 said that the difference in the Applicant’s behaviour (since being in prison) is ‘like 360°’, that he is ‘mellow’ and that she does not even recognise him. W1 said that she and the Applicant ‘talk more’ and are closer now.
W1 said that the Applicant would never have asked for help before (but does now). W1 said that she supports the Applicant by helping him meet the costs of food, clothing, counselling, and phone credit.
W1 said that the Applicant is definitely not likely to reoffend, as he would have done it by now.
W1 said that before the Applicant went to prison he worked Monday to Friday, did ‘everything’ with his children, including living with them, go camping with them, and go to the beach with them.
W1 said that the Applicant’s children have been ‘100% affected’ by his absence, especially his older daughter. W1 said she always sees the Applicant’s daughters on school holidays and his older daughter has said that she ‘can’t wait for dad to get out’.
W1 said that she thinks the Applicant’s ex-partner is ‘not there much’ and that the Applicant’s older daughter is rebelling, seeking attention, drinking (alcohol), and hanging around older people as a result of ‘not having her dad there’.
W1 said that the Applicant’s older daughter’s behaviour is getting worse, that this year is worse than last, that she has ‘snuck out playing chicken with cars’, she is never home, comes home from school at 8pm, rides in cars with 17-year-old boys with no licence, and is only going to get worse.
W1 said that the Applicant’s daughters have ‘had their fights’, are ‘friends at school and then not’ but they also have periods where they do ‘get on’.
W1 said that the only way the Applicant’s older daughter can get to sleep is to drink alcohol and that she had seen her on Instagram drinking.
W1 said that she had taken the Applicant’s daughters twice to immigration detention to visit the Applicant. W1 said that these visits were ‘really good’, that both of the Applicant’s daughters cried when they left, and that his younger daughter would not let go of the Applicant.
W1 said that the Applicant’s ex-partner does not take their daughter’s to visit him and her own contact with the Applicant’s ex-partner is when she goes to pick up the Applicant’s daughters to take them somewhere.
As to what W1 thought the impact on the Applicant’s ex-partner would be if the Applicant were removed, W1 said that the Applicant’s ex-partner would prefer the Applicant to remain in Australia ‘to stay and help with [the Applicant’s older daughter]’. W1 said that the Applicant’s ex-partner says that their older daughter ‘gets moody’ and argues with her younger sister and it could give her (the Applicant’s ex-partner) a break if the Applicant was in Australia.
W1 said that if the Applicant remained in Australia, he would live with their parents and she (W1) would contribute to the cost of the Applicant’s counselling.
W1 said that if the Applicant was removed, their mother, who is ‘a mess’, would not cope and would probably have a heart attack, and that this would have a ‘domino effect’ on their father. W1 said that the Applicant’s younger daughter would be upset if he were removed and his older daughter, who is eager for the Applicant to come home, ‘might do something reckless’ and W1 is scared of ‘what path [the Applicant’s older daughter] would take’. W1 said that the Applicant’s older daughter needs routine and structure, and his younger daughter is growing up without her older sister, as she is always out.
W1 said that if the Applicant was removed, it would ‘crush and kill’ their family and the Applicant would ‘kill himself’ and ‘not get on that plane’.
W1 said that she has the closest relationship with the Applicant’s older daughter (out of everyone in their family), staying in regular contact through social media and phone messages and also has more face to face visits with the Applicant’s older daughter than anyone else.
W1 said that her relationship with the Applicant’s older daughter ‘is not superficial’, that the Applicant’s older daughter ‘tells her everything’ and that this is ‘unsettling’.
W1 said that she tried to motivate the Applicant’s older daughter to stay in school and two years ago she offered the Applicant’s older daughter a ‘trip to Bali if no wagging for a year’ but this did not work. W1 said that the Applicant’s older daughter is not ‘wagging’ school ‘as much’.
As to the reference in W1’s statement that the Applicant’s older daughter:[170]
[170] A5 [6].
…often asks me for money for food, for Uber, to get home. I give it to her but I’m not sure if I am enabling her behaviour. However the alternative is that a 14-year-old is stuck out on the street somewhere.
W1 said that she provides financial support to the Applicant’s older daughter, that she only speaks to the Applicant’s ex-partner when she picks up the Applicant’s daughters to take them out, and would stay at their house for half an hour to an hour. W1 said that while she has the best relationship with the Applicant’s ex-partner out of the other members of the Applicant’s family, she and the Applicant’s ex-partner are ‘not close’ and she had never met the Applicant’s current partner.
When asked whether the Applicant’s older daughter has ever spoken to W1 about what she thinks of the Applicant’s ex-partner’s current partner, W1 said that the Applicant’s older daughter told her that she once was angry that her mother had dropped her and her sister to her grandmother’s so that her mother could go out with her current partner and that she was ‘not the biggest’ fan of him.